The Cayman Islands is about to enter uncharted waters. In November 2012, the country’s long-awaited Bill of Rights attached to the 2009 Constitution Order will, with the exception of a few provisions, come into effect. What will it mean for Cayman’s future?
To put it bluntly, the implementation of human rights in the Cayman Islands will require two things: money and time.
The money will be spent for a number of additional projects, which the government has estimated to cost some $37 million by the time compliance with all bill of rights requirements is achieved.
The time will be spent in training government workers – more than 6,000 including statutory authorities, government-owned companies and government-appointed board members – who have to be brought up to speed on their requirements for human rights policies and procedures.
Time will also be spent in court when human rights claims are brought against the government for the first time in local courtrooms. “In short, there are significant challenges ahead for the public service,” then-Deputy Governor Donovan Ebanks told the Legislative Assembly in 2010.
What is the Bill of Rights?
The official title within the Constitution Order  is the Bill of Rights, Freedoms and Responsibilities; it is the first such declaration of rights ever contained within a Cayman Islands governing document.
The bill sets out 19 separate rights that residents of the country have in dealings with their government. The application of those rights is “vertical”, in other words, between the individual or company and the state. The bill of rights has no application between an individual and another individual, or a person and their employer.
Rights include the right to life, the right to be protected against torture and inhumane treatment, the right to be protected against slavery or forced or compulsory labour, the right to personal liberty, the right to treatment of prisoners [parts of which do not come into effect until November 2013], the rights to a fair trial and no punishment without law, the right to private and family life, the right to conscience and religion, the right to expression, the right to assembly and association, the right to movement, the right to marriage, the right to property, the right to non-discrimination, the protection of children, protection of the environment, the right to lawful administrative action and the right to education.
Some rights contained within the bill are absolutely protected, such as the right to life or the rights against torture and slavery. Others are qualified rights; for instance, the right to marriage does not include the right to marry members of the same sex in the Cayman Islands. Other rights, such as the right to education are “aspiration” rights, and have little legal effect.
Businesses should pay attention
It may not be immediately apparent why local businesses should be concerned with the bill of rights, since it only applies to how government acts.
However, section 19 of the bill states that all actions of public officials must be “lawful, rational, proportionate and procedurally fair”.
“Every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act,” Section 19 of the Bill of Rights goes on to state.
Public officials, says Peter Gough, strategic advisory to the deputy governor, includes government-appointed board members. That means immigration or businesses licensing boards.
“If we have a process, which requires a certain amount of information for a board or an authority make a decision, they have to make a decision on those issues,” Gough says.
“If they then make a decision on issues that have not been provided to those boards…then that’s not procedurally fair. So it’s going to, I believe, make the decision-making of the boards and tribunals much more open because you can ask for a written reason. It shines a spotlight on the decision of these boards.”
In general, if public officials realise they have to explain themselves, Gough says, it could lead to better quality service. ”If we have proper policies…then that should only impact positively on the clients of government,” he says.
Cayman’s immigration boards have operated for years under guidelines that have never been made available for public consumption. Deputy Governor Franz Manderson has previously said that would change and that board rules would be posted on the government’s website.
One of the many immigration rules, made public during a 2010 meeting of the Legislative Assembly was that only Caymanians could employ Jamaican nationals as domestic helpers. The policy was not known until it was discussed in the Assembly.
The Liquor Licensing Board of Grand Cayman has a detailed set of rules for hearing applications which has also never been made public.
Although it doesn’t expressly require it, the country’s new human rights regime will encourage all government boards to make public their policies and operating procedures, says Deborah Bodden of the government’s Commissions Secretariat. “One of the things that we’ve said to them is that written policies and procedures should be available,” she says.
“There is no reason, unless they can be exempted under FOI, that the general public cannot understand what they need to do.”
Costs will increase
According to estimates done in 2010, the Cayman Islands government will have to spend roughly $12 million on construction projects, plus another $1 million each year to comply with human rights requirements under the 2009 Constitution Order.
Most of the large expense items are related to the prison system. Cayman’s Bill of Rights requires certain provisions for the treatment of prisoners and the handling of juvenile prisoners to be established by November 2013.
The cost of building a separate prison unit for remand prisoners – those who have not been convicted of any crime – has been estimated at $5.5 million for a 50-person facility. The cost of a youth offender facility has been estimated at $6.3 million. The costs will be spread out over the three years’ budgets. The costs do not include staffing at those new facilities.
Also, Bodden says it’s expected that legal challenges involving alleged human rights violations will be taken to the local courts with greater frequency; now that the advent of the bill of rights allows those issues to be heard locally.
“Private businesses will be impacted the same way any private citizen will be, and that is that they are given the ability to challenge government decisions and acts in our local courts,” Bodden says.
“It could have an impact on legal aid,” Bodden says. “Will [government] be giving funding for cases for human rights violations? If so, how much have they [increased] the budget?”
Bodden and Gough have, mostly on their own, been responsible for training government workers and board members in the legal niceties of the upcoming bill of rights requirements. They’ve gotten through about 4,000 people with roughly 2,000 or so to go.
Some workers “on the sharp end of human rights requirements” as Gough puts it, police officers, government lawyers and the like have been given more in-depth training with experts brought into the country by the Cayman Islands Government.
Gough says he realises there have been horror stories about the application of human rights in other jurisdictions, but largely, he says government workers have been receptive to the idea. “It should improve customer service, rather than increase bureaucracy,” he says.
The human rights training process has also identified areas where the Cayman Islands public sector can “up its game”, so to speak. “It is bringing attention to areas where there could be business processes that are not up to par,” Bodden says.