Archive for July 24th, 2008

Residents’ voting rights

Residents’ voting rights

By Olivaire Watler – Posted Thursday, 24 July 2008

13 comments

With both the general elections and a referendum on constitutional
modernization scheduled for next May, a demand that non-Caymanians
have the right to vote has once again reared its head. Some have
sought support for this contention in the provisions of various human
rights conventions, declarations and treaties, which Cayman is said to
be openly flouting.

Proponents of this notion portray Cayman as failing to give effect to
universal and equal suffrage and being on the fringes of the
international community in this respect. There has even been a
suggestion that it is racist to exclude non-Caymanians from the right
to vote. Well-informed observers will recognize this as mere rhetoric,
but the rhetoric (not only in Cayman but in other Overseas Territories
such as Bermuda) has intensified to a level that has caused the
British Government to ask the Overseas Territories to re-visit the
issue of whether long-term residents in the respective Territory
should be given the right to vote.  

The purpose of this article is to examine the bases for these claims
so that Caymanians can make an informed judgment on the issue.

The fact of the matter is that most countries reserve the right to
vote to its citizens. For example, Australia – which is often regarded
as a progressive, liberal democracy – in 1984 repealed the legislation
which had allowed Commonwealth citizens to vote, thereby restricting
the right to vote to Australian citizens.  The United States of
America, which is generally considered a great democracy, does not
confer the right to vote on resident aliens. In another liberal
democracy – Canada – voting rights at the federal level is restricted
to Canadian citizens.  The Canada Elections Act is clear
and simple: “Every person who is a Canadian citizen and is
18 years of age or older on polling day is qualified as an
elector”. 

These three countries have a major factor in common – a large
immigrant population. While it is correct that some countries, for
example New Zealand, have moved in the direction of permitting alien
voting rights, they tend to have much smaller immigrant populations.
It is true that in Britain a resident Commonwealth citizen may vote in
the general elections, but this is regarded by many as an anachronism.
In any event, this standard would not satisfy the demand for all
resident aliens in Cayman to be entitled to vote since it would
exclude Filipinos, Hondurans and Americans to name a few. 

Even in countries where non-citizens are granted the right to vote,
this is often restricted to local elections or specific matters which
will not have any impact upon the policies for the country as a whole.
On the whole it is fair to say that alien suffrage is controversial
and does not in any sense represent the international norm. I would
invite readers to ‘google’ “universal suffrage”, e.g. http://en.wikipedia.org/wiki/Universal_suffrage

Human Rights

Sometimes quoted in this regard is Article 21(1) and (3) of the Universal Declaration on Human Rights which reads as follows:

“(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives

 (3) The will of the people shall be the basis of the authority
of government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be
held by secret vote or by equivalent free voting procedures”.

Perhaps this is quoted in preference to the provisions in the various
international human rights treaties because it is hoped that the
vagueness of the language might render it capable of bearing the
desired meaning. However, the Universal Declaration laid down
the basis for the subsequent covenants and treaties which in turn
amplified and gave effect to the Universal Declaration in
international law.  Article 25 of the International Covenant
on Civil and Political Rights could not be clearer:

“Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without unreasonable
restrictions:

(a) to take part in the conduct of public affairs, directly or through
freely chosen representatives;

(b) to vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors;”

In other words, the right to vote is tied to citizenship. It does not
entitle you to vote in a country of which you are not a citizen.
Citizenship is important because it connotes a duty of permanent
allegiance which mere residence, for whatever period, does not. 
To separate the right to vote from citizenship is to devalue
citizenship.

Article 21 of the Universal Declaration is nonetheless clear
if one focuses upon the proper meaning of “his country”. One’s country
is not the country or territory in which one happens to live for the
time being, but rather the country of which one is a citizen. 
This distinction is clear from the fact that in respect of certain
rights there is no qualification as to country, for example “no one
should be subjected to torture”, but certain political rights are
defined by reference to “his country”.  Article 21 was never
intended to assert some new right to vote for resident aliens but
rather to disapprove of discrimination as between citizens on the
basis of race, gender, religion, land-ownership etc. For example,
under apartheid non-white South Africans were not entitled to vote.

Clearly, “the people” in Article 21(3) must be read in the context of
Article 21(1). It would be fanciful to think this means every person
present within the country. In other words, Article 21 is merely
stating what is the international norm, namely that the citizens of a
country should have the right to elect their government.

It is also asserted that in Gibraltar a mere six months’ residence is
enough to establish the right to vote and that this qualification was
set by the European Court of Human Rights, thus suggesting
that an international human rights standard has been established.
After significant research I have been unable to uncover such a
revolutionary decision. It would have the effect of finding most of
the democratic world to be in breach of their human rights
obligations.

It is of course preposterous to suggest that restricting voting rights
to citizens is somehow racist. Caymanians, including those who have
been naturalized and acquired that status, represent the full spectrum
of ethnicities.  What the proponents of the ‘free for all’ voting
right seem to miss is that it is possible for long-term residents to
be naturalized as British Overseas Territories Citizens by virtue of
their connection to Cayman and thereafter to obtain the right to be
Caymanian, i.e. Caymanian status, which will render them full citizens
and therefore eligible to vote. If it is the case that those long-term
residents view full citizenship with disdain or simply cannot be
bothered then it speaks volumes about their commitment to these
Islands (or lack thereof), and this is a compelling argument why they
ought not to be allowed to determine the policies and destiny of this
country. 

Chris Randall: Mr Watler’s article contains a great number of
facts and statistics but misconstrues the concept of voting rights for
commonwealth citizens. 

The whole point of the Commonwealth is an allegiance, however loosely
defined, to H.M. Queen Elizabeth II, her heirs & successors. Those
commonwealth countries which allow othercommonwealth citizens to
vote, do so on the basis that they, along with the nationals of those
particular countries all owe a similar allegiance, expressed
through the government of whichever country they happen to be
in. 

(While there are commonwealth countries with a president,
elected or otherwise, as head of state, and others with their own
monarchies, this does not alter the relationship).

The Dominion of Canada has, over the past 40 – odd years, become a
socially liberal society and thus her institutions and laws
have been adapted to reflect this. In that context it appeared
inequitable to bestow voting rights on the very small number of
commonwealth citizens who became residents but did not take out
Canadian citizenship whilst not assuming the administrative nightmare
of doing likewise for all other non-Canadian residents. In recent
years Australia has followed a similar, but less liberal, path.

In the Cayman Islands situation it would be ludicrous to extend voting
rights to persons of non-commonwealth nationality, but it is equally
ludicrous that those same persons may be granted Caymanian status
without first having to be naturalised; and yet, it happens. Ask an
American who has ‘status’ what his nationality is or where his
allegiance lies: no prizes for guessing the answer.  

Graeme Halkerston: Mr Watler does not address
the most relevant human rights provision which applies to
residents of the Cayman Islands, the government of the Cayman Islands
and the government of the United Kingdom.  Article 3 of the First
Protocol of the European Convention of Human Rights provides that
Convention States “undertake to hold free elections . . .which ensure
the free expression of the opinion of the people in the choice of the
legislature”. 

The Convention case law interpreting this provision indicates the the
Legislative Assembly would constitute a legislature and that UK
citizens should be entitled to vote in elections to that
legislature (Matthews v. UK [1999] 28 EHRR 361). Domestic distinctions
within a Convention State between citizens as being the wrong “type”
to vote in an election are improper (Aziz v. Cyprus [2004] ECHR
6994/01). 

If the United Kingdom fails to protect human rights in Cayman, such a
failure would now appear to be an actionable in England as breach
of the Human Rights Act 1998, as actions (or inactions) of the United
Kingdom government outside of Great Britain do fall within
the remit of the Human Rights Act (Al-Skeini v. Secretary of State for
Defence [2007] UKHL 26).  A failure to extend the
franchise prior to the next elections may expose the
Treasury to a significant damages claim or an order to pass
legislation to remedy the breach.

One justification for discrimination in the franchise provided by the
Leader of Government Business to the FAC was that it was believed that
non-Caymanians do not have the long term interests of the territory in
mind.  This shows that the policy is, in part at least,
based upon the perception of the political beliefs of resident non-
Caymanians.  While the right under Article 3 is not absolute, the
presently expressed official justifications for the
derogation from the right are inadequate to support the
derogation.  Further the alleged importance of the uniqueness of
the Caymanian voters’ priorities would appear to be overstated given
the extent of the 2003 status grants and the consequences this
ultimately had, or may have, on the composition of the
electorate.

Olivaire Watler: The Mad Hatter apparently would like
to change the topic from whether residents should possess the right to
vote to what period of residency should render one eligible for
citizenship since he believes this is safer ground.

My point concerning Australia, Canada and the United States of America
was not to suggest that their standards should be universal, but
rather to argue that if liberal democracies with much lower net
migration rates and expatriate/citizen ratios are justified in
reserving voting rights to its citizens then Cayman must be more
justified. (Incidentally, the figures have just been updated and show
that Cayman’s rate of 16.88 migrant(s)/1,000 population and is much
greater than the combined rates of Australia (3.72) Canada (5.62) and
the United States (2.92)[1]. Perhaps five times the net
migration rate ought to imply a similar multiple for the period of
residence required). There are many other nations which restrict
voting rights to citizens and have a substantial period of residence
before one is eligible for citizenship. Switzerland, for example,
requires a permanent resident to have lived continuously in
Switzerland for a period of 12 years before he is eligible for
citizenship.

Claims to political rights must be considered in the light of the
local situation, in particular the extraordinary imbalances I have
identified. These cannot simply be ignored. It is simply not feasible
to grant voting rights or citizenship to everyone who has lived here
for a few years. No other country in a similar position has done so or
will do so. There need be no apology for this. It has the desirable
effect of enduing citizenship with the appropriate value. 

Also, notwithstanding my effort to clarify the point, apparently he is
still unaware that Caymanian status alone is not full citizenship. It
must be coupled with naturalization as a British Overseas Territories
Citizen by virtue of your connection with Cayman (see s. 28B(3) and
(4) of the Cayman Islands (Constitution) Order 1972 (as amended)) (the
“Constitution”).

The Mad Hatter evidently thinks that I ought to feel uncomfortable
about Article 25 of the International Covenant on Civil and
Political Rights. I am not sure why. I am not aware that there is
any period of restriction after having attained full citizenship to
run for political office.   Perhaps he needs to understand
that to stand for office one must have no other citizenship (see s.
18(2) of the Constitution), and that it is an entirely reasonable and
standard restriction that a candidate should not owe any allegiance,
obedience or adherence to a foreign power or state. Is the Mad Hatter
ready to renounce his other
citizenship?    

Olivaire Watler:Mr Halkerston’s ‘response’ shows very little
evidence that he has actually read and understood the contents of my
article except to note that it does not refer to the European
Convention on Human Rights
(the“Convention“).  I do not see that our
Constitution (granted to us by the United Kingdom) makes any improper
distinction as between citizens in terms of voting rights. If you are
a full citizen (which I defined in my article) you are entitled to
vote, if you are not a full citizen you are not entitled to vote.

There is no relevant difference between the International Covenant
on Civil and Political Rights and the European Convention of
Human Rights (the “Convention“) on this issue. I do not see
that the Matthews case has any relevance to the issue. The
applicant in that case was a British Citizen resident in Gibraltar who
claimed that the absence of elections in Gibraltar to the European
Parliament was in violation of her right to participate in elections
to choose the legislature under Article 3 of Protocol No. 1 to the
Convention. She also alleged a violation of Article 14 of the
Convention (freedom from discrimination in the enjoyment of
Convention rights) on the ground that she was entitled to vote
in European Parliament elections anywhere in the European Union where
she lived except in Gibraltar. Gibraltar, unlike Cayman, is within the
European Union under Article 227(4) of the EEC Treaty by virtue of
being a European Territory for whose external relations Britain
is responsible.

British Citizens are also EU Citizens and it was in respect of the
applicant’s right as an EU citizen (not that she was denied the right
as a British Citizen to vote in Gibraltar parliamentary elections)
that the case arose. Accordingly, the case does not demonstrate
that UK citizens should be entitled to vote in elections to the
Legislative Assembly. A British Citizen who is not a British Overseas
Territories Citizen by virtue of his connection to Cayman and does not
possess Caymanian status is not and should not be entitled to the
right of abode or the right to vote in Cayman general elections by
virtue of that citizenship.   

Graeme Halkerston: I am surprised by the rude tone of
Mr Watler’s reply to my comment.  While tempting, I will not
respond in a similar manner.

I did not refer to the contents of the original Comment because, while
it was interesting, it was legally irrelevant.  A review of
aspirational rights provisions and the laws of sovereign states which
are not contracting parties to the European Convention of Human Rights
has little significance in the context of legal rights and obligations
in the Cayman Islands.

Unlike the matters raised in the Comment, the European Convention of
Human Rights has normative effect in this jurisdiction particularly
given the seismic shift in the Caymanian grundnorm following the 2006
reintroduction of the individual right of petition and the Al-Skeini
judgment in 2007.  I cited Matthews v. UK as it clearly shows
that the Legislative Assembly would be considered a legislature within
the scope of Art. 3 of the First Protocol.  The Aziz decision is
pertinent as, in the eyes of ECHR jurisprudence, the point I raise
considers the status of a UK citizen seeking to vote in a UK
legislature in UK territory.  The domestic distinctions drawn
between citizens under Cypriot law in Aziz were considered
incompatible by the Court.  Arguably so would the Cayman
limitations. 

The Mad Hatter: Mr Watler writes “to stand for office one must
have no other citizenship (see s. 18(2) of the Constitution), and that
it is an entirely reasonable and standard restriction that a candidate
should not owe any allegiance, obedience or adherence to a foreign
power or state.”

Olivaire Watler: I apologise if Mr Halkerston found my tone
rude. It was not intended to be. Instead, I sought to make the point
that the issues Mr Halkerston raised had already been addressed in my
article and that he had made no attempt to address those points. They
are not legally irrelevant. The same remains true for his most recent
contribution.  

The Aziz case pertained to discrimination as to voting rights
as between citizens of the same country on the basis of heritage and
ethnicity and has nothing to do with the situation in Cayman.

If Mr Halkerston is not posturing then he is seriously misled.

Turning to the Mad Hatter, I am really am not sure what point he is
seeking to make since I have already refuted what appeared to be his
point, namely that in Cayman some citizens do not have the right to
run for office.

He states: “However, as far as I am aware, persons with the right to
be Caymanian, who are duly naturalised and have revoked their original
citizenship are not allowed to run for political office in the Cayman
Islands”.

I am not sure how I can be of any greater assistance since I have
already cited the relevant provisions ofthe Constitution, but I will
try.  

The relevant portion of s. 18 states:

“(2) For the purposes of subsection (1)(d) of this section, a
qualified citizen is a British Dependent Territories citizen by virtue
of a connection with the Islands, who either –

(a)   at the date of his nomination for election
possesses no other citizenship and is pursuing no claim to any other
citizenship for which he may be eligible.”

Graeme Halkerston: Aziz is directly on
issue, because, in the field of ECHR jurisprudence, there is no such
thing as Caymanian nationality or citizenship.  Caymanians and
“British” citizens are both British citizens.  Any Court would
take a unitary approach to citizenship.  The United Kingdom,
rather than the Cayman Islands, would be the Respondent
to any ECHR petition.  The premise upon which Mr. Watler’s
argument is grounded is that there is such a legal concept as a
Caymanian citizen or a Caymanian national.   But in the
words of the Privy Council “as a British overseas territory there is
no such thing as [Caymanian] nationality as such: [Caymanians] are
British citizens” (Thompson v. The Bermuda Dental Board
[2008] PC para 36  – I have changed the references from Bermuda
to Cayman but there is no material legal difference).

Olivaire Watler: If Mr Halkerston’s interpretation of
the Privy Council decision in the Thompson case is correct, it
would have far reaching implications not simply in respect of Cayman
and other Overseas Territories, but in respect of Britain itself which
I will explain later.

I do not know whether the issue was fully argued before the Privy
Council but two points are beyond dispute:

1. Until the British Overseas Territories Act 2002 came into
effect Bermudians (as well as Caymanians and other British Dependent
Territories Citizens) were not British Citizens. Instead, we were
simply British Overseas Territories Citizens in respect of
which we did not have a right of abode in the
UK.    

2. Since 2002, Caymanians and Bermudians have possessed two
citizenships: British Overseas Territories Citizenship and
British Citizenship. It is in respect of the former that a right of
abode may arise in the respective Overseas Territory. 

It may be helpful to have a brief historical synopsis of the
citizenship issue. The British Nationality Act 1948 established only
one citizenship – citizenship of the United Kingdom and Colonies –
which gave the same rights to all. However, because of the waves of
immigration from Africa and the Caribbean in the 1950s and 1960s which
threatened “Britishness” in England, the Immigration Act 1971 was
enacted to discriminate as between citizens of the United Kingdom and
Colonies and grant only those who had close connections with the
British Isles (the UK, the Channel Islands and the Isle of Man) right
of abode in the UK. When the UK finally recognized that this could be
successfully challenged on the basis of discrimination as between
citizens, it replaced the 1948 Act with the British Nationality Act
1981 which supplanted one citizenship with unequal rights depending
upon ethnic origin, with four citizenships with separate rights: (1)
British Citizenship (for those with close connections to the British
Isles); (2) British Dependent Territories Citizenship (for those with
close connections to a Dependent Territory); (3) British Overseas
Citizens; and (4) British Subjects. In other words, separate
citizenship with separate rights was fundamental to the 1981 Act.
There was no indication that this was altered by the Overseas
Territories Act. In the 1999 White Paper ‘Partnership for Progress
and Prosperity‘ (which led to that Act) the Overseas Territories
were specifically assured that the offer of rightof abode in the UK
that came with British Citizenship would be on a non-reciprocal
basis.

I find it doubtful that the Thompson case can bear the weight
ascribed to it since it would also have serious implications for
Britain itself. Under Article 8b of the Treaty on European Union, EU
Citizens may vote in European Parliament elections and municipal (i.e.
local government elections) in Member States of which they are not
nationals, but not in national elections. A French
citizen who lives in England can vote for the local County Council but
cannot vote for the MP to the House of Commons. (Note that Cayman does
not have any municipal elections, only elections to the Legislative
Assembly which is our equivalent of the House of Commons).
 Applying the logic that Mr. Halkerston gleaned from the
Thompson case, the Frenchman should be entitled to vote for the
MP in England because he has EU citizenship in common with the Briton.
The UK would therefore be in the position of seeking to enforce a
standard upon Cayman which the UK itself is unwilling to adopt in
respect of fellow EU citizens.   

M. Ebanks: I note with interest the ongoing debate on
this topic. Following my own review on the issue, I write to lend my
support and agreement to Mr. Watler’s point and very thorough
responses.

In particular, Mr. Halkerston’s reading and interpretation of the
Thompson, Matthews and Aziz cases is
difficult to accept given the ratio of those authorities. The
analogies he then seeks to draw to Cayman’s position are even more
untenable given that he clearly concedes that Art. 3 protocol does not
confer an absolute right, either to vote or stand in national
elections.  Consequently, it is wholly acceptable for Cayman
to impose residency and other reasonable restrictions on the right to
vote or stand in elections – based on its own unique circumstances –
and it can do so without falling afoul of the ECHR or other
international human rights conventions as Mr. Halkerston seeks
to suggest.

While Mr. Halkerston or others who do not meet those criteria to vote
or stand in election may wish the residency requirement was 3-5 years
rather than 12 years and so on, the fact remains that the restrictions
imposed by Cayman are within acceptable international norms, since the
right to vote or stand in election is not an absolute right. 
Some may disagree with the criteria Cayman uses, however those
restrictions are reasonable and have a legitimate objective,
including the need to ensure that persons granted the right to
influence the policy and direction of the country hold genuine
allegiance to the interests of the Cayman Islands.

Hinging the application of these cases on a conclusion that
“there is no such thing as a [Caymanian] national” according to the
Johnson case – is as unpalatable and offensive a concept
as Mr. Halkerston seems to find the idea that Caymanians (a proud and
talented people) should seek to protect their own interests rather
than that of the sovereign – and fairly unrealistic and naive.

Mr. Watler is also correct in noting that the United Kingdom extended
British Citizenship on a non-reciprocal basis. So, all United
Kingdom (or commonwealth citizens for that matter) are not
immediately availed of a right to vote or stand in national elections
in overseas territories. Even on the strength of the cases
referred to, this does not mean the United Kingdom is in breach of any
international human rights obligation by allowing its
overseas territories to set a reasonable criteria to confer such
rights on non-citizens. 

Regrettably, the undercurrent to this debate seems to
be resentment and bitterness on the part of United Kingdom residents
who do not yet meet the criteriafor these rights – which they
feel entitled to – whether by dint of the fact that they have been
resident for a significant time or feel offended that they have to
meet any criteria at all, especially when they feel like Cayman
‘belongs’ to the United Kingdom in the first place. Consequently,
they wish to challenge any efforts by Cayman to impose limitations on
rights they otherwise enjoy in the United Kingdom, arguing that
there is a lesser standard or quality being imposed on them in the
overseas territories – when in fact it is not. 

While Cayman is not a sovereign nation, it is entitled to exercise the
same test as the United Kingdom and any other country in the
world – to take account of its own interests, needs and
circumstances when deciding on its national
affairs.  England derogates from certain protocols as it
deems necessary or appropriate for itself.  However, those United
Kingdom nationals who believe Cayman ‘belongs’ to them are not willing
to agree that Cayman should be able to take account of
any interest different to that of the United Kingdom.

Fortunately, the accepted (and proper) view is that Cayman – though
not an independent country, is recognized as a tiny but proud and
talented people, with their own history, cultures and norms which are
capable of protection and consideration in matters of national
interest.   In this particular instance, Cayman has
established certain criteria for the right to vote and stand in
elections for non-citizens – within acceptable international norms.

From my own reading and research, I cannot agree with Mr.
Halkerston’s view that Cayman is susceptible to legal challenge for
the limitations it imposes on a qualified right to vote or stand in
national elections.

It may rankle United Kingdom citizens that on overseas territory that
‘belongs’ to United Kingdom should be allowed to impose limits on
them. But it is legally permissible and within acceptable
international norms – including the same ones
alternately applicable to, referenced by and derogated
from by the United Kingdom.

 

 

 

 

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