HRC clarifies constitutional position

The Cayman Islands Human Rights Committee issued a press release last Friday clarifying its position with regard to the constitution modernisation process.

In addition, the HRC took exception to the Cayman Islands Government saying in a press release on 6 October that the working draft bill of rights had broad consensus with the non-governmental organisations involved in the process – including the HRC – when it had not been sent a copy of that working draft bill of rights or asked to comment on it.

‘Moreover, following the first round of Foreign and Commonwealth Office talks, the HRC’s understanding was that the FCO will provide a working draft of both the constitution and the bill of rights in due course.’

With regard to its position on how human rights should be applied in the new constitution, the HRC stated it did not presently advocate horizontal application of rights for the Cayman Islands. A horizontal application would mean an individual could enforce human rights provisions against individuals or private entities; with a vertical application, an individual could only enforce human rights provisions against the government.

The HRC’s statement is consistent with its position paper issued in April with regard to the government’s constitutional modernisation proposals.

‘The Bill of Rights will set out the fundamental human rights of each citizen and the Government, but does not apply horizontally between private individuals,’ the HRC said in that position paper. ‘However, horizontal application of rights is an important issue, which should be addressed by Cayman, at minimum, to clarify the extent to which private schools, companies or individuals are also to be bound by human rights principles.’

The draft working paper did address the issue of private schools, stating they had a right – whether or not they received a government subsidy or grant – to impose requirements on employment, admission or curriculum designed to maintain the school’s religious ethos.

The HRC did state stronger opinions on the subject of the horizontal application of human rights in its April position paper.

‘The HRC also considers that horizontal application of human rights principles – that is between one individual and another private body – is desirable, as it would create a more widespread human rights culture and broader appreciation of the importance of human rights,’ it stated. ‘Again, if implemented, this would represent an improvement for Cayman to the position in the United Kingdom. In the United Kingdom, the horizontal application of human rights is not clearly dealt with in its Human Rights Act and this has left both academics and the courts to speculate as to whether private companies, clubs and private schools are bound by human rights principles.’

However, in September, in response to questions from the Caymanian Compass, HRC reiterated its position that it did not advocate the horizontal application of human rights in the constitutional modernisation process, but that it was still something it thought the Cayman Islands should address.

The HRC was one of the non-governmental organisations represented at the constitution talks that took place two weeks ago. In its opening statement at those talks, the HRC clearly stated its current proposals sought only a vertical application of human rights.

‘However, the HRC believes that direct horizontal application to private bodies should also be considered at a later stage for Cayman, in order to develop a full human rights culture,’ the HRC stated. ‘Indirect horizontal application of rights will likely flow through the obligation of the legislature to consider human rights principles when passing new laws, including those which impact private businesses and individuals.

‘Accordingly, considerable care will therefore have to be taken in relation to the definition of ‘government’ to which the bill of rights will apply, particularly in relation to quasi-public bodies, associations and entities which receive Government funding.’

That definition of governments seems clearly outlined in part 26 of the working draft of the bill of rights under the section titled Interpretation of the Bill of Rights.

The HRC stated again during the opening session of the FCO talks that it believed the Cayman Islands would benefit from addressing the issue of horizontal application of rights in its Constitution.

‘This is one of the deficits in many Commonwealth Caribbean constitutions and is currently under consideration as part of the reform process in a number of these jurisdictions,’ the HRC stated. ‘It is most sensible for this issue to be properly addressed for Cayman to learn from those experiences.’

With regard to is position on the Cayman Islands Government’s working draft bill of rights, the HRC stated in last week’s press release that it was in fact in broad agreement with it, but not in total agreement.

‘The HRC remains concerned that a number of critical issues, such as aspirational rights – to education, housing or health car – and an exhaustive list of the proposed grounds of non-discrimination, are absent from the Government draft document,’ it stated, adding that those issues and other important ones were not fully discussed at the first round of talks and that there was no broad consensus on those issues.

‘The HRC hopes that the Government’s decision to release its working draft does not negatively impact the further discussions with the FCO, who are currently preparing another draft bill of rights document for consideration by the Cayman Islands’ delegation, or cause confusion to the people.’