HRC wants horizontal rights

(CNS): As the Non-Governmental Organisations (NGOs) set out their positions at the opening of the constitutional talks with the United Kingdom Foreign and Commonwealth Office,  the Human Rights Committee (HRC) has said it wants to see consideration of human rights applied horizontally (placing duties on individuals, corporations, and other private actors) as well as vertically (running solely between individuals and the state). 

HRC member Melanie McLaughlin spelled out the argument over why rights should not just be limited to government and citizen: “The current proposals seek vertical application of rights only. However, the HRC believes that direct horizontal application to private bodies should also be considered at a later stage for Cayman, in order to develop a full human rights culture,” she said on Monday, as constitutional discussions began.

Explaining that indirect horizontal application of rights willlikely flow through the obligation of the legislature to consider human-rights principles when passing new laws, including those which affect private businesses and individuals, she said considerable care would have to be taken with the definition of “government” to which the bill of rights would apply, particularly in relation to quasi-public bodies, associations and entities which receive government funding.

“The HRC therefore believes that the Cayman Islands would benefit from clearly addressing the issue of horizontal application of rights in its Constitution,” she added. “This is one of the deficits in many Commonwealth Caribbean constitutions and is currently under consideration as part of the reform process in a number of these jurisdictions. It is most sensible for this issue to be properly addressed for Cayman to learn from those experiences.”

The issue of human rights applying horizontally and being superior to domestic legislation has been at the centre of the concerns raised by churches and religious representatives. Throughout the education process, the government has persistently stated that the rights would not extend horizontally. The Cayman Ministers’ Association said in its opening statement, made by Pastor Al Ebanks, that it supported the principle of rights being applied vertically only and wanted to see the bill of rights as separate legislation, not enshrined in the constitution itself.

“The CMA is aware from communications with our government and through the local media that the Foreign and Commonwealth Office has instructed the Cayman Islands government that the British government would not agree to a new Cayman Islands Constitution that did not include an up-to-date human rights chapter. We would be extremely disappointed if this position is maintained, as there is strong and growing local support for a separate law,” said Pastor Ebanks. “It appears that if the UK denied us this option from the beginning of the negotiations, the UK would be infringing upon our human rights.”

By contrast, the HRC stated that it supported the inclusion of a bill of rights enshrined in the constitution rather than in ordinary legislation, which could be amended or repealed more easily by the legislature, leading to the possibility that rights could be changed after each election. McLaughlin said that as Cayman does have a written constitution, direct enforcement by the local courts is an available option for the Cayman Islands.

“However, the Government’s proposal is for the courts to only be able to make a ‘declaration of incompatibility’ that a law conflicts with the constitution and the legislature be left to amend the offending law. The disadvantage to this method is that enforcement of our ‘rights’ will be left to the vagaries of the political process,” she noted. “The HRC would prefer direct enforcement of rights by the courts.”

She also spelled out the HRC’s support for the rights to fair trial, to privacy, to freedom of conscience and religion, and the right not to be discriminated against on the basis of race, creed, colour or gender, among others. While agreeing with the right to define marriage as between a man and a woman, she also said if the principle of equality is to be recognised, there should not be discrimination against other types of legal union which may eventually be recognised in Cayman law.

“Any civil rights, such as healthcare benefits or inheritance, to be granted to any form of legal union to be recognised under Cayman law will remain a matter for the legislature, but should not be discriminatory,” she added.

The Mission of the Seventh-Day Adventists reiterated its position that they wished to see the wording of a bill of rights before committing its support to enshrining it in the constitution, and as the Leader of Government Business, Kurt Tibbetts, had circulated a draft of the bill on the morning of the talks, Pastor Shian O’Connor said the mission would study that before offering its thoughts.

The Chamber of Commerce said that its membership supports the concept of a human rights bill enshrined in the Constitution. However, Chamber CEO Wil Pineau spelled out the need for more education.

“While the Constitutional Secretariat’s office did an outstanding job reaching out to the community to discuss many of these issues, we believe that the education process should continue following the conclusion of the constitutional talks. Issues such as whether or not to include a Bill of Rights in the Constitution, Human Rights generally and the United Nations options for Self Determination require in depth discussion and debate,” he said. “The United Kingdom has grappled with the introduction of its Human Rights Act for more than 5 years – and we believe that a similar national education programme is required in our community and we look forward to receiving the support of the United Kingdom in this regard.”