Elected lawmakers will have the final decision on whether laws violate the human rights of a resident of the Cayman Islands under the government’s constitutional reform plan.
The People’s Progressive Movement proposal, released Saturday, sets out a number of rights aimed at protecting the dignity of individuals including; the right to life, the right not be subject to torture or slavery, the right to a fair trial, the right to property, the right to religion, the right to marriage between members of the opposite sex, and the right to the privacy of one’s home and correspondence.
Rights promoting democratic integrity include; the right to free speech, and the right to lawful and peaceful demonstration. The proposal also suggests other rights such as the right to environmental protection, the rights of children to be free of abuse or exploitation, the right of reply to false allegations, and the right of access to government information.
Cayman’s present constitution does not specifically protect individuals from government interference with their lives or civil liberties.
According to the government, some human rights are considered absolute, while others can be limited in legislation to protect public morals or national security. The courts will then decide on a case-by-case basis whether any law violates those rights.
But, under the PPM’s plan, it’s up to the legislature to decide how or even whether to follow a court’s declaration if it rules humans rights have been breached.
‘If it is that the elected representatives of the people have been put there to do a job, which is to make laws — part of that job is to make good on something that they made a mistake on,’ said Constitutional Review Secretariat Director Suzanne Bothwell. ‘They are accountable.’
‘It brings to the fore the question: ‘do you want the judiciary making laws for you?”
Cayman has had several international human rights conventions extended to it via the UK, and allows residents to appeal cases where they believe their rights have been violated to the European Court of Human Rights.
However, not all of the international conventions are supported by local legislation, and are therefore unenforceable by Caymanian courts. Among those conventions are the United Nations Convention on the Rights of the Child, and sections of the European Convention on the Protection of Human Rights and Fundamental Freedoms.
Human rights advocates here have said that appeals to the European Court of Human Rights can be time consuming and expensive, and that not everyone has the means to pursue such a case.
The bill of rights issue is one Caymanians will weigh in on in May’s referendum, and is expected to be a major battleground in constitutional reform discussions.
Mrs. Bothwell admits it’s not something citizens here have readily warmed to.
‘I’m not sure whether people here understand why these (rights) are important,’ she said. ‘From the man on the street there is a lack of understanding about human rights.’
The country’s leadership has previously stated its belief that the UK would not accept a modernised constitution without a Bill of Rights contained in it. The public was told the same thing recently by UK consultant Jeffrey Jowell during a public meeting held at UCCI in November on constitutional reform.
However, opinions vary on whether the bill of rights should be embedded in the constitution.
As early as two years ago members of the Opposition United Democratic Party and the Cayman Islands Minister’s Association advocated making the bill of rights a separate local law. The idea was to make sure cultural and social norms of Cayman were preserved and that human rights legislation is not simply copied from the UK or the European Union.
‘If we do not Caymanianise the Bill of Rights, it will Europeanise us,’ Pastor Al Ebanks said at the November constitutional review meeting.
In March 2006, Pastor Ebanks had voiced fears that the Bill of Rights would be very difficult to change if it were included in the constitution.
The minister’s group also expressed concerns at the time that a Bill of Rights in Cayman’s constitution would lock the islands into international models which conflicted with ‘traditional ethics’ of communities. Various aspects of homosexuality were major concerns.
It’s expected that Cayman’s constitution as proposed by the government will seek to define marriage as the union of a man and a woman.
While heterosexual marriages are addressed briefly in the constitutional reform proposal, a specific area that the document does not mention is the right to freedom of the press.
Mrs. Bothwell said she believes freedom of the press is ‘part and parcel’ of any of freedom of speech provisions.
‘Whether or not there is a need for a specific provision speaking to the press itself, I think that is a matter that needs to be discussed,’ she said.