Premier: COVID-19 curfews don’t breach Bill of Rights

Premier Alden McLaughlin has defended government’s coronavirus curfews, saying he is confident they do not breach human rights.

He acknowledged the measures, including the closure of public beaches, a ban on all marine activity and a 24-hour Sunday lockdown, were restrictive, but he said they were fully in line with the islands’ Constitution and Bill of Rights.

“The nature of what we are doing does infringe on what one would normally expect are people’s rights of movement and ability to enjoy amenities and so forth,” he said.

But he said the Constitution included a carve-out that created exemptions in circumstances in which public health was threatened by the potential spread of an infectious disease.

“I am entirely satisfied, as is the attorney general, that all of the measures we have taken so far are reasonable and proportionate to the risk we are seeking to address,” he added.

The premier highlighted a supportive letter he had received from the Cayman Islands Legal Practitioners Association as evidence that some of what he described as the “strident” correspondence he had received on the issue was not representative of the views of most lawyers in Cayman.

He singled out an article in the Cayman Compass, which quoted former Human Rights Commission chair James Austin-Smith, who penned a legal position paper questioning some aspects of the hard curfew.

In his paper, Austin-Smith 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.

But he wrote, “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.”

He said a ban on marine activity 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.

McLaughlin did not address those points specifically, except to say that he felt all government’s measures had been appropriate to combat the threat of COVID-19.

“We are not doing anything which we believe is in breach of what our Constitution provides for – in particular, our Bill of Rights,” he added.

Governor Martyn Roper has previously stated that he believes the hard curfew, which includes the beach ban, was carried out according to the letter of the law.

The premier made a more general criticism of the correspondence he had received from lawyers, saying they had forgotten to mention the most fundamental right – the right to life.

He said, “It seems to be inferred that the right to life is something that is limited to only healthy and young people, but the right to life is not in any way qualified.”

Highlighting Ethel Ebanks, a 102-year-old woman to whom he had wished a happy birthday in a previous televised briefing, he said her right to life was just as important as that of a “young buff attorney”.

“Because she is old and infirm does not mean that her right to expect her life to be protected is any less than yours because you are young and strong and healthy.”

It is not clear if he was referring to Austin-Smith’s commentary at this time or to the private correspondence he said he had received from numerous attorneys who oppose aspects of the regulations.

Austin-Smith’s paper did not suggest that government was not entitled to limit certain rights in extreme circumstances or that the right to life was dependent on age or health.

He did argue that some of the measures introduced, including banning marine activity and banning exercise on a Sunday, had not been shown to be proportionate or directly connected to the goal of preventing the spread of the virus and saving lives.

The Compass has also published opinions of other legal experts.

In an analysis of the COVID-19 suppression measures, also published this week, Kate McClymont, an attorney with Broadhurst LLC, said, “While the current provisions intrude upon numerous civil liberties, the Constitution also enshrines our absolute right to have our lives protected by law.

“Had the government failed to take swift action to prevent circumstances arising that indications showed could put lives at risk, it might have been said that it had failed in its duty to protect the most fundamental of all civil liberties, namely, the right to life.”

However, she did go on to say that any government actions that trespass on civil liberties should be transparent and, therefore, the notices issued by the police commissioner establishing the hard curfew, beach and marine ban, should be made publicly available. 

She added that government should expect scrutiny from the press and other institutions at a time when its powers had expanded.

“While perhaps inconvenient or uncomfortable for government at times, this important role of the press must be respected,” she said. 

“There can be little doubt that exceptional situations require exceptional measures; however, civil liberties are critical to a functioning democracy and should be monitored and protected with heightened vigour during periods when those exceptional measures are used,” she said.

“Let us support those institutions now, journalists included, and continue to hold government accountable for its actions so that democratic principles are not left damaged, or civil liberties reduced, in the long term.”

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  1. What “we believe’ is not enough. It sounds like “Take my word for it”.

    It is not enough for any government to merely assert they are doing what is necessary because they have statutes (and sometimes interpretations of constitutional provisions) that allow for human rights derogations or limitations in times of public health and/or national emergency.

    They must provide an adequate and transparent justification for the measures being taken to contain the virus and protect public health. Such measures under international law as well as constitutional law in democratic states, have to be necessary, proportionate, and reasonably related to legitimate public ends.

    From the Journal of Civil Law Studies:
    The importance of proportionality is so big that it has been said to be “the most important general principle of the communitarian law.”

    The principle of proportionality prescribes that all statutes that
    affect human rights should be proportionate or reasonable. The
    analysis of proportionality is made up of three sub-principles:
    adequacy, necessity, and proportionality stricto sensu (in a narrow or strict sense).

    The first sub-principle is that of adequacy, which establishes
    that the statute which affects a human right must be suitable to
    achieve the purpose that was sought by the lawmaker. That is to
    say, once the interpreter has defined the end that the legislator
    aimed for and the means that the legislator has designed to obtain
    such end, then the interpreter must verify if the means are capable
    of achieving such end.

    Through the second sub-principle, the interpreter evaluates if
    the lawmaker has chosen, among the means capable of obtaining
    the desired end, the one which is the least restrictive of the human rights. In other words, the norm will only pass the test of necessity
    if it is the one among those similar in efficacy which is the least
    restrictive of the rights.

    Once it has been established that the norm has complied with
    the first and the second sub-principles, the interpreter should
    determine whether it is reasonable stricto sensu, or not.
    The doctrine and the jurisprudence have defined this sub-principle as an examination of the balance between the advantages and
    disadvantages brought about by the law.

    Unless adequate and transparent analysis of the measures being taken has been provided, members of public are left to believe what CIG tells is true, without making sure that it really is true.

    Human rights are universal, interdependent, and mutually reinforcing. National response starts with leaving no one behind.

    People with disabilities remain a commonly “invisible”, left behind group.
    Article 11 of the UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by 46 of the 47 member states of the Council of Europe, provides that states shall take “all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters”.

    In the beginning, CIG has rightly imposed social distancing measures to reduce the spread of the virus, but they have not been attentive to the specific circumstances and needs of persons with disabilities.
    People with disabilities such as cancer, diabetes, CVD, neurological diseases, injuries and many others not always able to shop when they’re “ordered” or stand in lines for example.

    Many people who have chronic conditions need frequent and regular medical support, yet, I am not aware of any special provisions for people with disabilities. Therefore, was “the blanket lockdown” the least restrictive of the human rights among all the adequate options that could be applied?

  2. Beach, pools and marine activity ban.

    What purpose, or the end, GIG tried to achieve with such bans; were the designed means capable achieving such end, was examination of the balance between the advantages and disadvantages brought about by these bans made; were these bans the least restrictive of the human rights among all the adequate options that could be applied?

    Perhaps CHRC could step in and conduct such examination/analysis and interpretation, instead of issuing a generic “we support CIG” statement. 2 current members of CHRC are well versed in Law.