UK seeks draft Constitution changes

The United Kingdom’s Constitution Review Team that visited last week presented a document to the Cayman Islands Government that suggested more than two dozen changes to the 2003 Draft Constitution, it was announced at the Cabinet press briefing Friday.

The changes all have to do with Part 1 of the draft Constitution, which is the Bill of Rights section that deals with the fundamental rights and freedoms of the individual.

Cabinet Minister Alden McLaughlin said the Foreign and Commonwealth Office team proposed the Tuesday meeting to discuss Human Rights, during which it presented the document.

‘This document indicates what it is the FCO wishes the Cayman Islands to consider… and what it wants changed in the Draft Constitution,’ Mr. McLaughlin said.

‘They made it clear to us that they want us to consider these points; there was no indication we have to accept what is proposed.’

Mr. McLaughlin said the Opposition received the document at the same time the Government did, noting that Julianna O’Connor-Connolly represented the Opposition at the meeting. Members of Cayman’s Human Rights Committee attended as well.

The preamble of the FCO Review Team’s document stated that the provisions for the fundamental rights and freedoms of the individual set out in the Draft Constitution should be strengthened and improved in order to reflect more accurately the key human rights obligations which extend to the Cayman Islands.

‘Those obligations derive from the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and the European Convention on Human Rights (ECHR),’ the document stated, adding that the obligations are especially relevant because the Cayman Islands recently opted to accept indefinitely the right of individual petition to the European Court of Human Rights.

The changes proposed vary in nature.

In Section 1, where it lists grounds of discrimination, the UK suggests religion; language, association with a national minority, property birth, other status be added and ‘national and social origin’ replace ‘place of origin’.

Section 2 of the draft Constitution deals with the right to the protection of life. The UK would like to see the elements of the section deleted that state a person shall not be regarded as having been deprived of his life if he dies in the defence of property or if he dies in order to prevent the commission of criminal offence.

Another change suggested concerned the Section dealing with the right to personal liberty.

Subsection (2) of that Section in Cayman’s draft reads: ‘Any person who is arrested or detained shall be informed as soon as it is reasonably practicable, in a language he understands, of the reason for his arrest or detention’.

The UK wants to see ‘as soon as reasonably practicable’ changed to ‘promptly’ and the words ‘and of any charge against him’ added to the end of the sentence.

In addition, the UK wants Cayman to consider adding two subsections that would confirm an individual’s right to an attorney of his choice, or at public expense, and to be informed as soon as he is brought to a police station or other place of custody of his rights to an attorney.

The right to an attorney at public expense currently does not currently apply to non-Caymanians in some cases – such as for drug offences – Mr. McLaughlin said.

There are several recommended changes which are a result of concerns expressed by the Human Rights Committe that monitors compliance with the International Covenant of Civil and Political Rights with relation to what it calls ‘excessive restriction on the freedom of movement of non-nationals’.

The suggested changes deal with the ability of any non-national lawfully present in the Cayman Islands to be able move freely throughout the Cayman Islands; to reside anywhere in the Cayman Islands; and to leave the Cayman Islands. Another change deals with the grounds for expulsion of non-nationals from the Cayman Islands.

The FCO document also noted that the right to an education was not covered at all in the draft Constitution.

The UK would like to see provisions in the Draft Constitution relating to education rights, which would provide for a free education to all children, whether they were Caymanian or non-Caymanian.

Mr. McLaughlin noted that some of the UK’s requests were fundamental in nature, but others, like the right to a free education for every child legal resident in the country, more aspirational in nature.

‘Some of these provisions we can’t comply with at this stage because we simply can’t afford it,’ Mr. McLaughlin said, noting that even the UK has adopted the Right to Education Protocol with a reservation.

That reservation states the UK will adopt the Protocol only so far as it is compatible with efficient instruction and training and avoidance of unreasonable public expense.

Mr. McLaughlin also left no doubt the People’s Progressive Movement still wants to see the Bill of Rights enshrined in the Constitution.

The local clergy is lobbying to have the Bill of Rights separated form the Constitution and made into a separate piece of domestic legislation so as to give the public more control over it.

‘What sort of Bill of Rights would it be if every government that gets in could change it willy-nilly at will,’ he asked.

‘The UK is not going to settle for anything less [than a constitutionally enshrined Bill of Rights] and Cayman should not settle for anything else,’ Mr. McLaughlin said.

The matter will in any case be one of the many issues discussed in the public consultation process that will follow.

Mr. McLaughlin said the various meetings with the FCO team gave the Government a good idea of what the UK will and will not accept with regard to the Constitution.

‘There is room for negotiation and some give-and-take on [some issues],’ he said, noting however, that some rights are so fundamental, they are non-negotiable.

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