A working draft of the Cayman Islands proposed Bill of Rights is far too complex to suit its purposes and to be understood by the general public, according to special interest groups involved in talks with the United Kingdom this week.
Worse, according to an analysis by the Human Rights Committee, the draft contains certain legally vague words or phrases which could leave it open to wider legal challenges by individuals who feel their rights have been violated.
“The introduction and use of vague, undefined concepts in the current working draft is…problematic,” HRC officials noted in an analysis presented Tuesday. “Concepts such as ‘values,’ ‘morals’ and ‘social justice’ will be difficult for the courts to interpret and creates greater scope for legal challenges in the future.”
For instance, sections of the proposed Bill of Rights from a 24 October working draft contain exceptions to certain rights such as the right to private and family life, the right to assembly and association, and the right to movement which all contain the catch-phrase “to the extent that is reasonably justifiable in a democratic society.”
Exceptions to those rights can be made in the interest of ‘public morality,’ among other issues, which the HRC points out is a subjective concept at best.
The HRC also noted that sections on non-discrimination rights and the right to a fair trial contained within the Bill of Rights are both lengthy and difficult to understand.
“A lay person will have to cross-reference four different subsections (in the non-discrimination section of the bill) in order to try to understand what right he or she actually has,” the committee stated. “This type of drafting is not conducive to ensuring all members of the public clearly understand their rights.”
The Chamber of Commerce also appealed to government officials to make sure the draft constitution is written in “plain English.”
“The second draft makes no attempt to simplify the language of the original constitution and represents more of a cut and paste exercise incorporating the legal language that appears in many of the other Overseas Territories and Crown Dependencies that is intended to be read by legislators and attorneys,” Chamber President Eddie Thompson said.
Such a “cut-and-paste” method, according to the HRC, makes it more difficult for those drafting the constitution to take proper account of Cayman’s history and culture.
The HRC said the Bill of Rights in particular should be drafted in positive language; telling people what rights they do have rather than what they can’t do. The committee suggested a separate section be drafted to put a general limitation on human rights.
That proposal attempts to objectively qualify certain limitations placed on human rights. The limitations would have to be in accordance with the law, be enacted for a legitimate aim and not impair the essence of the right.
“Legitimate aims” are defined as measures taken for the purposes of securing national security, the protection of public safety, public health and morals, and the rights of others.”
Both the HRC and the Chamber said the successful completion of the second round of constitutional negotiations this week was a must.
‘It would be a tremendous national tragedy if the constitutional modernisation process fails to reach a satisfactory conclusion,” Mr. Thompson said.