Legal preps for human rights writs

| 14/01/2011

(CNS): The Cayman Islands top lawyer has said the government’s legal department is expecting numerous applications to the courts alleging breaches of human rights once the country’s bill of rights comes into effect in November next year. Moving the motion for the opening on Wednesdayof the Grand Court for the year 2011, Attorney General Sam Bulgin said that over the next two years government and civil servants had to prepare for the bill to limit the applications but it was inevitable that the courts would be called upon to adjudicate. The Attorney General’s Chambers will be the body responsible for defending government departments and personnel challenged under the bill of rights.

Bulgin said, “Of the utmost significance over the next 22 or so months is to ensure that all institutions of government and personnel are ready for the bill of rights,” he said, “We expect that there may well be numerous applications to the courts alleging breaches of the guaranteed rights. It is therefore necessary for appropriate training all round to be undertaken to prepare ourselves so that such applications do not have to be made. Yet it is perhaps inevitable that the courts will be called upon to adjudicate on these rights and this carries with it the need for greater vigilance to ensure and support the independence of the judiciary and indeed the rule of law.”

Despite the fact that the bill of rights will not be in place until 2012, the AG noted that the people of Cayman still had legal access to protect their rights in Strasbourg. He said that during 2010 history was made when the European Court of Human Rights (ECHR) adjudicating for the first time on a case from the Cayman Islands that was tried in the Grand Court.

“The court heard an application from Kurt Fabian Ebanks in which he alleged that his right to a fair trial under Article 6 of the European Convention on Human Rights was breached and that he was able to access the European Court by way of the Right of Individual Petition, which was extended to Cayman on a permanent basis in 2006,” Bulgin said. “The court found, however, that there was no such breach of his rights and dismissed his application. Accordingly, even in the absence of a fully operational bill of rights, residents of these Islands do have access to the ECHR to seek redress.”

Following the implementation of the Cayman Islands Constitution at the end of 2009, a number of laws have needed to be changed and government, the AG said, was working hard to amend them to meet the requirements of country’s highest law. He pointed out that even where some relevant legislation has not yet been amended, it did not mean that things were unconstitutional.

“Section 4 of the actual Constitution Order quite properly anticipated that not all relevant amendments would be in place when the new Constitution came into effect – it therefore instructively provided that all relevant existing laws shall have effect after November 6th, 2009, as if they had been made pursuant to the 2009 Constitution and shall be read and construed with such modifications, etc, to bring them in conformity with the new Constitution. So there is no need for panic; we will get there,” he assured the audience at the official court ceremony.

He said that efforts were going well to put in place the building blocks and framework required to implement the constitution in full but he said that it was a work in progress. He pointed to key Institutions that he said were already in place and operational, such as the Constitutional Commission, the Human Rights Commission, the Judicial and Legal Services Commission, the National Security Council, the Advisory Committee on the Prerogative of Mercy and the Commission for Standards in Public Life.

However, he made no comment on the fact that the Standards in Public Life Committee, which is charged with investigating the ethical and honest behaviour of politicians and civil servants, has not been functioning as it says it cannot fulfil its constitutional requirements without new legislation.

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Comments (5)

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  1. Anonymous says:

    This is the flawed thinking and approach that gets the Cayman Islands in problems every time….

    What the current government should be doing and should have been doing ever since being elected is EDUCATING civil servants and government employees, particularly those in the law-enforcement departments, on what exactly is in this Bill of Rights and how to avoid violating citizens rights.

    That Cayman has a long, sordid history of ‘underhand’ human rights abuses is a known fact.

    This expected rush of cases to the courts is reflective of the Cayman Islands having been a non-human right compliant country for generations.

    This issue has to be about more than ‘limiting’ the cases brought before the courts.

    It has to be about educating and changing the culture of an entire society.

  2. peter mitchell says:

    Ah yes, yet more protectionist legislation to assist the Cayman Islands in pretending to be a sophisticated jurisdiction. F.O.I. anyone? What a joke.

  3. Nonnie Mouse says:

    All public authorities and Courts are already under a legal obligation to exercise their functions in a manner compatible with the Convention.

    • Anonymous says:

      Technically, they’ve been under that obligation all along, especially more so since 2006 but…

      Until local legislation is put in place that clearly spells out the process for bringing charges for human rights abuses and the penalties for the Government when found guilty, any Bill of Rights isn’t worth the paper its printed on.

      Here you have the Attorney General stating that the Government is gearing up for its own defense of human rights abuse cases against it but as of now, there has been absolutely no word from the Premiere and his Government on their intent to put this local legislation in place.

      The Cayman Islands Government will attempt to block every complaint of human rights abuse it will face from ever reaching the courts in Cayman.

      Cayman has always been and will continue to be a non-human right compliant country, even after this Bill of Rights comes into effect.

      It will take a major case brought by powerful entities to change anything in that regard.