The Cayman Islands Human Rights Committee has opined that courts need to have the ability to overrule a law when an individual’s rights have been violated.
The HRC stated it is crucial those judges should maintain that power ultimately over the legislature.
The People’s Progressive Movement government prefers to let elected lawmakers have the final say on whether legislation that violates the country’s constitution should be changed.
An HRC report on the proposed constitutional bill of rights released Monday stated that both sides of the issue have merit.
‘(The government’s) method of enforcement has the advantage of leaving the matter with the legislature, which is popularly elected by the people, rather than judges who are appointed,’ the report read.
However, the committee acknowledged that problems can arise by allowing the majority of a country’s population, represented by the legislature, to decide what rights to allow the minority members of society.
‘Sometimes majorities can opt to restrict the rights of minorities, particularly where there is political capital to be earned, making enforcement of our rights too dependent upon political will,’ according to the HRC report.
Concerns about protecting minority rights were recently echoed by Education Minister Alden McLaughlin during a public discussion on religious freedoms under Cayman’s proposed bill of rights.
‘People should have the right to publicly proclaim (a religion) regardless of how many other people believe something else,’ he said. ‘Because the fact that those who practice the Christian faith and believe in it now are in the majority is no guarantee…that’s going to be the case 20 or 25 years from now.
‘Our children or grandchildren may find themselves in a situation where they are trying to practice their Christian heritage and faith, and they are in the minority.’ (See Caymanian Compass, 27 February)
The government’s plan, which would make politicians the supreme decision-makers when the courts determine a human rights violation has occurred, mirrors the legal situation in the United Kingdom.
In the UK, courts make a declaration of incompatibility and leave it to parliament to amend the offending law.
However, the HRC argues that Cayman Islands law is significantly different than the UK arrangement because the UK does not have a written constitution. Cayman does.
‘Therefore (Cayman) has the constitutional structure to allow its courts to protect our rights directly by striking down any law, which infringes the human rights contained in the constitution,’ the HRC report reads.
There have been fierce arguments on both sides as to whether a proposed bill of rights should be placed in Cayman’s constitution, or should be enacted as a standard law. Cayman does not have any specific definition of human rights in either its constitution or laws.
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