Rights needed in absence of laws
One of the arguments raised by the government and others who have supported the limitation of the non-discrimination Section 16 in the proposed Bill of Rights is that other countries have the same limitation and that it is based on the European Convention on Human Rights – but this position is flawed.
The private members motion brought by Rolston Anglin last week, which was thankfully passed, serves to illustrate one of the problems Cayman faces with a limitation clause in its Bill of Rights that other western democracies do not. In most other modern jurisdictions there are literally swathes of legislation on their respective statute books that prevent discrimination and provide the people with a course of redress when they face discrimination from government and even other sectors of the community.
Cayman not only has an as yet unresearched collection of archaic and discriminatory legislation on its books, it has failed to pass laws that protect vulnerable members of the community from discrimination in numerous potential situations.
In his explanation to the Legislative Assembly for bringing his private members bill to the House, Anglin said it came about because of a constituent coming to him and relating the story of how she had tried to cite an absent father who had returned to the island years after fathering her child. The womanwas horrified when she went to court and had her request refused by the judge and was convinced the judge must have made a mistake. Anglin then discovered the 12 month limitation in the law imposed on mothers and, realising the potential ramifications of such a rule, was spurred on to present his motion.
During the debate, Lucille Seymour said she believed there were probably many other laws that were discriminatory and asked the attorney general to start looking. Coupled with the number of archaic laws we could have which allow for discrimination against vulnerable groups, Cayman has passed little or no legislation to prevent discrimination from occurring againstnumerous groups in the community.
The most obvious group is the disabled. Highlighted recently at the Family Life Centre meeting, as well as in recent stories and comments on CNS, there is no legislation that exists on our statute books that prevent discrimination against the likes of Keisha Martin and her seeing eye dog, to give just one example.
While the collective community may or may not buy the churches’ anti-gay stance as justification against a stand alone right, the people must understand that, in the absence of constitutional protection and the absence of legislative protection, women, the disabled, children, the elderly, the poor, the mentally ill and even the uneducated will continue to have to fight against discrimination in incremental steps.
They can hope that legislators will in each case turn to their conscience when, as was the case this week, laws are revealed to be discriminatory, but that is all they have – just hope. Without constitutional rights the vulnerable groups in our community will not be able to force changes in legislation; they will have to campaign and fight each battle as it arises and, as has been revealed by Keisha’s situation, the battle is not always won.
As the election campaign begins in earnest over the coming weeks, it will be interesting to see what legislation is promised by those seeking to gain office. As voters listen to the would-be politicians, it is worth considering how much legislation was promised by those who were elected the last time around and exactly how much has been passed. (Consider for example the minimum wage or the National Conservation bill.)
Those lucky enough to have a vote need to think not only about the motivations politicians have for passing laws but also the timetables and the need for majority support. Although it may seem easy enough to push legislation through the House, it is not always the case as there needs to be a collective will and wide support for every law that makes it to the table.
While this time, in the case of the Affiliation Law amendment, the ayes had it in favour of children, no one can be sure where the ayes will be on pushing through the considerable amount of legislation that Cayman now needs without constitutional protection for its most vulnerable citizens.
Category: Viewpoint
It is so sad that the vast majority of comments on this topic are by that ubiquitos contributor ‘Anonymous’. It is hard for the casual reader to follow the arguments when they are all apparently posted by the same person, who obviously changes opinion almost by the minute.
Isn’t the "highest Court" the same as the "ulitmate court of appeal"? Once one rights are exhausted in the Privy Council one can petition to the European Court and its decisions are binding on public bodies in Convention territories, like Cayman. The Privy Council will construe the Constitution in a manner consistent with ECHR case law.
Wiffle,
I don’t wish to get bogged down in quibbles. My only point was that one does not have to appeal from another court to the European Court. One has a direct right of petition. It is not a court of appeal in that sense.
The Privy Council is obliged to apply the law of the land including the Constitution. It has disagreed with the European court on a number of matters.
Anonymous,
I originally wrote " … the expat community, as a whole, being afforded the same but not better, services offered to Caymanians." From this you have deduced in your last post that I support the view that "…Caymanians should have less rights than expats."
You’ll understand then if I stand by my assertion that your powers of comprehension need work. I really do wish to avoid the expat/Caymanian arguments, so this will be my last post here.
Sounder, on a review I did misread that particular sentence (which is understandable since it does not follow logically from your argument that rights should be determined on the basis of who pays what and expats pay more). However, in view of the full content of my posts that on its own hardly merits the sweeping statement that my comprehension needs a lot of work. The tone reflects the assinine air of superiority that is all too common among expatriates and which does not endear them to Caymanians.
However, back to the real issue, I stand by my statement that you have not demonstrated that you understand the implications of the Bill of Rights.
Anonymous, while it’s difficult, I believe you when you say you don’t hate ex-pats. And believe me when I say that don’t hate Cayman or Caymanians. I love Cayman. That is why it pains me to see its people fight AGAINST basic human rights for all of its residents. I’m not suggesting we all become citizens or don’t pay for our services, but when there is so much hate in the world, a piece of paper that says we all have the right to emergency health care, an education and to be treated with respect regardless of who we are or where we come from, can mean the difference between a life of struggle and a life of means. Some ex-pats workers are treated like slaves in this country but they endure it because of what it enables their families to do back home. These people deserve to be flown off island for emergency treatment every bit as much as a Caymanian or anyone else. These are LIVES after all. And of course there’s a bill that needs to be paid but we live in the richest country in the Caribbean! We can find a way… Let’s all just be a little less selfish.
I can agree to disagree but it makes me sad that when faced with the choice of human rights for all and human rights for some that you so fervently will choose "some".
Judy,
I am not in favour of anyone being mistreated but there are already avenues of redress. Personally, I always endeavour to treat everyone with respect, although I acknowledge that is not shared by everyone. However, Caymanians are also often discriminated against and treated with disrespect in their own country. Unlike the expat, we have nowhere else to go. The only response we get from expats like Mr. Barlow who are supposedly great champions of human rights are justifications for the bad treatment of Caymanians. They are only in favour of human rights if it favours expats, then there can be no possible justification for any discrimination. Similarly, the HRC has been silent on these issues as it pertains to Caymanians but is now suddenly on this campaign. We do have to question its bona fides.
I’m not against basic human rights for all residents. These are provided for in the draft Constitution. A free-standing non-discrimination clause which can have so many unforeseeable consequences is another matter.
Dear "Ex -pat busy" – The Privy Council is not the highest court in this territory, the European Court of Human Rights in Strasbourg is the highest court.
I believe I said "ultimate court of appeal" which is correct. You are right though that one can directly petition the European Court. Since our draft Bill takes the same approach as the European Convention on Human Rights, i.e. it does not have a free-standing non-discrimination right, this should not be much of problem.
Anonymous, the one who thinks I’m insane.
It is symptomatic of Cayman at this point in time that the fear of expats obtaining rights equal to Caymanians in certain circumstances, is used as justification for denying the country a free standing bill of rights. It should be about what Caymanians clearly gain, but you and other prejudiced groups emphasise only what they may possibly loose.
I applaud the HRC for sticking to its principles. Whether they succeed or not, at least some of them come out of this sorry episode with reputations enhanced.
By the way, your writing is OK, but your comprehension could use a lot of work.
My comprehension is just fine, Sounder. It has been proved many times over and I have no need for your approval. On the other hand, it is clear that you do not understand many of the implications of the Bill of Rights.
My posts have presented a legitimate Caymanian perspective with reasoned arguments which you feel you can dismiss with epithets such as "prejudiced". Your perspective is that Caymanians should have less rights than expats. One might equally call that prejudiced.
The HRC is being disingenuous about the implications of the Bill of Rights. In terms of personal reputations, there will be gains and losses depending upon your perspective.
"You are the missing the fundamental point that these are not provided free of cost but are paid for by national health insurance payments and/or direct taxation which are paid for by everyone in developed in countries and which expats do not pay in Cayman."
and nor do Caymanians! infact the taxes used to pay for such things are indirect taxes as Sounder stated, so duty paid on goods, work permit fees, samp duty on documents and Land, etc.
Which both Caymanians and expats pay. Actually as first time Caymanian home buyers get a discount on property, which expats don’t and when you are at the airport and the Expat is busy declaring all their purchased goods and paying duty, while a Caymanian happily greets the Custom guy as old friends while pushing 4 carts packed withcases and boxes, saying "nothing to declare", you could argue Expats pay more, so Cayman benefits hugely from the expat population.
On the other foot as most of the latest over budgets are putting the xountry more in debt, you can argue that it is the Caymanians, and their children (and probably their childrens great grand children) that will have to pay their way out of the current hole, no the expat who will be elsewhere in 7 years or less.
"…Expat is busy declaring all their purchased goods and paying duty, while a Caymanian happily greets the Custom guy as old friends while pushing 4 carts packed with cases and boxes, saying "nothing to declare", you could argue Expats pay more, so Cayman benefits hugely from the expat population".
Oh, so expats are honest and pay their duties while Caymanians are dishonest and evade theirs! If this were a statement by a Caymanian directed against expats there would immediately be cries of "xenophobia!" and "racism!". But for you it is fine to insult your hosts with an absurd statement. This is the sort of double standard that Caymanians endure.
"Doesn’t a subsection of 16 cover the whole Caymanian first thing anyway, so the point of including this in givng everyone half rights, has nothing to do with this and is just scare mongering. So take out the Caymanian fear of losing their preferencial rights (which are enshrined in a sub-section of 16, and so is not even part of this debate)".
Perhaps you should actually read the document, rather than relying upon second hand accounts, before making pronouncements upon it. The protections in Section 16(2) are limited to "entry into or exclusion from, or the employment, engaging in any business or profession, movement or residence within, the Cayman Islands". Note that these have nothing to do with the points I raised. While the language addresses the specific point of the ruling of the Privy Council (yes, the same one that is our ultimate court of appeal) decision in Thompson v. Bermuda Dental Board 2008 one still has to be concerned that the court in that case demonstrated that it was inclined to come up with ingenious interpretations to evade the special protections for Bermudians contained in the Bermuda Human Rights Act to help out a fellow Brit.
I don’t want to get into the usual expat/Caymanian argument, but I would like to address the concept of entitlement expressed in a number of posts here.
One poster is concerned about losing the entitlement to the " right to free education…" amongst other, I am assuming, free rights. The problem with this is that nothing is free. Schools, playing fields, teachers, support staff all have to be paid for. The same is true for just about any service you care to think of. Someone, somewhere, is paying for it. This is true not just in Cayman, but in every country.
In crude terms, entitlement usually falls to anyone belonging, in the widest sense, to the group paying into the general pot. In most countries with normal population distributions, non-citizens make up only a small percentage of the total population and consequently pay little into the pot. If this held true in Cayman, maybe this would be an argument for preferring Caymanians to expats, but Cayman is far from normal on this basis. The CI Economics and Statistics Office produces reports which can be accessed online. The latest, 2007 report indicates that the total population is 54000 in round terms, made up of 32000 Caymanians and 22000 expats. The work force is somewhat different, with the report showing 17406 Caymanians and 17675 expats employed.
No-one in Cayman, neither Caymanians nor expats, pay direct taxes or national insurance contributions, although employers of expats are subject to work permit fees not levied on Caymanians . All pay the various indirect taxes which contribute to Cayman’s revenue sources. Without going into lengthy detail, there is in my view an obvious case for the expat community, as a whole, being afforded the same but not better, services offered to Caymanians, because in the simplest terms, they are paying at least their fair share of the total cost. Perhaps the focus should be less on who is getting what and more on who is paying for what when assessing what is fair..
To address a couple of specific issues raised, the suggestion has been made that a free standing bill of rights will make expats eligible for government assistance in the event of off island medical treatment being required when insurance funds are not available. Given that they have paid into the pot, I would ask why not? The suggestion is that expats shouldn’t need this cover because they have medical insurance. The world is not perfect. Most expat employees will have insurance cover, but some don’t, even though required by law. Given that the requirement to police compliance with the health insurance law falls to government, I would suggest that government accepting responsibility when they fail in their policing duties is not unreasonable.
The point has also been made that no other countries pay for non-citizens to be treated overseas. The writer is missing a fundamental point. Most developed countries have all the medical facilities required to treat any illness or injury. Cayman does not and understandably so given its size. I would suggest that the totality of health care services in Cayman includes both on island treatment when available and off island treatment when essential. Expats have paid their fair share of the cost, why should they be excluded?
The issue here is a free standing bill of rights. Arguing against it based on a fear that it might confer rights to expats which they should in equity have, is a smoke screen.
"Without going into lengthy detail, there is in my view an obvious case for the expat community, as a whole, being afforded the same but not better, services offered to Caymanians, because in thesimplest terms, they are paying at least their fair share of the total cost".
You are clearly insane. Work permit fees are in no way related to provision of free education and healthcare. These are not sufficient even to pay for the cost of the extra administrative burden let alone infrastructural requirements for expats. Let us be clear: Cayman does not exist for the benefit of expatriates, expatriates are here because it benefits Cayman. If instead they become a burden to Cayman then there is no point.
"The point has also been made that no other countries pay for non-citizens to be treated overseas. The writer is missing a fundamental point. Most developed countries have all the medical facilities required to treat any illness or injury. Cayman does not and understandably so given its size".
You are the missing the fundamental point that these are not provided free of cost but are paid for by national health insurance payments and/or direct taxation which are paid for by everyone in developed in countries and which expats do not pay in Cayman.
"The issue here is a free standing bill of rights. Arguing against it based on a fear that it might confer rights to expats which they should in equity have, is a smoke screen".
I believe I have outlined some of the implications of the free-standing non-discrimination clause clearly. There is no case in equity to be made that expats should receive the same benefits as Caymanians. Your attitude of entitlement serves only to underscore the very real dangers I have posited and prove that this is no smoke screen. All Caymanians should wake up and take note.
Is it a culture of being ashamed of the disabled? If not what is it? Why don’t you want disabled Caymanian’s to be free from government discrimination
The disabled and the elderly are covered by Section 16. Hint: they fall under "age, mental or physical disability". They have the same rights as everyone else. Also covered in the Labour Law. Try reading.
Dear Still Anonymous
I am not suggesting that ex-pats deserve to have ALL their emergency expenses covered nor do I dispute your logic regarding mandatory insurance for ex-pats vs a lack thereof for many Caymanians. I also understand that there need to be provisions in place for Caymanians. Scholarships most especially. My point is that it is INHUMANE to say "sorry, we won’t give your twin babies the medical care they need to live because, well, you’re not Caymanian."
Can you honestly say this is right? According to you, "you" (insert your name there) it’s not only right, it’s "insane" to think otherwise! This is what I find disgraceful. And if you think the medical systems in the US or Canada are really all that better you’re wrong. The only difference is that in Canada they won’t turn dying babies away from health care. But evidently they will here and also in the US so I guess that makes it ok… I’d be happy to pay income tax if it meant I was entitled to not have my babies turned away from the hospital. Barack Obama is developing a plan to offer every single American coverage under the same health plan civil servants are under. Perhaps gov.ky needs to consider something like this – not for Jamaican twin babies – but for those Caymanians who simply aren’t covered.
And while we’re here, let’s get another thing straight. People do not come here from other places just to avoid taxes. If I had a good, steady job in Canada I would still be there but I didn’t. It’s hard to find work in a place where thousands of people are fighting for the same position. It’s really hard. And when I came here – not intending to find work I might add – I was offered a job within a week. Not because I wrestled it away from some unsuspecting Caymanian but because there weren’t any Caymanians qualified, experienced or willing to do the job.
People come here to work because there is a NEED for workers. And I think it’s unfair for Caymanians to think that we’re always stealing jobs. It’s not our fault that the island is too small to fulfill the labour requirements. It’s also not our fault that even if every single Caymanian were a qualified to be a lawyer or accountant there still wouldn’t be enough to fill the need.
Ex-pats shouldn’t be made to feel guilty for building lives here either. We contribute to this society too and just because we come from somewhere else doesn’t mean we don’t deserve basic human rights.
Caymanian interests need to be protected – of course they do – but to deny anyone health services or access to education or basic human decency for ANY reason is in my opinion just, well, insane.
Judy,
I respect your opinion, but we will have to agree to disagree. I hope you don’t have the impression that I hate expats. Some of my very best friends are expats, but sometimes I feel we Caymanians are just not being heard or being heard incorrectly.
However, I should make the point, that contrary to what you suggest, the case Jamaican twin babies did not involve turning away dying babies from our hospital. That is absolutely untrue.
Dear Anonymous (insert your name here)
Perhaps my examples were not the greatest in terms of differentiating between "horizontal" & "vertical" rights but I still think it’s safe to say that a "vertical" or government-based constitution is a strong indication of how we should be treating each other "horizontally" – legislation or no legislation. If I feel I’m being discriminated against and there’s no legislation to protect me but there’s a "vertical" constitution supporting my case it’s a strong indication that I’m being discriminated against, no?
I think it’s appalling that people would rather have no rights actually in the constitution for anyone than risk having rights for gay people, cause let’s face it, that’s really what this is about.
And my real point was that it does not limit Caymanian "access" to grants and services. Do ex-pats deserve less education or emergency medical care than Caymanians? How many more people need to die because of the red tape revolving around emergency medical funds. Do you remember the tragedy of the Jamaican twins? How disgraceful! And people were saying that it was someone else’s fault for not having the enough insurance! Ex-pats, women, disabled people, children homosexuals, Christian, non-Christian, EVERYONE deserves to have certain basic rights enshrined in a constitution.
It’s sad that people wish to reserve the right to treat people like S#*T if they want to.
"Do ex-pats deserve less education or emergency medical care than Caymanians? How many more people need to die because of the red tape revolving around emergency medical funds. Do you remember the tragedy of the Jamaican twins? How disgraceful! And people were saying that it was someone else’s fault for not having the enough insurance!"
Judy, this reflects a misplaced sense of entitlement. Allow me to outline why it is entirely justifiable for government to discriminate in favour of Caymanians in these respects:
1. The vast majority of expats in Cayman are either work permit holders or the dependants of work permit holders. The Health Insurance Law requires employers to ensure that their employees are covered by health insurance and employers are required to pay 1/2 that cost. The purpose of health insurance is to cover the costs of medical treatment. Caymanians (who have not come to the Islands for the purpose of work) will have many among their number many who are not able-bodied, not employed and unable to obtain health insurance.
2. Expats are attracted to Cayman because of its tax-free status. They do not pay national health insurance and they do not pay income taxes. Basically they take home what they earn. Yet, ironically, having left a high-tax jurisdiction in favour of a more capitalist society they expect the same, actually even greater, state benefits than they enjoyed in their high tax home jurisdiction. In some of these cases they will receive free or heavily subsidized medical treatment in their home countries if they returned home. I do not know of any other government which would pay for non-citizens to receive emergency medical treatment abroad. It is simply unreasonable, some might say insane, to expect this from the Cayman Islands govt.
3. The citizens that government assists, or their close relatives, are expected to repay government over the long term for the cost expended on their behalf. Essentially, they take on another mortgage. A work permit holder may be here today and gone tomorrow. To whom will the government look for repayment in those cases?
4. Goverment simply cannot afford to pay for the costs of emergency treatment abroad for everyone. The choices are, (1) government goes bankrupt; (2) government ceases to provide assistance to indigent Caymanians in order to ensure equality; (3) government introduces direct taxation to fund these costs. (1) and (2) are obviously unacceptable. No doubt everyone, and particularly expats who came for the express purpose of avoiding taxes, would find (3) equally unacceptable.
So there is nothing at all disgraceful about the current position. Government is not fulfilling a ‘right’ of Caymanians but intervening where necessary as an act of grace. Given its limited capacity to do so, naturally it must first provide a safety net for its own citizens. I know of no civilised society that in the same circumstances would not do the same and I challenge you to prove me wrong. I am personally disgusted with hearing Cayman and Caymanians portrayed as if we are barbarians, xenophobic , etc.. It is malicious slander of an entire people and we have had enough of it.
Anyone who thinks enshrining rights in a constitution is bad for this country needs to consider that one of those elderly, disabled, or homosexual people being abused or ostracized one day could be you or someone you love. How would you feel if you were in an accident and no one would hire you because you had bad burns all over your body? Or if the bus wouldn’t stop to pick you up because the driver didn’t want to deal with your crutches or wheelchair?
Constitutional rights are for the protection of all from the abuse of others. It has NOTHING to do with your right to choose the education of your child, access to scholarships or government assistance! These are all things that are governed by the laws of our country – NOT the constitution. This is why Wendy is arguing that in other countries that have limitations on non-discrimination there are other laws to protect people whereas here in Cayman there aren’t.
So, I think it is YOU that needs to stop confusing the issue!
Thank you once again for thought provoking analysis Wendy.
Judy Singh,
You make an incorrect distinction between those matters to be covered by the laws of the country versus the constitution. Specifically, s. 80 of the Labour Law provides:
No person (whether an employer or an employee) shall discriminate with respect to any person’s hire, promotion, dismissal, tenure, wages, hours or other conditions of employment, by reason of race, colour, creed, sex, pregnancy or any reason connected with pregnancy, age, mental or physical disability (provided their ability to perform the job is not impaired), political belief or the exercise of any rights under this or any other Law".
Further, the rights under the Consitution are intended to be applied vertically in the first instance, not horizontally. So, unless the employer is the government or government is running the bus service your examples are not directly relevant. They become relevant to the relationships between individuals and companies etc. only to the extent that they require legislation to be passed. In respect of employment that legislation is already in place.
Insofar as government discriminates between Caymanians and non-Caymanians with respect to scholarships, government assistance for overseas emergency medical treatment etc. this would indeed be open to challenge under the Constitution particularly if section 16 were a free-standing right or a right to healthcare were introduced. These have everything to do with Constitution, whether you understand that or not.
While the HRC hides behind the term ‘vertical rights’ when for example your right as a landlord to choose whom to rent to are mentioned it does not acknowledge that these vertical rights may require legislation to be passed that causes to them to operate horizontally.
So before you start typing in caps and writing authoritatively you should ensure that you have a full grasp of the issue, which it is clear that you do not.
Wendy, I couldn’t have said it better. I thought it was very surprising to hear these strong comments from the members of our government about the need to sweep the books looking for discriminatory legislation to overturn or amend, or for gaps that need filling, when the perfect opportunity to ensure that this will be done is to make sure the government has an obligation under the constitution to ensure that our laws do not discriminate. The Constitution itself only gives parental rights only to married parents. How discriminatory is that in a country which should be embracing and supporting all kinds of families and ensuring all parents do their part? I noted that the Government also recently promised to pass laws protecting the disabled from legislation. This actually confirms that they can put this protection in the Constitution if they want to. They have themselves recognised that protection for vulnerable groups in Cayman sorely lacking and that successive governments have failed to do anything about it. After recognising that, there is no excuse for not giving vulnerable groups constitutional protection.
Brilliant, thank you Wendy Ledger!
If you think the people of Cayman deserve a chance to choose more rights and more protection from discrimination than is offered in the current draft constitution, then please sign Equality Cayman’s online petition:
http://www.equalitycayman.ky/
What the HRC proposes will bring more harm than good to this country- they are saying that Caymanians are offered protection since what they are proposing is the government can discriminated under "justifiable" circumstances- but there is little that is justifiable in the name of human rights therefore our rights as Caymanians would be severly in danger- our rights to free education for our children, rights to scholarships, rights to government assisted home ownership etc… The HRC is being deceptive, only highligting the relatively little good that will come about for a minority and not saying anything about the potential disasters for our country as a whole. Free standing rights are not for the greater good of this country.
I hope the draft constituion is passed as is on May 20 then the HRC can get to work on the laws that need updating and stop confusing people! I personally am tired of the rhetoric- they need to educate the publc now and stop pushing their personal agenda.