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.”