The former chair of Cayman’s Human Rights Commission has questioned the legality of some of the restrictions currently in place to prevent the spread of the coronavirus.
James Austin-Smith, counsel at Campbells law firm, highlights the 24-hour Sunday lockdown and the marine-activity ban as two significant aspects of the curfew measures that could be open to legal challenge.
Austin-Smith, in a paper shared with the Cayman Compass and printed in full here, also points out that written justification of the legal basis for these measures should be made available to everyone in the Cayman Islands.
He praised the police and government for their “hard work and professionalism” and emphasised that his legal opinion was not intended to detract from the fact that the curfews are the law of the land and must be complied with.
He wrote, “No one doubts the good intentions of the authorities; they are deserving not only of our gratitude but also our commendation.
“However, this does not absolve the restrictions they have imposed from scrutiny or detract from the fact that serious consideration must now be given to whether the Sunday lockdown and beach/marine ban can be justified under the Police Law, the Constitution of the Cayman Islands and the European Convention on Human Rights.”
Austin-Smith agreed with a separate legal analysis, quoted in a Cayman Compass feature story, that the Constitution does create exemptions allowing restrictions on freedom of movement, including to help prevent the spread of an infectious disease. However, he argues that not all the measures imposed by Cayman’s leaders have been shown to be proportionate or directly connected to that goal.
He said a ban on marine activity, for example, had no obvious link to suppression of COVID-19 and that the “preservation of police resources” was unlikely, in his opinion, to stand up to legal scrutiny as an alternate justification.
He added that the public is entitled to see the written details and justifications for all the measures of the hard curfew.
While the soft curfew conditions, imposed under regulations to the Public Health Law, have been published, the hard curfew details, imposed under the Police Law, have not.
In his paper, Austin-Smith suggests the following written documents should be made available:
- Copies of the written permissions from the governor to the commissioner of police to grant a curfew under s.49 of the Police Law.
- Explicit identification of the legal basis on which it is contended that a curfew can be imposed for more than 48 hours in the face of the restriction in s.49(6) of the Police Law
- Detailed reasons why the 24-hour lockdown and the ban on beach and marine activity remain necessary, how they achieve their objective of protecting public health, and why they are the least restrictive means by which that aim can be achieved.
He concludes his paper, “It is uncontroversial that the prevention of the spread of COVID-19 is a legitimate aim; whether the interferences with all the rights outlined above by the imposition of the hard curfew can be properly linked to that aim and are proportionate are more difficult questions.”