Human rights cases in court

Bill of Rights, Freedoms and Responsibilities came into effect on 6 November

Between 6 November, when Cayman’s Bill of Rights came into effect, and the end of the year, two cases were filed with the Grand Court Civil Registry on the basis of section 13 of the 2009 Constitution. 

The first 28 sections of the Constitution comprise the Bill of Rights, Freedoms and Responsibilities. Section 13 deals with freedom of movement and both cases ask the court to review a decision involving an immigration matter. 

On 23 November, Attorney Dennis Brady applied for permission to apply for a judicial review of a decision by an immigration officer refusing a request for the retaking of the mandatory English test. 

On 6 December, Attorney Clyde Allen applied for permission to apply for a judicial review of a decision by the Immigration Appeals Tribunal. Mr. Allen’s client had applied for permanent residency and was turned down on the basis that he needed 100 points to qualify, but had only 91. 

Documents filed with the courts office indicate that the client considered the method of awarding points to be wholly arbitrary and without transparency; without understanding how such points are awarded, he was limited in his ability to challenge any such award. 

It was not known at press time when these applications would be dealt with. There were at least two other immigration matters in which judicial review was applied for, but they did not mention human rights; the grounds on which the application was made was the more traditional breach of natural justice. 

The Cayman Islands Constitution Order 2009 is the first such document to set out a Bill of Rights for this territory. It lists these rights under 19 different headings and expresses them either as a positive statement, such as “Life – (1) Everyone’s right to life shall be protected by law” or as a statement of protection against something, such as “Torture and inhuman treatment – No person shall be subjected to torture or inhuman or degrading treatment of punishment.” 

Other headings are: Slavery or forced or compulsory labour; Personal liberty; Treatment of prisoners; Fair trial; No punishment without law; Private and family life; Conscience and religion; Expression; Assembly and association; Movement; Marriage; Property; Non-discrimination; Protection of children; Protection of the environment; Lawful administration action; Education. 

The Bill of Rights specifically states that it confirms or creates certain responsibilities of the government and corresponding rights of individuals against the government. It does not affect, directly or indirectly, rights against anyone other than the government, except as expressly stated. 

When the Bill of Rights came into effect, Attorney General Samuel Bulgin emphasised once again its full title, as pertaining to rights, freedoms and responsibilities. He said it was important to keep in kind that the Bill of Rights does have certain important restrictions, as would be expected in any democratic society where rights carry with them duties and responsibilities.  

“By way of examples, freedom of expression does not allow persons the right to wilfully make defamatory statements about others,” he pointed out. “Freedom of movement does not permit the unlawful trespassing on another’s premises, while freedom of assembly does not give the right to unlawfully block a public thoroughfare to the inconvenience of others.  

“The limitations are necessary for balancing the interests of various rights against the interest of public order, safety, morality etc. The question will be whether restrictions on the rights and freedoms are proportionate and/or reasonably justifiable in a democratic society,” Mr. Bulgin said. 

Rights are not absolute. One example is personal liberty: the Bill of Rights specifically states that the right to liberty does not extend to a person being sentenced for a criminal conviction. In the same way, freedom of movement for non-Caymanians is impacted by the Immigration Law. 

The 2009 constitution also establishes a Human Rights Commission, whose primary responsibility is promoting understanding and observance of human rights in Cayman. It has the power to receive and investigate complaints of alleged breaches of any right or freedom contained in the Bill of Rights. 

As of November 2012, the commission was comprised of Richard Coles, chairman; Nicholas Sykes, Cathy Frazier, Alistair Walters and Sara Collins as members. The commission has an office in Cayman Corporate Centre on Hospital Road; manager is Deborah Bodden. The commission’s website is www.humanrightscommission.ky.  

On 7 December 2012, the Cayman Islands Government advertised in the Caymanian Compass, inviting applications for the post of Crown Counsel (Civil) to provide legal support to the Solicitor General’s Office in human rights matters. One of his or her duties will be “General conduct of litigation in which the violation or threatened violation of the Bill of Rights is alleged”. Deadline for receipt of applications is 31 January. The advertisement did not indicate a date on which an appointment would be announced. 

It is understood that at least two Crown Counsel in the Office of the Director of Public Prosecutions have experience with human rights issues, but this was not confirmed by press time. 

The Bill of Rights may be read in its entirety as Part 1 of the Constitution, which is available for reference at public libraries. It may also be viewed on the Internet at www.knowyourconstitution.ky. Copies of the Constitution may be purchased at the Legislative Assembly Building for $20. 

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1 COMMENT

  1. Well not surprised that first cases based on Human Rights are for immigration.

    Our CIG can’t use discretion where necessary for native Caymanians but if they do so for work permit holders these aggressive persons appeal at every level, whether they deserve it or not.

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