CMA still wants rights as act

(CNS): Stating in a short preamble that the Cayman Islands is a Christian country with a unique culture and history, the government’s draft Bill of Rights is now public, and while the CMA says it addresses some concerns, the church community would still be more comfortable with a separate act that is not enshrined in the constitution. (Left Pastor Al Ebanks)

The Bill, as expected, covers the basic fundamental rights found in most constitutions including the right to life, liberty, freedom from torture and slavery. It also aspires to offer protections to the child and the environment. The Bill sets out the rights to freedom of conscience and expression, protecting religious belief, the right to worship on any day of the week and the right to preach one’s religion.

The Bill defines the right to marriage between a man and a woman only and where it protects people from discrimination it lists race, colour creed, political opinion, religion, age, disability, sex as in gender and place of origin, but not sexual orientation.

The government has said this is a working document and there will be changes to its content before a final Bill is approved, but last week Leader of Government Business Kurt Tibbetts said that the contents of the Bill had been well received by the delegates. CNS has contacted the HRC who have saidthey will offer their opinion shortly; Pastor Al Ebanks, Chair of the CMA, however already told CNS that while he sees it as a genuine attempt to address the concerns of the community it is not a cure all.

“It goes a long way to address some of the concerns but the language used is still important and it doesn’t provide comfort to us in all respects,” he said.

Clause 20 of the document explains that any incompatibility with the Bill in domestic legislation can be interpreted by the courts but not struck down by them and it will be the job of parliament to decide how to remedy incompatibilities. Ebanks notes that while the clause preventing the courts from striking down domestic legislation is important, once a law is seen to be incompatible the Legislature will have to address it as the constitution is still superior to domestic law.

“Lets take the marriage law, the courts may not have the right to strike it down but if a judge points out that it is incompatible then what is parliament going to do?” asked the pastor.

Although Ebanks states that he would still prefer the bill as an act of parliament, he said he did not feel from the talks that the UK would be willing to see that happen.

At the opening of the talks on Monday 29 September, Ian Hendry, the leader of the UK delegation, made it clear that the UK was open to discussion on all issues but a framework to protect the rights of citizens would be fundamental he said.

“We are ready to explore and discuss any proposals the Cayman Islands delegation might advance,” said Hendry. “The United Kingdom has a strong interest in the inclusion of an up-to-date fundamental rights chapter in the Cayman Islands Constitution.”  He referred to Megg Munn’s (Minister for the Overseas Territories) letter of 3 April 2008 to the Leader of Government Business which said the British Government would not agree to a new Cayman Islands Constitution that did not include an up-to-date human rights chapter. 

During last week’s press briefing Hendry said that, while he was aware of the concerns surrounding the Bill of Rights, enshrining it in the constitution was important and he thought the proposed draft was a step forward towards addressing some of the concerns. Hendry also commended the government for having civil representation at the table such as the CMA and the Human Rights Committee, with whom Hendry seemed to find sympathy. He noted that the desire of the HRC to discuss the horizontal application of rights was a sensible one.

However, Pastor Ebanks had concerns regarding that and said CMA wanted to see vertical application only. He felt it would be easy to define what is and what is not a government entity. He said that CMA had found no support in the community for a horizontal application and it was important that the Bill of Rights clearly defined government bodies in the language.

The HRC raised the issue of applying rights horizontally as well as vertically because of the ambiguity of some quasi-government bodies. Charities and Church schools which are private entities still receive government funding but under a vertical application they would not be included in the Bill of Rights and would be free to discriminate.