A draft proposed bill of rights for inclusion in a new constitution was released to the public Monday.
The document contains many similarities to a bill of rights included in a 2003 draft constitution Caymanian lawmakers negotiated with the United Kingdom.
The government announced last week that all parties to the recent negotiations with member of the UK Foreign and Commonwealth Office were largely in agreement with the provisions of the proposed draft bill of rights.
Human rights listed in the current proposal include; the right to life, the right not to be tortured or receive inhuman treatment; the right not to be enslaved; the right to personal liberty; and the right to a fair trial.
It also includes several new sections regarding protection of the environment and children, detailing court actions when laws passed by government are incompatible with existing human rights, and proposing the creation of a Human Rights Commission.
Not all rights are absolute. Provisions relating to freedoms of religion, expression, assembly, private and family life, movement, and marriage have exceptions. All essentially give reasonable justifications for actions contrary to the right which are done ‘in the interests of public order, public morality, or public health’ or for protecting the rights and freedoms of others.
Not everyone is afforded equal protection under this draft proposal. For instance, local laws will continue to restrict the right of entry, movement and residence of non-Caymanians.
Non-discrimination provisions within the proposed Bill of Rights are also severely restricted. The section contains an exception clause that essentially allows discrimination in special circumstances where ‘there is a reasonable proportionality between the means employed and the purpose sought to be realised.’
The long-awaited human rights proposals regarding marriage do not actually define that union, since lawmakers have already defined it in local legislation as the union of a man and a woman. The proposed Bill of Rights merely allows the free union of members of the opposition sex, and affirms their right to found a family.
Freedoms of conscience and religion are explained in somewhat more detail. The proposed bill states that ‘no person attending any place of education shall be required to receive religious instruction or take part in or attend any religious ceremony or observance that relates to a religion other than his or her own.’
However, the bill also states that no religious community or denomination will be prevented from providing religious instruction, regardless of whether that community is receiving financial education grants from the government.
Most private schools in Cayman do receive funding assistance from government and most of them are religious schools.
The right to protection of property is also included in the proposed bill of rights, although it does nothing to restrict government’s power of compulsory acquisition for public projects it deems necessary.
Certain rights for individuals detained by police are also set out in the bill, including the right to remain silent and the right to be advised by an attorney. The bill also makes it illegal for anyone to receive punishment outside of the application of law.
The sections of the bill dealing with the protection of children and the environment do not specifically detail those protections. Rather, they state the government ‘shall…enact laws which promote the well-being and welfare of children’ and that government will ‘have due regard to the need to foster and protect the environment…’
Precisely how these two areas are handled would be left entirely to local lawmakers under the current bill of rights proposal.
The bill would give legislators ultimate responsibility for changing laws which Cayman’s courts rule are incompatible with existing human rights. In other words, if lawmakers make the mistake, they will be the ones to correct it.
In its final substantive section, the bill proposes the creation of a Human Rights Commission consisting of five members who would be appointed by the governor. The bill requires at least two commission members to be experienced lawyers.