Archive for February 11th, 2009

HRC says let voters choose

(CNS): The Human Rights Committee (HRC) is beginning a campaign to persuade government to allow voters to choose whether the right to non-discrimination should be a free standing right as originally proposed in the draft constitution or the limited right as it now sits in the new document. Following the final round of constitutional talks, the committee said that the compromised bill of rights, which came out of the second round of talks, does not guarantee equality for all. The desire to prevent equality to gay and lesbian people has also placed many other groups,  such as the disabled, women and children, at risk, said the HRC.

“At the heart of every valuable constitution or bill of rights throughout history, there has been the principle that all persons are equal and entitled to equal treatment before the law. The draft Cayman Constitution has abandoned that idea,” the committee said. As a result it is seeking support from the community to show government that voters want to make the choice themselves as to whether the non-discrimination right in Section 16 should stand alone or apply only within the confines of the bill of rights, and that it should be presented as a choice during the May referendum.

The HRC explained that the original Section 16 of the draft Bill of Rights statedthat the government should not discriminate against anyone at any time. “The right to equality was originally included as a ‘free-standing’ right and applied in all areas of daily life, including healthcare, housing and employment. This meant that it could not be restricted and made to apply only to certain rights and not to others,” the committee added.

However, before the second round of constitutional negotiations, the government changed Section 16 because it said the Cayman Ministers Association (CMA) and the Seventh Day Adventists (SDA) were concerned about conferring rights on gays and lesbians.

The HRC said that the change was accepted by the UK government because they were told that the majority of the Caymanian people are not ready for full equality. However, the committee explained that, as a result of that decision, the Constitution does not protect anyone from discrimination by the government in relation to healthcare, housing, employment, access to public spaces, the provision of social services or anything else which is not listed as a specific right in the Bill of Rights.

“Anyone who is the victim of discrimination in these other areas has no constitutional remedy against the government. There would be no free-standing right to equal treatment by the government,” the HRC pointed out.

During the final round of talks in London, HRC chair Sarah Collins presented a strong argument on why it would be folly to allow the compromised non-discrimination section in the bill of rights, not least because of government’s persistent failure to address very serious human rights abuses that already occur in the Cayman community.

“A number of the HRC’s reports and recommendations highlight the potential for serious human rights violations to go unchecked in the Cayman Islands,” Collins stated. She added that there were inefficiencies in the current framework for addressing HR violations and that it was not wise to leave this within the hands of government in the absence of a clear constitutional framework.

“For over ten years, if not more, female members of the Legislative Assembly of the Cayman Islands have been asking for the extension of the Convention for the Elimination of Discrimination Against Women,” Collins said, adding that while government has now said it intends to develop legislation for its implementation there is no good reason why it has taken so long.

“The fact that the women and girls of our country have waited this long for a human rights instrument that will give them the ability to protect themselves from discrimination, without any legitimate explanation for the delay and the lack of urgency in dealing with the matter, demonstrates the absence of any sense of priority on the part of successive governments to protecting residents of the Cayman Islands from discrimination,” Collins stated.

She also used the example of the treatment of juvenile offenders to further illustrate the inadequacies of government in addressing very fundamental human rights abuses. She said the HRC had identified in a report given to government a significant number of human rights concerns arising out of the detention of children, including girls as young as 13 years old, at HMP Fairbanks, which is an adult facility.

“The detention of children pending trial, the lack of access to legal advice at or before trial or at sentencing, the imprisonment of children in an adult facility and the severe lack of appropriate facilities for juveniles accused of crimes, were all areasaddressed in this report.”

Collins explained that the issues gave rise to prima facie breaches of numerous international instruments and while the report was published in early 2007, the HRC has still not received a substantive response from or on behalf of the government, despite repeated requests. She also said that the Children’s Law which was passed in 2003 is still awaiting enabling legislation six years later and the government has again not responded to HRC requests regarding the delay.

Collins listed a number of issues regarding discrimination where the government had simply failed to act and said that the HRC had a legitimate concern that unless non-discrimination was a stand alone right, the Cayman people were vulnerable to government continuing to practice discrimination against them.

The committee lamented the fact that the change to Section 16 meant that government is now also at liberty to pass further legislation that could be discriminatory.  In its campaign statement it revealed examples of what could happen if Section 16 is confined to applying only to the bill of rights and not everyday life.

“A disabled person could not compel the government to put in wheelchair ramps or handrails to allow access to public buildings or facilities, including schools, a  woman or a native Caymanian will be unable to compel the government to pass equal pay legislation, and men could not compel the government to introduce paternity leave or other equal employment rights,” the committee said, noting that a gay or lesbian person could be denied healthcare by the Health Services Authority and government could refuse to hire a Caymanian as a tour guide because his  ‘accent’ is too difficult for tourists to understand.

“The government could discriminate in relation to government housing on any basis, even your race or colour, and there would be no obligation for the government to ensure equal or fair treatment for mentally ill persons, children, the elderly and a range of other vulnerable groups,” the HRC added. “We are asking the government to include the two alternative versions of Section 16 in the referendum and allow people to choose for themselves, rather than taking that choice away from us.”

The HRC said the people should be able to choose between the original Section 16 (free standing right) or the new Section 16 (right to equality limited to the Bill of Rights) and they are asking people to sign a petition that will be presented to government.

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Governor:Constitution to encourage good governance

(CNS): Speaking for this first time publically about his view of the proposed constitution the Governor Stuart Jack has said the new document reflects the needs and values of the Cayman Islands and forms a solid, workable basis for the relationship between it and the United Kingdom. “I believe it will extend democracy and promote good governance,” he said.

The final constitutional document arrived in Cayman today, 12 February and was presented to the Legislative Assembly the document is expected to be available to the public online later today. This final document comes out of the final round of talks with the UK and has been agreed by all the stakeholders with the exception of the Human Rights Committee that have pointed out a significant flaw with the bill of rights.

However with backing from the UK, the opposition, Government, the Chamber and the churches, the protestations of the HRC have fallen on deaf ears.

The Governor also said that the bill of rights was an acceptable compromise.  

“It will give added protection to ordinary members of the public, for example in respect of the treatment they get from the police and the courts,” the Governor said.

“There will be an independent Human Rights Commission that will monitor human rights in a local context. In areas which the Bill of Rights does not explicitly cover it will be for the Legislative Assembly, in other words the elected representatives of the people of these islands, to decide whether and in what form further rights should be set out in law.”

He said he hoped that the elected government and legislators would take action to strengthen the protection of women and children as legislation was outstanding for far too long.

“I hope they will go ahead with plans to provide better arrangements for young offenders, though I recognise that this requires resources and may therefore not be achievable immediately,” the Governor added.

Commending the overall document and the work that had gone into it he said that it would give the people of the Cayman Islands a greater say over international relations, government finances, the police and judiciary.

He noted that his office would now have to consult the elected leader and other who will be known as the Premier and other elected officials on a larger range of issues.

He said several new bodies composed mainly of local people will provide stronger checks and balances while the legitimate interests of the UK and its international obligations would be safeguarded.

He said he particularly welcomes the National Security Council which will be chaired by the Governor and composed of the Premier, two other elected Ministers, the Leader of the Opposition and two representatives of civic society as well as the Deputy Governor, the Attorney General and the Commissioner of Police.

“The Governor will normally be expected to follow its advice on policy matters. But the wide membership and the exclusion from its remit of operational and staffing matters mean that the police will not be subject to undue political interference. That means, for example, that the Police Commissioner, not politicians, will continue to decide which police officer does which job,” the Governor said.

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