Appeals court will sort out constitutional matters

Cayman Islands lawmakers and its attorney general won’t be left to interpret questions of constitutional law all on their own.  

According to a bill made public last week, the territory’s top lawyer may request – with the permission of Cabinet members – the Cayman Islands Court of Appeal to assist with “any question of law or fact” concerning the 2009 Constitution Order, the constitutionality or interpretation of any law or “any other matter that the attorney general thinks fit”.  

The court’s job in such cases, according to the Attorney General’s Reference of Questions Bill, 2012, will be to hear and consider each question, provide an answer and to certify its opinion to the attorney general on each question.  

“The opinion shall be pronounced in like manner as in the case of a judgment on appeal to the court,” the bill states.  

As is the case in most 
Commonwealth jurisdictions, parliament is the supreme law of the land. So any ruling of a court as to the constitutionality of a law is left to the Cayman Islands Legislative Assembly to ultimately address.  

In cases where constitutional questions arise and the Court of Appeal must hear arguments relating to those matters, the attorney general and/or their designee may appear along with “any person interested or by counsel acting on behalf of that person”.  

The court can also request any counsel to argue a case on behalf of anyone effected by the matter of constitutional dispute and when that is requested, “reasonable expenses” for that representation will come out of the government’s general revenue, according to the bill.  

Preparations for the upcoming implementation of Cayman’s first Bill of Rights have been proceeding for some months within the civil service. Government lawyers have been reviewing laws to determine their compliance with the Constitution Order (2009) and training in how to deal with civil rights issues is being provided to public servants.  

The majority of provisions within the Bill of Rights come into effect in November of this year, with the exception of those matters generally pertaining to the rights and treatment of prisoners which will come into effect in November 2013.  

 

Bill of Rights 

The first Bill of Rights in Cayman’s history was the most contentious issue in the constitutional reform debate of 2007-2009 in the Cayman Islands. 

The Constitution identifies 19 separate individual human rights that will be observed. These include the right to life, personal liberty, the right not to be tortured or enslaved, the right to a fair trial, of conscience and religion, free assembly, movement, the right of men and women to marry, the right to property and the right not to be discriminated against. 

All rights only apply legally between the individual and government. Civil or human rights defined in the Constitution do not apply between a person and their employer, for instance, or between a person and their church. 

Few rights are absolute. Several contain qualifications or limits, and other rights are merely “aspiration rights” that have no real legal effect. The right to education is one of those. 

The right to be protected from discrimination would only prevent discriminatory acts if those acts could not be justified in some way. Also, that right only protects against abuses of human rights that are defined in the Constitution. The non-discrimination section of the proposal allows government to discriminate in the levying of fees, and in the granting of employment, for example. 

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1 COMMENT

  1. The Cayman Islands has no alternative to this approach in dealing with the implementation of this Bill of Rights, which is what this basically is about.

    With the bunch of morons called legislators, in the state of near-anarchy and confusion that they are presently in, who could count on their mental and intellectual capabilities to determine constitutional matters when they cannot focus on even the most mundane of Cayman’s everyday problems ?

    They, collectively as legislators for Cayman but more as PPM and UDP leadership, along with their church partners, the Cayman Ministers Association (CMA) for the UDP and 7th Day Adventist for the PPM, conspired to have Cayman’s Constitution having the most watered-down Bill of Rights put into any BTO constitution…if it had been up to them, there would have been no BoR at all.

    Now the chickens have come home to roost, with the reality of the situation at hand.

    The CI Govt. will have its hands full just to change the culture of its employees from a bullying one to one that demands more respect for the public, just to start with…and…

    With only a vertical discrimminatory clause, with no redress for horizontal, civil discrimminatory issues, meaning discrimmination between civilians, half the human rights problems remain onsolvable by this BoR.

    If Cayman had accepted the ECHR statutes wholesale, the establishment of the Human Rights Commission would have had an equality aspect to it, which addresses civil discrimmination eg, between employer and employee or landlord and tenant; as it stands now, this issue remains unaddressed by this BoR.

    But, as they say, ‘half-a loaf is better than no bread’ so half a BoR is better than none at all, guess.

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