Published On: Wed, Nov 7th, 2012

Caymanians Now Have Rights

GEORGE TOWN, Grand Cayman (CNS) – Finally, three years after the Cayman Islands 2009 Constitution was implemented, local people and residents at last have at least some human rights enshrined in local law.

Tuesday is the official commencement of the Bill of Rights, which among many other things protects people’s right to movement, thought, expression, assembly and equality before the law, as well as protections for the environment, one of many areas that could act as a barrier to government complying with the Bill. From today onwards, any Caymanian, and in some cases ex-pat, who believes their rights are being trampled upon can seek redress through the local courts.

Government will be officially commemorating the day at the National Gallery this evening, and Richard Coles, the chair of the Human Rights Commission, which so far has remained rather low key, said there were challenges ahead but the commission would continue to “promote, protect, and preserve human rights for the people of the Cayman Islands.”

Meanwhile, Cayman Islands Governor Duncan Taylor said that ensuring that people’s rights are upheld would be a job for public officials who have a duty under the Constitution to ensure that all acts they carry out and decisions they make are “lawful, rational, proportionate and procedurally fair manner“, as set out in the Bill, which is the first schedule of the constitution.

“The 2009 Constitution gives you yet greater protection for your rights and freedoms and greater authority to defend them,” Taylor told the people of Cayman Tuesday. “Adherence to the Bill of Rights, Freedoms and Responsibilities will help us to become a stronger society where all being are equally valued, can participate fully and are treated with fairness, dignity and respect.”

Although a step forward and an improvement on the previous circumstances where Caymanians had to seek redress in the European Court of Human Rights, the enshrinement of a local Bill of Rights has still proved to be a controversial. For some, the bill has gone too far, whereas others believe it has not gone anywhere near far enough as a result of pressures from the church.

During the negotiations over the 2009 Constitution the Bill of Rights became bogged down in irrational arguments about gay marriage and devil worshippers, as well as more complicated and difficult arguments in relation to the rights of foreign nationals versus Caymanians. As an appeasement to religious fundamentalism and because of the significant number of non-Caymanian residents, Cayman’s Bill of Rights has ended up allowing discrimination in a number of areas and it separates locals from foreigners in various issues, such as taxation and education.
Nevertheless, there are for the first time certain rights enshrined in local law, and despite having three years to prepare, government may not be ready yet to fulfil the obligations it now has to its people. In a number of areas government may find itself falling foul very quickly of the new laws, not least because of a lack of funding in many areas of public life.

Attorney General Sam Bulgin, whose chambers will be tasked with defending legal actions filed by people against the government, said the bill signified that government has accepted its legal obligations to secure the basic human rights for all. This means anyone who alleges that government or its public officials have breached or threatened to breach their rights will be able to bring a claim that could result in a legally binding and enforceable judgment.
Bulgin explained that the court would be the guardian of human rights and will be called upon to adjudicate on controversial matters. From now on, there will be limits to the scope and legitimacy of executive and legislative decision-making, and Bulgin pointed to the importance of an independent judiciary, served by an independent legal profession, which would interpret the constitution, consistent with the rule of law. However, he pointed to some of the limits on the new rights.

“It is also important to bear in mind that a Bill of Rights does have certain important restrictions,” he said. “Freedom of expression does not allow persons the right to wilfully make defamatory statements about others. Freedom of movement does not permit the unlawful trespassing on another’s premises, while freedom of assembly does not give the right to unlawfully block a public thoroughfare to the inconvenience of others,” he said.

“The limitations are necessary for balancing the interests of various rights against the interest of public order, safety, morality, etc. The question will be whether restrictions on the rights and freedoms are proportionate and or reasonably justifiable in a democratic society,” Bulgin added.

The attorney general said some of the rulings from the courts could be perceived as “challenging or threatening deeply rooted and strongly held cultural assumptions,” and warned they could be unpopular. Describing the implementation of the Bill of Rights as a dawn of a new era, he said it would require “a degree of recalibration and readjustment”, especially by public officials.

“It may be seen as daunting but we should all show a willingness to embrace it. It is, ultimately, about a just and fair society for all,” the attorney general added, in the face of what could become a mounting workload for his office if Caymanians choose to take advantage of the new legal protections.

Source: Cayman News Service

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