The Cayman Minister’s Association wishes to reiterate our confidence that the new draft Constitution affirms the rule of law, it acknowledges the human dignity of all, and it declares equality for all and the rights to enjoy freedom for all before the law (Section 1, (2) a).
The CMA has considered the arguments advanced, in particular by the HRC, and we equally and ardently defend our position and reject the contention that the new Constitution as drafted does not provide comprehensive human rights protections for certain groups, merely because these groups are not specifically named in Section 16 of the bill of rights, freedoms, and responsibilities in the proposed constitution.
We are also deeply disappointed that the HRC has chosen to once again make personal attacks against the character of a fellow member of the negotiating team, as they did during the final round of talks in London against the CMA and Seventh Day Adventists.
The CMA rejects allegations that our support for the narrowing of the bill of rights Section 16 (1) is based upon unjustifiable or mean-spirited sentiment. Our objection to the so called ‘free-standing clause’ reflects our understanding that a free-standing right leaves open the door for wide-ranging judicial activism in the future and also for other abuses of Cayman’s legal and financial systems.
The HRC has stated (in a document submitted at the constitution negotiations):
‘The most vulnerable groups of the Cayman Islands population, including women, the elderly, children, the mentally ill, physically and mentally disabled persons, gays and lesbians, and many others, would be deprived of valuable and necessary constitutional protection as a result of the elimination of the free-standing aspect of the right.’
The careful research and deliberations of the constitutional negotiating team from Cayman, from the government’s legal advisor Professor Jeffery Jowell, and from the team of experts from the Foreign and Commonwealth Office led by the UK Minister Gillian Merron have all made it abundantly clear that they will not accept any draft document that would unjustifiably exclude the rights of any category of persons, and with this the CMA are in full agreement.
Section 16 (2) of the new draft constitution states:
In this section, ‘discriminatory’ means affording different and unjustifiable treatment to different persons on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, age, mental or physical disability, property, birth or other status.
This section of the proposed constitution is widely based on Article 14 of the European Convention of Human Rights, and the CMA asserts that Section 16 provides even greater protection for all, in that it specifically names age and mental or physical disabilities, both of which are not mentioned in the ECHR.
The CMA does not support including sexual orientation in the constitution as we believe this would allow the specific claim to rights that other (unnamed) groups are not afforded. What the HRC has advocated, and what we have objected to, is the specific inclusion of sexual orientation in a list of protected rights, as we believe that everyone is currently covered on the basis of ‘sex’ or ‘other status’ regardless of their sexual orientation.
Mr. Jowell has stated; ‘the Cayman Islands bill of rights goes beyond the Human Rights Act in the UK, fulfils treaty obligations, which were all very carefully scrutinized, and includes additional rights that don’t appear in the HRA or in the constitutions of a number of countries. Among these is the right to lawful administration, fairness, rationality, proportionality, and so on in judicial review. It also includes children, education and environmental rights which go beyond anything in the UK.’
It should be remembered that it is the UK government that must comply with their obligation under the EU convention on Human Rights. Because of this requirement the UK would not have accepted a document that did not fully comply with its international obligations.
The CMA believes this document is acceptable because (1) it brings the UK government into compliance with their international obligation; (2) the very idea of a limitation on the right to non-discrimination contained in the current document is extracted from and compatible with Article 14 of EU Convention on human rights; (3) the UK itself has ensured its own reservation regarding the free standing right to non-discrimination, as have the majority of other countries, which are under the territorial scope of the European Convention on Human Rights. There are 88 member states and sovereign territories to which the substantive provisions of the Convention and its Protocols are ratified (and therefore in force) for the territories under the control of the members of the Council of Europe. An examination of this document clearly shows that only 16 of the 88 have fully ratified Protocol 12, which is the right of non-discrimination extended beyond the rights protected under the Convention. As we have said repeatedly, the UK itself has not ratified it.
The concerns of the CMA have always been much broader than the HRC has recognised and cannot be accurately described as ‘vague concerns’ about ‘gays and lesbians’. As it stands we believe that Section 16 preserves existing benefits for Caymanians, e.g. financial assistance from social services; affordable housing loans; reduced stamp duty rates and exemption for first-time property buyers, etc.
It is important, however, to understand that the bill of rights as a whole does not apply only to Caymanians; it applies to everyone, regardless of nationality. Programmes such as college scholarships and government guaranteed home assistance would either have to be abandoned for Caymanians or provided equally to all other residents if Section 16 (1) was made free standing.
The CMA believes that the Bill of Rights Section 1, (2) (a) of the new draft Constitution, clearly affirms the rule of law and the democratic values of human dignity, equality and freedom for all.
This assures every individual person of their human rights and includes protection for the mentally and physically disabled. The CMA would not support any effort to deny any person their rights of equality before God and the law.
We believe that what is contained in the current document is fair and reasonable and affords appropriate protection for everyone while ensuring that government can reasonably and within the available means of the country provide necessary services.
We have a UK-approved final draft constitution, and the government and opposition as the duly elected representatives of the people have made their decision to accept this final negotiated document and have rightfully put its final destiny in the hands of the people for a referendum vote on May 20.
The CMA believes that support for the new Constitution and education about what it does and does not do is the responsible course of action at this time.
Cayman Minister’s Association