Bill of rights fight rages on

A public war of words is under way between the Cayman Islands Human Rights Committee and the government over the proposed bill of rights in the islands’ draft constitution.

Kurt Tibbetts

Kurt Tibbetts

The committee has refused to support changes made to the draft document that would be the first bill of rights in Cayman’s history because it believes the proposal will not protect anyone from discrimination in areas involving the provision of health care, housing, and employment among others.

‘It would send the wrong message to the strong and the weak in future generations; to the former about how they are entitled to behave and to the latter about what they are required to accept,’ an HRC statement issued last week read.

Further, the Human Rights Committee has released a three page letter it received in June 2008 from an unnamed local gay and lesbian group. The letter was sent to the HRC in hopes it would advocate for the inclusion of gay rights in the new governing document.

‘Gays and lesbians in these islands have been and continue to be discriminated against in all facets of society in the Cayman Islands and we have lived and continue to live in fear,’ the 30 June letter read. ‘We beseech the Crown to intervene for our protection.’

Cayman Islands voters will decide in a 20 May referendum whether the draft constitution actually becomes the law of the land.

Last week in the Legislative Assembly, Leader of Government Business Kurt Tibbetts blasted the HRC for the position it had taken in opposing the bill of rights, claiming the committee’s stance threatened to ‘destroy a national consensus’ on the constitution.

‘All parties made concessions in order to reach agreement on a document that everyone could support,’ Mr. Tibbetts said. ‘It is wrong for the HRC to now attempt to derail the final approval of the new constitution because they have not succeeded in obtaining all they pushed for.’

However, HRC officials pointed out later in the week that they had indeed agreed to compromise on several points in the bill of rights, including the issue of whether the bill would apply only to government or whether it would extend to private entities as well.

The draft proposal of the bill of rights only provides those protections against the government. In other words, they would not apply between an individual and their employer, or an individual and their church.

HRC officials refused to back away from what they referred to as fundamental objections to the government’s proposed changes in the anti-discrimination section of the bill.

According to the final draft of the constitution, the right not to be discriminated against would no longer be considered a ‘free-standing right.’

The committee’s first concern is that ‘the most vulnerable groups’ in Cayman including women, the elderly, children, the mentally ill, physically and mentally disabled people, homosexuals and others ‘would be deprived of valuable and necessary constitutional protection as a result of the elimination of the free standing aspect of the right (to non-discrimination).’

Also, the committee stated that ‘no justification (for the change) has been put forward apart from the expression of vague concerns by the Cayman Ministers Association about conferring rights on gays and lesbians in our community.’

The HRC listed several areas where the current bill of rights proposal might limit an individual’s civil or human rights.

For instance, a disabled person could not compel the government to install wheelchair ramps or handrails at public buildings; a native Caymanian would be unable to compel government to pass equal pay legislation; men could not compel government to introduce paternity leave (which is only offered to civil service employees currently); a homosexual couple could be denied health care by the Health Services Authority simply because they are gay; government could actually discriminate in providing health care or housing for any reason, including a person’s skin colour.

‘At the heart of every viable constitution or bill of rights throughout history, there has been the principle that all persons are equal and entitled to equal treatment before the law,’ the HRC statement read. ‘The draft Cayman constitution has abandoned that idea.’

Mr. Tibbetts pointed out that United Kingdom negotiators had agreed to the draft bill of rights and said that the document met all of the UK’s international human rights obligations. Yet, he said, the committee was ‘determined to campaign against the draft bill of rights’ on the basis that it does not go far enough.

‘Cayman presently has no constitutional provision for human rights,’ Mr. Tibbetts said. ‘Whatever its perceived shortcomings by the HRC, the present draft bill significantly advances human rights protection in this jurisdiction.’

At this point, it’s unlikely there will be any further changes to the draft constitution that UK officials have already agreed to. Mr. Tibbetts said the committee’s opposition to the bill of rights means it would rather have no bill of rights, instead of one it doesn’t agree with.