Analysis and Review: 2009 Draft Constitution

Published 15th May 2009, 2:06pm

As part of the HRC’s ongoing obligation to advise the people of the Cayman Islands in relation to our human rights obligations, the HRC makes the following comments on the draft Constitution, which is being put forward for approval by referendum on 20 May 2009.

Positive proposals for human rights under the draft Constitution:

• Introduction of constitutional human rights and responsibilities: The existing 1972 Constitution does not include any human rights at all. The new draft Constitution includes a Bill of Rights for all people in the Cayman Islands, which protects certain basic human rights, such as the right to life, freedom of religion and conscience, privacy.

 

• Enshrined Bill of Rights: By having the Bill of Rights directly included in the draft Constitution, it gives the best level of protection for human rights to our people (rather than having the Bill of Rights as an ordinary law which can be more easily changed).

 

• Scope of human rights: The HRC is pleased to have been able to successfully negotiate for the inclusion of definitive rights for the protection of children (section 17) and an aspirational right of environment (section 18) in the Bill of Rights.

 

• Children’s rights: The draft Bill of Rights now recognizes the right of all children in the Cayman Islands to important matters necessary for their healthy development, including rights to basic nutrition and health care, to be protected from abuse and neglect and the right not to be detained except as a matter of last resort. This is particularly relevant to Cayman, which currently incarcerates minors in adult prisons, in breach of various international human rights treaties extended to Cayman.

 

• Environmental rights: The draft Bill of Rights also importantly establishes an aspirational right to protection of the environment. Our Islands’ natural resources, wildlife and sea biodiversity are critical to our heritage as well as our economy. Although an aspirational right does not create a binding obligation, the inclusion of such a right of environment in the Bill of Rights signifies a pledge by government to always consider the environmental impact of all government decisions or actions.

 

• Human Rights Commission established: The draft Constitution also usefully establishes several institutions which will serve to promote democracy, including a Human Rights Commission (section 116). The new Human Rights Commission will be charged with “promoting understanding and observance of human rights in the Cayman Islands.” In this regard, the new Commission will have a similar mandate and role as the existing HRC, which it will replace. The Commission will receive and investigate complaints and human rights issues and may issue reports but will not have any quasi-judicial powers of enforcement. The Commission will also work to educate the public on human rights.

Areas where the protection of human rights could have been improved under the draft Constitution:

• Language and drafting: The first and perhaps most important difficulty with the draft Constitution is the overly complicated language and the lawyer-like way in which it says everything. It is difficult for all of us to understand exactly what the Bill of Rights covers, what it leaves out and what our rights actually are.

 

• Delay in relation to youth offenders: The draft Constitution regrettably, will still allow ongoing human rights abuses of children to continue indefinitely, in particular those in conflict with the law.

 

• The HRC is concerned about the agreement to delay the implementation of section 6(3) for four years after the Constitution comes into effect. This section requires the Government to separate children in custody from adult prisoners and to treat the juveniles in a manner appropriate to their age and legal status. The current practice in Cayman of incarcerating youth offenders (including girls as young as 13) at adult prisons, violates Cayman’s international human rights obligations.

 

• The right to silence reduced: The Bill of Rights has removed a person’s right to be told of their right to remain silent on arrest under section 5(3). This is a significant inroad to the presumption of innocence after a person has been arrested and will allow the courts to assume that you are guilty if you remain silent after being arrested.

  Consequently, the draft Constitution no longer includes a right for a person to be informed of their right to silent when arrested. There is now greater scope for abuse by police in seeking improper confessions. In most instances, the accused will not have legal representation during questioning - but by remaining silent, the court can assume they are guilty of a crime in certain circumstances.

 

• Right of non-discrimination limited: Section 16(1) of draft Constitution proposes only a limited right of non-discrimination for everyone in Cayman. The HRC has previously outlined its grave concerns in relation to the approach taken in respect of section 16(1) of the draft Constitution. The draft provides that everyone should have the right not be discriminated against by the Government in a limited way i.e. the Bill of Rights will be applied without discrimination. However, it was not agreed that the right not to be discriminated against would apply to any other area where behaviour of the Government could affect citizens and residents. The reason put forward for refusing to agree this was that, because it was felt that some groups should not have this protection, it could not therefore be offered to anyone at all.

  This leaves no constitutional remedy for unjustifiable discrimination by the Government against anyone in a number of important areas of everyday life. Accordingly, the Government could discriminate against anyone in any matter not listed in the Bill of Rights, including:

  • Healthcare;
  • Access to public spaces for disabled persons;
  • Employment with government;
  • Government housing;
  • And many others.

 

• Parental rights to children limited to spouses: While the draft Constitution sets out the parental rights to married couples under section 14(4), there is no mention of the rights of unmarried parents. Unmarried parents’ rights will continue to be set out in local legislation and/or the common law, both of which are less than satisfactory for various reasons.

 

• Aspirational Rights: Throughout the constitutional negotiations, the HRC advocated for the inclusion of a number of important aspirational social rights, which the country will strive to give all of its people. Although aspirational rights of education and environment were included, the draft Constitution unfortunately does not include aspirational rights of healthcare or housing, which are particularly relevant to Cayman.

This statement was issued on behalf of the Human Rights Committee. Although appointed by Cabinet, we function as an independent body. Our terms of reference and more information on the work of the HRC can be viewed at www.humanrights.ky.

For further information contact: Human Rights Committee