Archive for May 16th, 2009

Candidates’ qualifications

| 16/05/2009 | 15 Comments

The one thing which I still remember about Obama’s bid for the presidency, six months after the fact, is the way which he carried himself and the tone that he set for the management of his campaign.

Up until then, those of us who follow politics had grown so accustomed to the mudslinging and finger pointing overtones of political campaigning that it was more a norm than an exception. I am not naïve enough to say that Obama was beyond reproach, but he did manage to bring a level of dignity back to the campaigning process which was sorely lacking from the US presidential race. A level of dignity that, quite frankly, is sorely lacking in the political campaigning process of the Cayman Islands.

It has been over a month since I made a request for the candidates’ qualifications in an effort to better inform myself before taking to the polls on May 20th. To date only three candidates have taken the time to not only respond but also engage in dialogue about their positions and their plans for the country.

No candidate from either of the two parties has actually replied or provided the information requested. The material posted onthe biography section of either party’s website does not actually provide the requested information. As a voter I cannot get a clear idea of the candidates’ formal education and work experience as what little is given on either topic is lost in convoluted and perhaps even irrelevant information such as marital status, number of children and place of worship. Merely being married does not make one a good partner, having children is simply a testament to one’s ability to procreate, and one’s choice of a place of worship only provides a location for where one might be found on a particular day of the week but says nothing about the contents of one’s heart.

A great deal of controversy has been taking up time on our airwaves over the last two weeks in regards to the very question of qualification of some of our candidates. This controversy has illustrated the gap that exists in our system when it comes to the submission and verificationof information on persons running for political office. The question is one of fact, not opinion, and as such it can be verified. One either does or does not hold a degree; one either did or did not work for a particular company or hold a particular post. There should be no play on words, no question of terminology, nor any room for misinformation. I don’t presume to know whose responsibility it should be, but clearly someone should be responsible for ensuring that the electorate is able to access such information.

Contrary to what has been said this information does matter. The people have asked for it and that in and of itself should be a clear indication that this is something that is important.

Do not misunderstand: this is not about limiting the number of persons who can run for office by putting forth a qualifications requirement. It is about understanding what each individual brings to the table so that each of us can choose whom we feel is better equipped to deal with “the real issues”, such as the global economic downturn, which have a direct impact on our daily lives.

It does not *only* take formal education to run this country. Nor does it *only* take work experience. My generation is not a generation of either/or. We want both. Make no mistake about it, things are changing. The days of the feudalistic exchange of a washing machine for a vote may not be over just yet, but they certainly are numbered. This generation expects more. We expect a certain level of intelligence from our representatives, and a truly intelligent person is one who has respect for both formal schooling and the school of life. 

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Bill of Rights, Freedoms and Responsibilities

| 16/05/2009 | 4 Comments

Part I of the Draft Constitution aims to implement in the Cayman Islands a Bill of Rights, Freedoms and Responsibilities. There are no comparable provisions in the current Cayman Islands (Constitution) Order 1972 (as amended).

Section 1 of the Bill of Rights provides that: (i) it recognises the distinct history, culture, Christian values and socio-economic framework of the Cayman Islands and affirms the rule of law and the democratic values of human dignity, equality and freedom; (ii) confirms or creates responsibilities of the Government and corresponding rights of every person against the Government; and (iii) does not affect, directly or indirectly, rights against anyone other than the Government except as expressly stated.

The purpose of the Bill of Rights is to regulate the relationship between the Government and the people of the Cayman Islands. If the Government of the Cayman Islands infringes a right of an individual as contained in the Bill of Rights, that individual would have recourse to the Courts of the Cayman Islands against the Government.

Commencement of the Draft Constitution

Following the 20 May 2009 general elections, if the referendum and the elected Government are in favour of the Draft Constitution, the Draft Constitution would need to be issued as an Order by Her Majesty in Council before coming into effect. The Bill of Rights, save certain sections, would not come into effect until three (3) years after the Draft Constitution is brought into force. Further, the provision dealing with the segregation of juvenile prisoners from adult prisoners, for example, would not come into effect until four (4) years after the commencement date of the Draft Constitution.

Subject to Her Majesty’s reserved powers, the Draft Constitution (if it is brought into effect), may not be further amended without the authorisation of a referendum, unless such change is declared by the Premier and the Leader of the Opposition to be minor or uncontroversial, in which case a resolution of Parliament would be sufficient.

Treatment of Rights

The Bill of Rights may be broken down into three (3) categories:
1. Absolute rights – these rights are not limited in any way (e.g., section 3 torture and inhuman treatment);
2 Limited rights – there are a few exceptions to these rights (e.g., section 5 personal liberty); and
3 Qualified rights – the Government would be able to deprive a person of these rights in special circumstances. The deprivation of such rights must, however, be proportionate to the aims pursued (e.g., section 12 assembly and association).

Aside from absolute rights, all other rights must be balanced against factors such as, for example, the rights of other persons, public safety, public morality and other interests of the community as a whole. Below is a list of certain important rights contained in the Bill of Rights. It should be noted that sections 2 to 20 of the Bill of Rights are intended to incorporate the European Convention on Human Rights ("ECHR") into the Draft Constitution.

Personal Liberty (Section 5)

No person shall be deprived by Government of liberty and security of the person. This right is, however, subject to certain exceptions which include lawful arrest and detention.
Previous working drafts contained an obligation on law enforcement officers to inform a person arrested or detained of their right to remain silent. The Draft Constitution, however, does not impose such obligation on law enforcement officers.

At common law, under the ‘Judges’ Rules’ (which were given statutory force in the Evidence Law (2007 Revision)), a caution of the right to remain silent is required to be given to suspects upon arrest. However, because this requirement is not absolute, a Judge has a discretion as to whether to admit evidence where no caution was administered and may direct a jury to draw an adverse inference from silence in certain limited circumstances. An absolute Constitutional obligation to inform a person of this right may have removed this discretion so that any confession would be automatically inadmissible, even though it was voluntarily given since such person was not first informed of their right to remain silent.

The fact that the requirement to administer a caution is not enshrined in the Draft Constitution as an absolute obligation would not impinge upon the presumption of innocence, or negate the constitutional right to remain silent or the express provision in the Evidence Law (2007 Revision) for a caution to be administered under the ‘Judges’ Rules’ (until such time as they are replaced by the Grand Court Rules)

Conscience and religion (Section 10)

No person shall be hindered by Government in the enjoyment of his or her freedom of conscience. Freedom of conscience includes freedom of thought, religion or religious denomination. Unless a person has consented, or in the case of a minor, his or her parent or guardian has consented, this right would protect the child from being forced to receive religious instruction or attend any religious ceremony that relates to a religion other than his or her own.

There is some concern in the community that this right may restrict the teaching of Christian religious education in public schools. Alternately, some may argue that other religious courses may also need to be taught otherwise children who are not of the Christian faith (which may need to be proven) would simply opt out of the usual Christian religious education classes. It should be noted, however, that this right allows for schools that are affiliated with a specific religion to continue to teach their religious principles to children of that specific faith, regardless of whether or not the school is in receipt of Government funding. Schools and community educational institutions would be allowed to impose requirements on employment, admission or courses of study necessary to maintain the school’s religious beliefs, subject to the employment laws in force. The Government may deprive a person of this right if it is necessary to do so in the interests of defence, public safety, public order, public morality or publichealth.

Non-Discrimination (Section 16)

This right would provide a person with protection from discrimination by the Government, in relation to all other rights provided for under the Bill of Rights. To enforce such rights, a person would need to prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Bill of Rights, for example a child’s right to education (as discussed in more detail below).

The Draft Constitution provides that "no law or decision of any public official shall contravene this section if it has an objective and reasonable justification and is reasonably proportionate to its aim in the interests of defence, public safety, public order, public morality or public health." For example, the Government may discriminate if it can be reasonably and objectively justified.

The present section 16 does not recognise any ‘free-standing’ right of equal treatment. It should be noted, however, that non-discrimination rights in other countries are rarely absolute and generally subject to qualifications. The United Kingdom, for example, has itself never accepted a ‘free standing’ right to non-discrimination since the equivalent clause in the ECHR is not free standing.

It has been contended that because this right is not free-standing, it offers no protection against discrimination by Government in relation to matters not set out in the Bill of Rights, e.g., discrimination in relation to social and economic areas such as health care, provision of services, housing and employment.

It should be noted, however, that the Bill of Rights does not apply solely to Caymanians but applies to everyone, regardless of nationality. If a free standing right of non-discrimination was provided for under the Draft Constitution, it may potentially eliminate preferences for Caymanians, e.g., in respect of financial assistance from social services, tertiary education scholarships, reduced stamp duty rates and exemption for first time home buyers. This stands in contrast to those areas in which preferences for Caymanians are expressly preserved, for example employment and engaging in any business or profession.

Education (Section 20)

Every child has the right to an education. This positive right would obligate the Government to, within available resources, provide primary and secondary education to every child. This right, however, does not automatically guarantee free primary and secondary education once the Bill of Rights comes into force.

This right is not limited to Caymanian children. Presently, non-Caymanian children are required to pay a fee to attend public schools. This may result in the elimination of the preference in placement given to Caymanian children and/or the elimination of such fees charged to non-Caymanian children. Parents would still have the right to educate their child in a private school, at their own expense. As well, parents would have the right to ensure that the teaching provided by such a school respects their religious beliefs.

Enforcement of rights and freedoms (Section 26)

Any person may apply to the Grand Court to claim that the Government has breached or threatened their rights and freedoms under the Bill of Rights. An appeal lies as of right to the Court of Appeal from any final determination of any issue by the Grand Court, and from the Court of Appeal to the Privy Council provided an application is not frivolous or vexatious. Proceedings must commence within one year of the decision or act that is claimed to breach the Bill of Rights, or from the date by which such decision or act could reasonably have been known to the complainant.

As a first resort, rather than apply to the Court, an individual may lodge a complaint with the Human Rights Commission which is empowered to give advice, investigate such complaints and bring conciliation between the parties, but may not adjudicate on complaints.

Conclusion

The Draft Constitution refers to the Bill of Rights as a cornerstone of democracy in the Cayman Islands. The Bill of Rights is, however, somewhat complex and has many interconnected provisions, some of which have attracted considerable debate. While not addressing all aspects of the Bill of Rights, this article has sought to summarise certain important rights and consider potential implications of such rights if brought into force in the Cayman Islands under the Draft Constitution.

 

This is the fourth in a series of articles prepared by the Caymanian Bar Association to consider the implications of various aspects of the proposed Cayman Islands Constitution Order 2009 (the 2009 Draft Constitution) that is to be the subject of Cayman’s first referendum vote on 20 May 2009.

See also:

Branches of Government: Existing and Proposed

New offices and commissions

Greater accountability or road to independence?
 

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LIME keeps elections office in touch

| 16/05/2009 | 0 Comments

(CNS): Efficient and reliable communications will be a key factor in the forthcoming historic election on Wednesday, which will not only see the country go to vote for a new government in very uncertain times for the Cayman Islands, but will also see the electorate participating in a referendum on a new constitution. As a result, local telecoms provider LIME (formerly Cable & Wireless) has said that it is committed to help keep information flowing during the process.

“This is an important time for our country; not only are elections taking place but also the referendum for the new constitution, which meansthat it is a very busy time for the Elections Office and critical that they are able to stay in touch,” said Country Manager Anthony Ritch.  “LIME has donated 50 mobile phones along with credit so that election officials can assist voters with information about polling station locations and also to keep the Elections Office staff in touch with one another across the islands.”

Everton Stewart, Elections Office IT Manager, said the cell phones are being used by the elections field officers, returning and deputy returning officers to communicate with each other and to the Command Centre.

Last week, the LIME phones were used to help with mobile polling in Grand Cayman to contact people at their homes, to advise that the elections team would be polling them that day, and then once more when the teams were actually on the way.

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Webb evidence in question

| 16/05/2009 | 0 Comments

(CNS): The accusation by Elizabeth Webb that Justice Priya Levers had written the infamous ‘Leticia Barton letter’ to Cayman Net News became a key factor during this morning’s hearing when even Timothy Otty, the tribunal’s QC, conceded that Webb’s evidence was contentious. During Justice Levers’ second day on the witness stand the credibility of her former secretary’s evidence was challenged by Levers’ counsel, Stanley Brodie QC, when he noted that were this a criminal proceeding the evidence would have been thrown out, and as a result Otty should not question her on it.

Following some two hours of questioning regarding the hearsay evidence against Levers by some court house staff that she was openly critical of other judges, including Chief Justice Anthony Smellie, Otty turned to the question of the authorship of the letters and told the tribunal that Brodie had raised some concerns.

“Mr Brodie has mentioned that, in light of the evidence, it might be improper to ask any questions about the letter and to put to Justice Levers Ms Webb’s allegations,” said Otty. He explained that what he had wanted to do was raise the apparent coincidence of the views attributed to her by some witnesses and the content of the Leticia Barton letter. He then proposed to get her to reflect on the alleged evidence of this and pointed out that if the tribunal were to consider this evidence as true, in turn Justice Levers’ evidence could not, therefore, be true, illustrating the seriousness of this allegation and the importance of the veracity of the witnesses statement.

Brodie told the tribunal that it seemed to him “so hopelessly unsupported by evidence – indeed the evidence is all to the contrary – that I would have thought it would be improper to make a positive case of that sort to Madam Justice Levers,” he said. Brodie explained that if these were criminal proceedings the Crown would have been forced to discount such evidence. He went on to observe that it was a serious allegation if it were true, but the case would have to be overwhelming. He added that as any questioning of the judge on the matter would impact his closing statement, he would like to know the tribunal’s position on Webb’s statement.

Otty made the case that the goal of the tribunal proceedings was to make inquiry and that no observer, no matter how ill-informed, should be allowed to think anything important was overlooked. Following a few minutes consideration, the tribunal decide to hear Otty’s questions on the letter and Otty then asked Levers her position on each of the points raised in it.

The letter opens with a quote from Lord Bingham and he asked Levers if she was familiar with it at the time, to which she said she was not. Levers then went on to deny that she agreed with the letter and pointed out that where it stated the judiciary was a laughing stock, she herself was a part of that judiciary and hoped to be again. She denied every point put to her by Otty and even noted that the criticisms about judicial entertainment expenses on overseas trips in the letter were probably pointed at her as at the time the chief justice had sent her to London.

Otty then asked, given the evidence of Webb about seeing the letter on Justice Levers’ desk, whether the judge had written it. “I did not write such a letter, I did not call my son or try to give it to Ms Webb to scan,” she said. “I had nothing to do with it.” Again she drew attention to the fact that the criticisms in it would have included her as well as she was still part of the judiciary and she would not write about the judiciary or herself that way.

During the morning’s questioning Otty had probed Levers on courtroom hearsay that she supposedly held beliefs similar to those set out in the letter. However, on each occasions Levers offered a viable alternative to the hearsay accusations or had corroborating evidence for her denials of the alleged conversations taking place. Her private jottings of the day-to-day goings on in and around the court were also put to her as accusations that she harboured resentment or was plotting against the chief justice. She persisted that until her suspension she had no ill-feeling towards anyone at the court and believed she had a cordial relationship with most of them and a very good one with the chief justice. Aside from her fears of Sanderson, which she has noted on a number of occasions, the judge said the hearsay was unfounded.

Her alleged hatred of Canadian staff was undermined when she noted that she had no idea until much later that it was the Canadian court reporters who had gone to the chief justice with the transcripts, and Brodie read out a letter she had written to the chief justice highly commending Valdis Foldats, the Canadian clerk of court, for his work in mid 2007. She noted too that she liked Justice Alex Henderson, but admitted she had criticized the judges for drinking coffee and smoking on the street.

Hearsay accusations from court staff that she had complained about the appointment of Catherine Chesnut to the position of research analyst when she was allegedly not qualified were also brought into doubt when Levers revealed her role in the appointment and that is was she who had sent the request to the civil service for the exemption from advertising the position.

As the morning wore on it was made very clear by both sides that the veracity of Webb’s statement was crucial to the entire proceedings. It was brought into further question when Otty rasied the issue with Justice Levers over the allegations of psychic readings. He asked her who exactly was the card reader who had been referred to by Webb as "Mrs Denno" in Webb’s statement.

Have you ever met or known anyone called Mrs Denno?” he asked. Justice Levers then told him that she had a relationship with a Mrs Denno who had no family and was in and old age home in Jamaica. She explained she would visit her and take her food. Levers than recalled how the lady would say things such as, "God bless you. You’ll get a bag of grapefruit tomorrow morning from Mandeville." 

Levers then said, “One day, she said to me when I visited her in Jamaica, she was ill, and I went especially to Jamaica to visit her — I still maintained her until she was sick — and she said to me, ‘You have kidney problems, that is why you have to go back for dialysis,’ I said, ‘Yes.’  She said, ‘Somebody with a red car is going to give you a kidney.’ So I said to Elizabeth Webb when I came back, if none of my children are a suitable match, I am going to let you stand by the window and the first red car you see you are going to run down and stop that and ask the man or woman if they will give me the kidney — and that was the extent of my conversation as far as getting kidneys from red cars were concerned,” she related, to considerable amusement in the room.

Otty then declared he had no further questions on that matter. After finishing his questions regarding the Leticia Barton letter he handed over to Brodie, who merely clarified a few issues with Justice Levers regarding the jottings in her private notebook, which had been submitted in evidence against her but which had been altered by Webb before she took them to the chief justice. He drew Levers’ attention to the note saying,  "Betsy rude to me – stop talking."

What was that about?" he asked. Levers said she thought it was the time when she was dismissive, so she had written it down.  I think that we know that the next two lines were inserted into the document by Mrs Webb,” Brodie added making it clear that Webb had chosen to change the appearance of the note before she sent it on to the chief justice.

Can you think of any reason why?” Brodie asked inquiring if the judge had authorised Webb to make alterations to her notebook. “No, sir, I did not,” Levers said.

The tribunal was then adjourned until Monday morning, when both Otty and Brodie are expected to offer their final submissions.

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