Analysis and Review: 2009 draft Constitution

| 15/05/2009

As part of the HRC’s ongoing obligation to advise the people of the Cayman Islands in relation to our human rights obligations, the HRC makes the following comments on the draft Constitution, which is being put forward for approval by referendum on 20 May 2009.

Positive proposals for human rights under the draft Constitution:

Introduction of constitutional human rights and responsibilities: The existing 1972 Constitution does not include any human rights at all. The new draft Constitution includes a Bill of Rights for all people in the Cayman Islands, which protects certain basic human rights, such as the right to life, freedom of religion and conscience, privacy.

Enshrined Bill of Rights: By having the Bill of Rights directly included in the draft Constitution, it gives the best level of protection for human rights to our people (rather than having the Bill of Rights as an ordinary law which can be more easily changed).

Scope of human rights: The HRC is pleased to have been able to successfully negotiate for the inclusion of definitive rights for the protection of children (section 17) and an aspirational right of environment (section 18) in the Bill of Rights.

Children’s rights: The draft Bill of Rights now recognizes the right of all children in the Cayman Islands to important matters necessary for their healthy development, including rights to basic nutrition and health care, to be protected from abuse and neglect and the right not to be detained except as a matter of last resort. This is particularly relevant to Cayman, which currently incarcerates minors in adult prisons, in breach of various international human rights treaties extended to Cayman.

Environmental rights: The draft Bill of Rights also importantly establishes an aspirational right to protection of the environment. Our Islands’ natural resources, wildlife and sea biodiversity are critical to our heritage as well as our economy. Although an aspirational right does not create a binding obligation, the inclusion of such a right of environment in the Bill of Rights signifies a pledge by government to always consider the environmental impact of all government decisions or actions.

Human Rights Commission established: The draft Constitution also usefully establishes several institutions which will serve to promote democracy, including a Human Rights Commission (section 116). The new Human Rights Commission will be charged with “promoting understanding and observance of human rights in the Cayman Islands.” In this regard, the new Commission will have a similar mandate and role as the existing HRC, which it will replace. The Commission will receive and investigate complaints and human rights issues and may issue reports but will not have any quasi-judicial powers of enforcement. The Commission will also work to educate the public on human rights.

Areas where the protection of human rights could have been improved under the draft Constitution:

Language and drafting: The first and perhaps most important difficulty with the draft Constitution is the overly complicated language and the lawyer-like way in which it says everything. It is difficult for all of us to understand exactly what the Bill of Rights covers, what it leaves out and what our rights actually are.

Delay in relation to youth offenders: The draft Constitution regrettably, will still allow ongoing human rights abuses of children to continue indefinitely, in particular those in conflict with the law. The HRC is concerned about the agreement to delay the implementation of section 6(3) for four years after the Constitution comes into effect. This section requires the Government to separate children in custody from adult prisoners and to treat the juveniles in a manner appropriate to their age and legal status. The current practice in Cayman of incarcerating youth offenders (including girls as young as 13) at adult prisons, violates Cayman’s international human rights obligations.

The right to silence reduced: The Bill of Rights has removed a person’s right to be told of their right to remain silent on arrest under section 5(3). This is a significant inroad to the presumption of innocence after a person has been arrested and will allow the courts to assume that you are guilty if you remain silent after being arrested. Consequently, the draft Constitution no longer includes a right for a person to be informed of their right to silent when arrested. There is now greater scope for abuse by police in seeking improper confessions. In most instances, the accused will not have legal representation during questioning – but by remaining silent, the court can assume they are guilty of a crime in certain circumstances.

Right of non-discrimination limited: Section 16(1) of draft Constitution proposes only a limited right of non-discrimination for everyone in Cayman. The HRC has previously outlined its grave concerns in relation to the approach taken in respect of section 16(1) of the draft Constitution. The draft provides that everyone should have the right not be discriminated against by the Government in a limited way i.e. the Bill of Rights will be applied without discrimination. However, it was not agreed that the right not to be discriminated against would apply to any other area where behaviour of the Government could affect citizens and residents. The reason put forward for refusing to agree this was that, because it was felt that some groups should not have this protection, it could not therefore be offered to anyone at all.

This leaves no constitutional remedy for unjustifiable discrimination by the Government against anyone in a number of important areas of everyday life. Accordingly, the Government could discriminate against anyone in any matter not listed in the Bill of Rights, including: Healthcare; Access to public spaces for disabled persons; Employment with government; Government housing; And many others.

Parental rights to children limited to spouses: While the draft Constitution sets out the parental rights to married couples under section 14(4), there is no mention of the rights of unmarried parents. Unmarried parents’ rights will continue to be set out in local legislation and/or the common law, both of which are less than satisfactory for various reasons.

Aspirational Rights: Throughout the constitutional negotiations, the HRC advocated for the inclusion of a number of important aspirational social rights, which the country will strive to give all of its people. Although aspirational rights of education and environment were included, the draft Constitution unfortunately does not include aspirational rights of healthcare or housing, which are particularly relevant to Cayman.

This statement was issued on behalf of the Human Rights Committee. Although appointed by Cabinet, we function as an independent body. Our terms of reference and more information on the work of the HRC can be viewed at

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  1. Anonymous says:

    In response to a previous poster: ""There is no reason to suppose that our disabled children are not getting quality education. The lighthouse school is one of the best of its kind in the Caribbean region. "

    I strongly suggest you visit Maples House, Hospice Care, Sunrise Center or Lighthouse School and actually speak to family members who have disabled children! You are delberately naive on the facts so you can ease your conscience – Caymandoes not do right by its disabled or its elderly!

    Your answer conveniently only referred to the quality of EDUCATION for disabled – but do not appear to consider any other areas of life – particularly healthcare or access to facilities and spaces to ensure our dsiabled lead as full lives as possible, or even work if their disability does not prevent it! Your section 16 allows government to discriminate in both healthcare and employment, access to space.

    Narrow-minded bigots like you really piss me off!

    And stop saying that government can pass a law so it dont need to be in the constitution spiel. Why are the vulnerable people who we know need protection the most, being left out of the constitution? 

    With all the disabled people we have in Cayman (we even have our own mental retardation disease ‘Cayman Ataxia Maxa’ for Christs’ sake!) no government has seen fit to bother to pass ANY disability legislation. So what assurance is it for that government could or might pass a law at some date, whenever they frigging feel like or when it is politically convenient for the politicians?

    Give me a break! You are one poor, miguided fool.




    • Anonymous says:

      Narrow-minded bigot, why is it that liberals feel to the need to demonize every one who does not agree with them? What makes you think that I have not visited these places and don’t know people who attend there?

      The Bill of Rights is not the panacea you (receiving the HRC’s propaganda) believe it to be. it will not increase govt’s revenue or eliminate other priorities. You need to get off your high horse. 

  2. Yo Mama says:

    A previous post stated: “People denied healthcare because they are gay? Where are you writing from? Not in Cayman, apparently. The draft constitution would specifically protect everybody from such discrimination.”

    That’s funny. Apparently the clueless poster is not aware that a prominent Caymanian preacher involved in constitutional negotiations specifically said we needed a watered down bill of rights so that the hospital would not be forced to offer counseling to gay people.

    Where are you writing from? Must not be Cayman.

  3. Yo Mama says:

    It’s so tragic to see people arguing against rights and protections FOR THEMSELVES.

    This entire process has been a textbook case of how people can go against their own best interests when blinded by prejudice and misled by preachers.

    So sad.

    If this pathetic daft draft is approved, chalk up another victory for religion. And one more loss for humanity.

    To the drones who vote yes, when you are discriminated against because of your color or your gender, don’t scream, "I got my rights!"

    No you don’t "got your rights". All you got is a joke of a bill of rights that does little more than try to "keep Cayman safe from gays".






  4. Anonymous says:

    I will vote against it.

  5. Roy Tatum says:

     How hard is it to understand that: 

    1. The present constitution contains no Bill of Rights.  The draft constitution does.
    2. Nothing in the present constitution guarantees healthcare for anyone.
    3. Nothing in the present constitution speaks to sports funding for either sex.
    4. Nothing in the present constitution speaks to persons with disabilities.  The draft constitution does.

    How hard is it to understand that one can find fault with anything if one wishes.  The fact is that the draft constitution has things missing that are important to me but I also know that overall it provides greater protection for us against Government & the UK; it provides Caymanians with more say in our affairs; helps protect our economy; it provides for key committees to ensure good governance and to keep corruption in check; provides for term limits for the premiere; rights for children; allows people initiated referendum; and so much more.

    It is a better Constitution than the one we have today.  It takes nothing away from us and gives us much.

    I am reminded of the story of the dog who received  a bone from  butcher.  He picked it up happy for the treat; then whilst passing a pond he looked in and spotted a reflection of a ‘dog with a bone’ – wanting both bones he grabbed at the reflection and lost the bone he had in his mouth.  The moral is obvious – in seeking perfection we may end up with nothing.

    On election day lets do the right thing – vote for a better Constitution that the one we have today – vote for a Constitution with a Bill of Rights rather than staying with an ancient Constitution with no rights guaranteed.

    Vote YES on the referendum.


  6. Anonymous says:

    Read the CBA’s articles for some objectivity.The point on right to silence is just plain wrong. The right to silence would be enhanced not reduced by the draft Constitution. I guess there are no criminal defence lawyers on the HRC.

    You are quite misinformed. The HRC has some of the best and brightest legal minds in Cayman, including criminal defence practitioners: Sara, Melanie, Andre, James Austin Smith, Anthony Akinwumi.

    The right to silence was amended on the last day of negotiations, without any debate. So the police no longer have to tell you that you have the right to remain silent if you’re arrested. This is less of a right than exists at present – so it is certainly not an "enhancement" by any stretch of the imagination.

    • Anonymous says:

      "So the police no longer have to tell you that you have the right to remain silent if you’re arrested. This is less of a right than exists at present – so it is certainly not an "enhancement" by any stretch of the imagination".

      That is plainly not the case. For so long as the relevant provision in the Evidence Law exists, the police will be required to give a caution. The draft Constitution, if implemented, would not change that since the requirement for a caution is perfectly compatible with the right to silence.  This is self-evident from the fact that you wanted both included in the Bill of Rights. What is enhanced is the right to silence which would be a constitutionally protected right and not simply a common law right as it is presently.  

      There is absolutely no basis for the assertion that enshrining the right to silence (as the draft Constitution does) would somehow reverse the presumption of innocence.

      You are overstating your case which really is that the requirement to give a caution would not  be constitutionally mandated and therefore could be removed by legislation.  

  7. Anonymous says:

    How hard is it to understand that the point about section 16 affects everyone?

    Healthcare on the same terms for young people as well as old people. Does that seem fair and reasonable?

    Government should ensure that young girls in Cayman have the same funding for their sporting activities as boys. Does that sound fair and reasonable?

    An obligation to ensure equal treatment in employment under legislation for disabled people. Does that sound fair and reasonable?

    Government to make sure special needs children get quality   education – at least as good as the opportunities for other children. Does that sound fair and reasonable?

    Ready to give all that up so gay people can be denied healthcare when our government feels like it? Seriously?

    A proper right to be treated equally  and fairly benefits everyone.


    • Anonymous says:

      "How hard is it to understand that the point about section 16 affects everyone?"

      Section 16 already benefits everyone. There is no reason to suppose that our disabled children are not getting quality education. The lighthouse school is one of the best of its kind in the Caribbean region. The right to education is a right under the Constitution therefore section 16 applies to it already.

      Re old people, that fact is that government often discriminates in their favour. What a free-standing right could do is permit young people to challenge that. You see, sometimes it is right to discriminate.

      HRC, you have distracted the people long enough with this section 16 nonsense. Please give it a rest so that people can digest the rest of the draft Constitution. 

    • Anonymous says:

      These issues "How hard is it to understand …" can much better be dealt with by legislation by particular subject. Clearly there would be significant costs involved in setting up the monitoring bodies ("quangos") for which we would all have to pay, if having it in the constitution forced all these things upon the society willy-nilly.

      Healthcare: at the moment all children get free healthcare (Caymanianand non-Caymanian). So now you are saying everyone must get free healthcare, because children get it.

      Who will pay?

      Sports funding: how far are you going to take equality here? Are girls to be funded equally in cricket and football as boys? Are boys to be funded equally in netball as girls? Just for political correctness? Do we have to have this in the constitution and waste thousands of dollars? Why not make these matters a question of sound policy decisions by sports and government administrators? Common sense, surely.

      Equal treatment in employment: again, with all the bureaucracy involved in running an economy loaded with work permits, what is this extra layer going to cost? Are you going to set pre-set percentages for how many disabled work in a particular occupation? I am all for helping those who need special help to be employed, but surely this can more sensibly be handled than having it blindly enforced in a constitution, which cannot "see" the particular needs of a particular business or occupation.

      Education for special needs children. That’s already covered by the draft constitution as it stands.

      People denied healthcare because they are gay? Where are you writing from? Not in Cayman, apparently. The draft constitution would specifically protect everybody from such discrimination.

      Vote No to this person’s mad utopia. Vote Yes for the new Constituton.


      • Anonymous says:

        Why is this article entitled Analysis and Review: the 2009 Draft Constitution, but is only about the Bill of Rights?

  8. Anonymous says:

    Read the CBA’s articles for some objectivity.The point on right to silence is just plain wrong. The right to silence would be enhanced not reduced by the draft Constitution. I guess there are no criminal defence lawyers on the HRC.

  9. Anonymous says:

    None of these are deal-breakers to me. I will be supporting the constitution.

  10. Anonymous says:

    I will be voting in favour of the draft constitution. we do not need to revisit this after all this time and money, just to make changes to benefit homosexuals just so Cayman can be "politically correct".

    Sometimes government has to be able to discriminate for the good of society!

    • Anonymous says:

      I will also be voting in favour of the constitution.  The following points might be noted:

      The Bill of Rights, Freedoms and Responsibilities does not discriminate generally against any group, including those claiming the homosexual label. What it does is prevent an automatic assumption that homosexual partnerships are to be regarded as equivalent in status to marriage.

      The Bill does not allow discrimination against the disabled either. Section 19 of the Bill makes that very clear – therefore the effect of confining non-discrimination to the rights conferred by the Bill of Rights does not in any way disadvantage disabled people.

      If non-discrimination were freestanding it would be like the society signing away its resources with a blank cheque: nobody would know what "rights" could be claimed until every particular claim were adjudicated in court, including the supposed right to same-sex marriage and civil partnerships, having homosexual material published for schoolchildren, having all scholarships confined to Caymanians made equally available to all, etc etc.,

      If non-discrimination were freestanding, it might even be possible in certain circumstances for persons charged with offences to sue the government because other persons of different categories were not charged.

      Be wise, Cayman!   This is an excellent document. Nail it while you can!



  11. Anonymous says:

    6 points for 6 against: where does that leave us in deciding??