Delays in the approval of corresponding local legislation are preventing the full enforcement of certain international human rights conventions in Cayman, according to both government officials and the courts.
Some of those conventions include the United Nations Convention on the Rights of the Child, and the European Convention on the Protection of Human Rights and Fundamental Freedoms.
Those conventions, and several others involving the protection of certain rights and civil liberties, have been extended to the Cayman Islands via the UK. However, in certain cases the absence of corresponding local laws has made it difficult for Caymanian authorities to enforce the protections set out in the conventions.
The issue was raised during a discussion Friday among several local agencies and visiting Foreign Commonwealth Office Minister for Overseas Territories Meg Munn. Ms Munn was asked about the rights of children in Cayman.
Ms Munn responded: ‘Children should have the rights, which are set out in the UN Convention of the Rights of the Child.’
Children and Family Services Director Deanna Look Loy said that Cayman is party to that convention, but that it has not been implemented fully because domestic legislation has not been completed.
‘The legislation (the Children’s Law) has been passed in the house but it requires regulation,’ Mrs. Look Loy said. ‘Those regulations have been drafted and should go before Cabinet very soon.’
A recent report from the Cayman Islands Human Rights Committee raised some troubling human rights issues regarding Cayman’s juvenile justice system; including the jailing of children in adult prisons and a lack of legal representation for juvenile defendants.
The HRC said Cayman was failing to comply with international obligations designed to ensure young offenders get the proper supervision, treatment and education.
Another concern related to compliance with international human rights conventions arose recently in a case before the Cayman Islands Court of Appeal.
Defence attorneys had argued Allan Garfield Ebanks should not have been sentenced to a mandatory 10 years in prison on a firearms charge since the amendment, which included mandatory minimum sentencing in the law, was passed by the legislature two years after Mr. Ebanks’ 2003 offence.
Attorney James Austin-Smith said certain provisions of the 2005 amendment to the Firearms Law were contrary to fundamental rights guaranteed by the European Convention on the Protection of Human Rights and Fundamental Freedoms.
Part of that convention states: ‘Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.’
However, the Court of Appeal in its ruling stated the following: ‘Unless and until the legislature in the Cayman Islands enacts legislation incorporating the provisions of the (European) convention, the convention cannot be enforced by this court.’ (see Caymanian Compass, 10 December)
HRC secretary Danielle Coleman said Cayman Islands residents can take cases where they feel their rights have been violated to the European Court of Human Rights once all potential local remedies have been exhausted.
‘However, this is time consuming and very expensive,’ Ms Coleman said in response to questions from the Caymanian Compass.
In order to extend international conventions to Cayman, island lawmakers must first request those conventions. The UK must then be satisfied that domestic legislation has been enacted to give effect to and comply with convention obligations.
‘Domestic legislation must be drafted so that the UN Convention on the Rights of the Child can have full effect here in Cayman,’ Ms Coleman said. ‘International conventions are applicable here. However, to get any meaningful recourse from the Cayman courts, domestic legislation must be in place.’