Prof: Cayman needs bill of rights

A legal expert hired to advise Cayman in drafting its new constitution said a bill of rights will be a necessary element in that document, if the island wants the revised constitution approved by the United Kingdom.

‘I think it would be difficult in negotiating with the British government not to have one,’ said Professor Jeffrey Jowell, who is the UK’s representative on the Council of Europe’s Venice Commission. ‘In the past, you might have been able to say ‘oh well, the United Kingdom don’t have a bill of rights so why should we?’ But now the UK does have one.

‘There are very few countries in the world that do not have a bill of rights,’ he said.

Mr. Jowell’s comments came during a well attended public meeting held earlier this month at the University College of the Cayman Islands hosted by the Constitutional Review Secretariat. The event was set up by the secretariat office to give island residents a chance to ask their questions about a bill of rights to a selected panel of local experts.

Secretariat director Suzanne Bothwell told the group that, as a democratic society, there was an ‘expectation’ that Cayman would establish a bill of rights.

‘It is not only because they say so,’ Ms Bothwell said. ‘We have our own human rights issues that we recognised. So how are we supposed to deal with it?’

‘When people decide where to do business in the world, one of the things that they look at is; ‘what is the social status of this country? Is it democratic in its operations? What happens if I open my business – can I feel comfortable as an investor?’

Some of those who attended the meeting questioned how much input Cayman would have in a new bill of rights, or whether the document would simply be a copy of what now exists in the UK or in Europe.

Mr. Jowell said there are some universal human rights issues that UK officials would look for in the Cayman Islands proposed constitution.

‘There are some aspects of the European Commission on Human Rights that are absolute in all bills of rights,’ he said, adding those generally include freedom of expression and association, as well as guarantees of certain civil and political rights.

‘There’s not much room for negotiation there because I think any democracy will have to have them.’

However, Mr. Jowell said citizens should take every opportunity to ‘Caymanianise’ a bill of rights.

‘If we do not Caymanianise the bill of rights, it will Europeanise us,’ said Pastor Al Ebanks, one of the panellists at the meeting who responded to questions from the audience.

‘Tradition of fairness’

One question asked of the panellists was whether the Cayman Islands would see any advantages to adopting a bill of rights, over the long-known ‘tradition of fairness’ that exists here.

‘Just because there isn’t a written bill of rights it doesn’t mean that the people of the Cayman Islands don’t respect each other’s rights,’ said attorney Ben Tonner, who is a member of the Cayman Islands Bar Association. ‘But is that tradition alone enough?’

For instance, Mr. Tonner noted that Caymanians won their right to vote in the 19th century, a hard-fought victory. But he warned the government still has the power to legislate that right away if it is not enshrined in a constitution.

Pastor Ebanks said a bill of rights written into Cayman’s constitution would also give the country more protection against activist judges who, in some other countries, can throw out laws passed by legislatures.

‘A court of law, a single judge sitting on a bench, could strike down the law,’ he said. ‘Many of our judges have been brought to us from overseas. Do we want them legislating from the bench on our behalf?’

Other panellists took issue with whether Cayman’s tradition of fairness was adequate in today’s society.

‘Our planning process is fair to the applicant,’ said Department of Environment Director Gina Ebanks-Petrie. ‘It’s not fair to any ordinary citizen who may have a legitimate concern regarding the potential impact of a particular development.’

Freedom of Information Coordinator Carol Excell suggested that the bill of rights also enshrine the public’s right to access government information. Cayman just passed its first Freedom of Information Law this year.

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