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HRC Opening Statements

Published 19th January 2009, 12:04pm

Second Round of Constitutional Talks 13–17 January 2009

Printable Version

Introduction

The HRC is the national institution vested with competence to promote and protect human rights in the Cayman Islands. The HRC is a non–aligned body, committed to objectivity and impartiality in its work.

The HRC remains grateful for the opportunity to participate in these talks, particularly the proposals relating to the bill of rights and to the establishment of a human rights commission.

The HRC is encouraged that the delegation was able to reach consensus on a number of points during the first round of constitutional talks: such as the inclusion and enshrinement of the bill of rights in the proposed new constitution and the inclusion of rights to education and environment.

In this second round, the HRC hopes the momentum of constructive and mature discussion on the remaining issues in the bill of rights continues – as we all work towards one common goal of positive constitutional change for our Islands and our people, through improved human rights.

In that regard, there remain a number of issues on which the HRC’s views have not yet been taken on board, which we look forward to fully addressing in this second round of constitutional talks.

Outstanding issues for discussion

The HRC’s objective in these talks remains: to seek the best protection of rights for the people of the Cayman Islands. Among the remaining issues to be discussed at this stage:

  1. The drafting and language of the proposed bill of rights;

  2. the inclusion of aspirational rights of healthcare and housing in the bill of rights; and

  3. the wording of the right of non–discrimination in the bill of rights.

Drafting of the bill of rights

  1. We acknowledge and applaud the hard work of all involved in producing the working draft, however the HRC remains firmly of the view that the draft constitution and the bill of rights must be drafted in clear, simple and positive language. In order for the bill of rights to have the most value to our people, it must be understandable to all sectors of the populace.

  2. The HRC believes that the importance of having a bill of rights which can be understood by all sectors of Cayman’s community, including our children, cannot be overemphasized.

  3. For this reason, the HRC remains of the view that the bill of rights can be better balanced in its drafting and should set out the rights in a positive way (rather than a negative concept). Take, for instance, the right of non–discrimination; in the current working draft bill of rights, this right is phrased as being subject to a number of exceptions:

    • " Non–discrimination

    • 16.–(1) Subject to subsections (3), (4), (5) and (6), government shall not treat any person in a discriminatory manner. "

  4. So, a lay person will have to cross–reference four different subsections in order to try to understand what right he or she actually has. This type of drafting is not conducive to ensuring all members of the public clearly understand their rights.

  5. The format of the current working draft bill of rights is less manageable than it can be – the current working draft bill of rights sets out different limitations and qualifications and/or exceptions to each and every right within the same section – which is more difficult to understand and is far more cumbersome.

  6. Instead, the HRC would recommend that the bill of rights set out the rights in positive, simple language and then concisely set out all of the limitations on the preceding rights, together one separate section, such as:

      " Limitation on rights

    1. The rights and freedoms as set out in subparagraph (3) below may be limited by measures that are objectively justified as necessary in an open and democratic society based on human dignity, equality and freedom, such limitations must:

      1. be in accordance with the law;

      2. pursue a legitimate aim;

      3. be proportionate to the legitimate aim taking into account, among other things:

        1. the importance of the right at stake;

        2. any less restrictive alternative measure that could have been taken; and

      4. not impair the very essence of the right.

    2. A legitimate aim includes measures taken for the purposes of securing national security, the protection of public safety, public health and morals and the rights of others.

    3. The rights referred to in subparagraph (1) are those set out in sections: 2, 8, 9(1), 10(1), 11(1), 12, 13(1) and (2), 14(1), 15(1), 17(1), 18(1).

    4. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights."

  7. The HRC believes this alternative approach will enable all of the rights to be expressed in clearer, simpler language. A few examples of suggested, improved language are:

    Right to a fair trial

    1. Everybody has the right to a fair and public hearing in the determination of his legal rights and obligations by an independent and impartial tribunal within a reasonable time.

    2. Everyone charged with a criminal offence has the following minimum rights:

      1. to be presumed innocent until proved guilty according to law.

      2. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

      3. to have adequate time and the facilities for the preparation of his defence;

      4. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

      5. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

      6. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

    3. No person shall be tried for an offence in respect of which he has previously been acquitted.

      In the current working draft bill of rights, the section on right to a fair trial runs over three pages, in more cumbersome language which sets out the right, along with a myriad of limitations, qualifications and cross–referencing in the same section.

  8. As a further example, the right to personal liberty is also better articulated in the following way:

    Right to Liberty

    1. Everybody has the right to liberty of the person.

    2. The right to liberty does not extend to the following measures taken in accordance

      1. the arrest or detention of a person for non‐compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

      2. the arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

      3. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

      4. the detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

      5. the arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

    3. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.

    4. Everyone arrested or detained in accordance with the provisions of subsection 2(c) shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

    5. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

    6. Everyone who has been arrested or deprived of his liberty in contravention of the provisions of this article shall have an enforceable right to compensation.

      7. In the current working document, this same right runs for nearly three pages of the Constitution alone.

  9. Overall, it appears that the current working draft bill of rights is based on the ECHR and includes ‘carve–outs’ or exceptions from the case law. However, the alternative and preferable approach, in the HRC’s view, is to draft the bill of rights with the underlying legal principles in mind, while also taking proper account of Cayman’s history and culture. This will enable the bill of rights to still be ECHR compliant, in a Cayman–context and be more understandable by the public, and the HRC recommends the following language:

    Non–discrimination

    1. Everybody has a right not to be discriminated against.

    2. A person is discriminated against if they are treated differently to another person or persons in an analogous situation, whether directly or indirectly, or suffer any detriment, on the grounds of their racial or ethnic origin, colour, creed, nationality or place of origin, sex, sexual orientation, pregnancy, mental or physical disability, age or other status.

    3. Nothing in subsection (1) requires the legal recognition of same‐sex marriages or gender‐reassignment, such matters being in the discretion of Parliament.

  10. For the sake of clarity and understanding by the wider Cayman community, the HRC fully endorses the alternative draft bill of rights previously circulated to the delegation during this process.

    11. Use of undefined concepts

  11. The introduction and use of vague, undefined concepts in the current working draft is also problematic. Concepts such as "values", "morals" and "social justice" will be difficult for the courts to interpret and creates greater scope for legal challenge in future.

    12. Inclusion of aspirational rights to healthcare and housing

  12. The HRC is pleased to see the inclusion of environmental rights, as well as a right to education into the current working draft bill of rights. However, the HRC believes the inclusion of other aspirational social rights, such as to a right to healthcare and to housing – are also rights which the Caymanian people aspire to give to all of its people.

    13. Conclusions

  13. The HRC endorses drafting of a kind reflected in an alternative draft bill of rights which was circulated in the course of this process. We believe that document offers a number of important advantages to the current working draft as it:

    • iv. is a more balanced document;

    • v. sets out the rights in positive and clearer language;

    • vi. expresses the rights without qualifications or exemptions and gives the limitations as one simple section (the current working draft is more cumbersome – by setting out the right with a myriad of limitations, qualifications and cross–references in the same section);

    • vii. is more easily accessible and understood by all persons;

    • viii. is less open to legal challenge as it avoids overuse of vague concepts such as "social justice"; and

    • ix. is drafted with the underlying legal principles in mind, while also taking proper account of Cayman’s history and culture.

The HRC remains on hand to expand further on its position in relation to each of the foregoing points in the coming days. As before, the HRC does not take any formal position in relation to any of the constitutional modernisation proposals which are outside its mandate or purview.

APPENDIX

For further information contact: Human Rights Committee

Opening Statement of the Human Rights Committee
Second Round of Constitutional Talks 13–17 January 2009