Cayman Ministers’ Association
Position Statement on New Draft Constitution
March 2009
The Cayman Ministers’ Association (CMA) wishes to reiterate our
confidence that the new draft Constitution affirms the rule of law, it
acknowledges the human dignity of all, and it declares equality for all
and the rights to enjoy freedom for all before the law (Section 1, (2)
a). The CMA has considered the arguments advanced, in particular
by the Human Rights Committee (HRC), and we equally and ardently defend
our position and reject the contention that the new Constitution as
drafted does not provide comprehensive human rights protections for
certain groups, merely because these groups are not specifically named
in Section 16 (Non-Discrimination) of the Bill of Rights, Freedoms, and
Responsibilities (BOR) in the proposed Constitution.
We are also deeply disappointed that the HRC has chosen to once again
make personal attacks against the character of a fellow member of the
negotiating team, as they did during the final round of talks in
London against the CMA and Seventh Day Adventists.
The CMA rejects allegations that our support for the narrowing of the
BOR Section 16 (1) is based upon unjustifiable or mean-spirited
sentiment. Our objection to the so called “free-standing
clause” reflects our understanding that a free standing right leaves
open the door for wide-ranging judicial activism in the future and also
for other abuses of Cayman’s legal and financial systems.
The HRC has stated (in a document submitted at the constitution negotiations):
“The most vulnerable groups of the Cayman Islands population, including
women, the elderly, children, the mentally ill, physically and mentally
disabled persons, gays and lesbians, and many others, would be deprived
of valuable and necessary constitutional protection as a result of the
elimination of the free-standing aspect of the right.”
The careful research and deliberations of the constitutional
negotiating team from Cayman, from the government’s legal advisor
Professor Jeffery Jowell, and from the team of experts from the Foreign
and Commonwealth Office (FCO) led by the UK Minister Gillian Merron
have all made it abundantly clear that they will not accept any draft
document that would unjustifiably exclude the rights of any category of
persons, and with this the CMA are in full agreement.
Section 16 (2) of the new draft Constitution states:
In this section, “discriminatory” means affording different and
unjustifiable treatment to different persons on any ground such as sex,
race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, age, mental or
physical disability, property, birth or other status.
This Section of the proposed Constitution is widely based on Article 14
of the European Convention of Human Rights (ECHR), and the CMA asserts
that Section 16 provides even greater protection for all, in that it
specifically names age and mental or physical disabilities, both of
which are not mentioned in the ECHR.
The CMA does not support including sexual orientation in the
constitution as we believe this would allow the specific claim to
rights that other (unnamed) groups are not afforded. What the HRC
has advocated, and what we have objected to, is the specific inclusion
of sexual orientation in a list of protected rights, as we believe that
everyone is currently covered on the basis of “Sex” or “Other Status”
regardless of their sexual orientation.
Professor Jeffery Jowell’s has stated; “the Cayman Islands bill of
rights goes beyond the Human Rights Act (HRA) in the UK, fulfils treaty
obligations which were all very carefully scrutinized, and includes
additional rights that don't appear in the HRA or in the constitutions
of a number of countries. Among these is the right to lawful
administration, fairness, rationality, proportionality, and so on in
judicial review. It also includes children, education and
environmental rights which go beyond anything in the UK.”
The HRC states:
The motivation for the narrowing of section 16 is itself
discriminatory. “No justification has been put forward apart from the
expression of vague concerns by the CMA about conferring rights on gays
and lesbians in our community.”
The CMA as well as all other groups put forward recommendations and
reasons throughout the talks which were much more than “vague
concerns”. The current document is the final version of a
negotiated political agreement between the UK government and the Cayman
Islands government; the presentations of all parties to the talks were
fully considered and debated and the UK has returned this document as
acceptable, modern and novel. The UK Minister responsible has given her
seal of approval to the new draft.
It should be remembered that it is the UK government that must comply
with their obligation under the EU convention on Human Rights.
Because of this requirement the UK would NOT have accepted a document
that did not fully comply with their international obligations.
On the narrowing of Section 16 (1) Professor Jowell has stated “the
United Kingdom government has itself never accepted a freestanding
right to non-discrimination. It has accepted only article 14, which
provides that the enjoyment of rights and freedoms set out in this
convention shall be secured without discrimination on the list of
grounds.” The CMA has made this very point repeatedly.
The CMA believes this document is acceptable because (1) it brings the
UK government into compliance with their international obligation,
(2) the very idea of a limitation on the right to
non-discrimination contained in the current document is extracted from
and compatible with Article 14 of EU Convention on human
rights, (3) the UK itself has ensured its own reservation
regarding the free standing right to non-discrimination as have the
majority of other countries which are under the territorial scope of
the European Convention on Human Rights. There are eighty eight (88)
Member States and Sovereign territories to which the substantive
provisions of the Convention and its Protocols are ratified (and
therefore in force) for the territories under the control of the
members of the Council of Europe. An examination of this document
clearly shows that ONLY sixteen (16) of the eighty eight (88) have
fully ratified Protocol 12 which is the right of non-discrimination
extended beyond the rights protected under the Convention. As we
have said repeatedly the UK itself has not ratified it.
Consider the following quotation which identifies the problems that can
arise from any “free standing clause”: “The United Kingdom
Government has declined to sign Protocol 12 on the basis that they
believe the wording of the protocol is too wide and would result in a
flood of new cases testing the extent of the new provision. They
believe that the phrase "rights set forth by law" might include
international conventions to which the UK is not a party, and would
result in incorporation of these instruments by stealth.”
The concerns of the CMA have always been much broader than the HRC has
recognized and cannot be accurately described as “vague concerns” about
“gays and lesbians”. As it stands we believe that Section 16
preserves existing benefits for Caymanians e.g. financial assistance
from social services; affordable housing loans; stamp duty reduced rate
and exemption for first time buyers;
etc.
It is important however to understand that the Bill of Rights as a
whole does not apply only to Caymanians; it applies to everyone,
regardless of nationality. Programmes such as college
scholarships and government guaranteed home assistance would either
have to be abandoned for Caymanians or provided equally to all other
residents if Section 16 (1) was made free standing.
Conclusion:
The CMA believes that the Bill of Rights Section 1, (2) (a) of the new draft Constitution,
clearly affirms the rule of law and the democratic values of human dignity, equality and freedom for all.
This assures every individual person of their human rights and includes
protection for the mentally and physically disabled. The CMA would not
support any effort to deny any person their rights of equality before
God and the law.
We believe that what is contained in the current document is fair and
reasonable and affords appropriate protection for everyone while
ensuring that government can reasonably and within the available means
of the country provide necessary services.
Although in London the HRC promised to campaign against the Bill of
Rights, its recent press releases have stated that “the HRC is NOT
determined to campaign against the Bill of Rights. We support
advancement and agree that the alternative is WORSE if the alternative
is nothing.” We are heartened by this promise and trust that all
parties to the constitutional talks will now focus on continued
meaningful education regarding the benefits of what is contained in the
current draft. We are also deeply concerned that some of the
actions of the HRC as a member of the Cayman negotiating team may have
inadvertently ensured that no NGOs will ever be invited to participate
in future talks at this level, and in our opinion this would be a most
unfortunate tragedy, as throughout the talks the presence and
participation of the NGOs have been applauded as positive towards the
final outcome by our elected Representatives as well as the UK
negotiators and Minister.
We have a UK approved final draft Constitution, and the
government and opposition as the duly elected representatives of the
people have made their decision to accept this final negotiated
document and have rightfully put its final destiny in the hands of the
people for a referendum vote on May 20. We therefore encourage the
people of the Cayman Islands to educate themselves on its contents, ask
pertinent questions, and make decisions that are well
informed. The draft Constitution marks a historic milestone
for us all and for the first time in our history will enshrine Human
Rights protection (brings rights home) for our people in a more modern
constitution.
We have every confidence in the wisdom and common sense of the
Caymanian people to both understand and make an appropriate decision as
to the acceptability and desirability of the proposed Bill of Rights
Freedoms and Responsibilities and the new constitution.
The CMA believes that support for the new Constitution and education
about what it does and does not do is the responsible course of action
at this time.