The advent of the Cayman Islands first constitutional Bill of Rights will place more importance than ever on the local court system to independently and fairly interpret and apply the laws.
The Bill of Rights – with the exception of the sections dealing with the proper separation of prisoners – came into effect Tuesday.
“This means legal action brought by persons aggrieved by the violation of their rights and freedoms can now be dealt with in the local courts, which will be able to grant certain remedies in appropriate cases,” Attorney General Sam Bulgin wrote in a prepared statement this week.
Although there is a provision that allows human rights claims to be mediated by the Human Rights Commission, Mr. Bulgin said the court will be called upon to decide various human rights matters from time to time.
The provisions in the Bill of Rights only apply to certain rights and their application between residents and the government. The bill does not address rights violations between private individuals or between individuals and their employers.
In many cases, the Bill of Rights will require what Mr. Bulgin refers to as “a recalibration” for everyone, but more so for public officials.
“There will be limits to the scope and legitimacy of executive and legislative decision-making, and in this regard, we should bear in mind that executive expediency and the rule of law may not always be allies,” Mr. Bulgin said.
In considering human rights cases where violations are alleged to have occurred, the courts will have to determine whether government’s actions were “proportionate and/or reasonably justifiable in a democratic society”. The courts will also weigh whether a government action restricting rights was “sufficiently important to justify limiting a particular right or freedom”. Simply put, the means must match the objective when it comes to government action against residents.
Mr. Bulgin said most rights and freedoms contained in the bill are not absolute and residents should remember the Bill of Rights is also the bill of responsibilities.
“Freedom of expression does not allow persons the right to wilfully make defamatory statements about others,” Mr. Bulgin said. “Freedom of movement does not permit the unlawful trespassing on another’s premises; freedom of assembly does not give the right to unlawfully block a public thoroughfare to the inconvenience of others.”
What rights do I have?
The Bill of Rights sets out 19 separate rights that residents of the territory have in dealings with their government.
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 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.
It is Section 19 of the bill, dealing with lawful administrative action of government, where local officials expect to see the most complaints.
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.
“It may be seen as daunting, but we should all show a willingness to embrace [human rights],” Mr. Bulgin said. “It is, ultimately, about a just and fair society for all.”