Bill of Rights, Freedoms and Responsibilities

| 16/05/2009

Part I of the Draft Constitution aims to implement in the Cayman Islands a Bill of Rights, Freedoms and Responsibilities. There are no comparable provisions in the current Cayman Islands (Constitution) Order 1972 (as amended).

Section 1 of the Bill of Rights provides that: (i) it recognises the distinct history, culture, Christian values and socio-economic framework of the Cayman Islands and affirms the rule of law and the democratic values of human dignity, equality and freedom; (ii) confirms or creates responsibilities of the Government and corresponding rights of every person against the Government; and (iii) does not affect, directly or indirectly, rights against anyone other than the Government except as expressly stated.

The purpose of the Bill of Rights is to regulate the relationship between the Government and the people of the Cayman Islands. If the Government of the Cayman Islands infringes a right of an individual as contained in the Bill of Rights, that individual would have recourse to the Courts of theCayman Islands against the Government.

Commencement of the Draft Constitution

Following the 20 May 2009 general elections, if the referendum and the elected Government are in favour of the Draft Constitution, the Draft Constitution would need to be issued as an Order by Her Majesty in Council before coming into effect. The Bill of Rights, save certain sections, would not come into effect until three (3) years after the Draft Constitution is brought into force. Further, the provision dealing with the segregation of juvenile prisoners from adult prisoners, for example, would not come into effect until four (4) years after the commencement date of the Draft Constitution.

Subject to Her Majesty’s reserved powers, the Draft Constitution (if it is brought into effect), may not be further amended without the authorisation of a referendum, unless such change is declared by the Premier and the Leader of the Opposition to be minor or uncontroversial, in which case a resolution of Parliament would be sufficient.

Treatment of Rights

The Bill of Rights may be broken down into three (3) categories:
1. Absolute rights – these rights are not limited in any way (e.g., section 3 torture and inhuman treatment);
2 Limited rights – there are a few exceptions to these rights (e.g., section 5 personal liberty); and
3 Qualified rights – the Government would be able to deprive a person of these rights in special circumstances. The deprivation of such rights must, however, be proportionate to the aims pursued (e.g., section 12 assembly and association).

Aside from absolute rights, all other rights must be balanced against factors such as, for example, the rights of other persons, public safety, public morality and other interests of the community as a whole. Below is a list of certain important rights contained in the Bill of Rights. It should be noted that sections 2 to 20 of the Bill of Rights are intended to incorporate the European Convention on Human Rights ("ECHR") into the Draft Constitution.

Personal Liberty (Section 5)

No person shall be deprived by Government of liberty and security of the person. This right is, however, subject to certain exceptions which include lawful arrest and detention.
Previous working drafts contained an obligation on law enforcement officers to inform a person arrested or detained of their right to remain silent. The Draft Constitution, however, does not impose such obligation on law enforcement officers.

At common law, under the ‘Judges’ Rules’ (which were given statutory force in the Evidence Law (2007 Revision)), a caution of the right to remain silent is required to be given to suspects upon arrest. However, because this requirement is not absolute, a Judge has a discretion as to whether to admit evidence where no caution was administered and may direct a jury to draw an adverse inference from silence in certain limited circumstances. An absolute Constitutional obligation to inform a person of this right may have removed this discretion so that any confession would be automatically inadmissible, even though it was voluntarily given since such person was not first informed of their right to remain silent.

The fact that the requirement to administer a caution is not enshrined in the Draft Constitution as an absolute obligation would not impinge upon the presumption of innocence, or negate the constitutional right to remain silent or the express provision in the Evidence Law (2007 Revision) for a caution to be administered under the ‘Judges’ Rules’ (until such time as they are replaced by the Grand Court Rules)

Conscience and religion (Section 10)

No person shall be hindered by Government in the enjoyment of his or her freedom of conscience. Freedom of conscience includes freedom of thought, religion or religious denomination. Unless a person has consented, or in the case of a minor, his or her parent or guardian has consented, this right would protect the child from being forced to receive religious instruction or attend any religious ceremony that relates to a religion other than his or her own.

There is some concern in the community that this right may restrict the teaching of Christian religious education in public schools. Alternately, some may argue that other religious courses may also need to be taught otherwise children who are not of the Christian faith (which may need to be proven) would simply opt out of the usual Christian religious education classes. It should be noted, however, that this right allows for schools that are affiliated with a specific religion to continue to teach their religious principles to children of that specific faith, regardless of whether or not the school is in receipt of Government funding. Schools and community educational institutions would be allowed to impose requirements on employment, admission or courses of study necessary to maintain the school’s religious beliefs, subject to the employment laws in force. The Government may deprive a person of this right if it is necessary to do so in the interests of defence, public safety, public order, public morality or publichealth.

Non-Discrimination (Section 16)

This right would provide a person with protection from discrimination by the Government, in relation to all other rights provided for under the Bill of Rights. To enforce such rights, a person would need to prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Bill of Rights, for example a child’s right to education (as discussed in more detail below).

The Draft Constitution provides that "no law or decision of any public official shall contravene this section if it has an objective and reasonable justification and is reasonably proportionate to its aim in the interests of defence, public safety, public order, public morality or public health." For example, the Government may discriminate if it can be reasonably and objectively justified.

The present section 16 does not recognise any ‘free-standing’ right of equal treatment. It should be noted, however, that non-discrimination rights in other countries are rarely absolute and generally subject to qualifications. The United Kingdom, for example, has itself never accepted a ‘free standing’ right to non-discrimination since the equivalent clause in the ECHR is not free standing.

It has been contended that because this right is not free-standing, it offers no protection against discrimination by Government in relation to matters not set out in the Bill of Rights, e.g., discrimination in relation to social and economic areas such as health care, provision of services, housing and employment.

It should be noted, however, that the Bill of Rights does not apply solely to Caymanians but applies to everyone, regardless of nationality. If a free standing right of non-discrimination was provided for under the Draft Constitution, it may potentially eliminate preferences for Caymanians, e.g., in respect of financial assistance from social services, tertiary education scholarships, reduced stamp duty rates and exemption for first time home buyers. This stands in contrast to those areas in which preferences for Caymanians are expressly preserved, for example employment and engaging in any business or profession.

Education (Section 20)

Every child has the right to an education. This positive right would obligate the Government to, within available resources, provide primary and secondary education to every child. This right, however, does not automatically guarantee free primary and secondary education once the Bill of Rights comes into force.

This right is not limited to Caymanian children. Presently, non-Caymanian children are required to pay a fee to attend public schools. Thismay result in the elimination of the preference in placement given to Caymanian children and/or the elimination of such fees charged to non-Caymanian children. Parents would still have the right to educate their child in a private school, at their own expense. As well, parents would have the right to ensure that the teaching provided by such a school respects their religious beliefs.

Enforcement of rights and freedoms (Section 26)

Any person may apply to the Grand Court to claim that the Government has breached or threatened their rights and freedoms under the Bill of Rights. An appeal lies as of right to the Court of Appeal from any final determination of any issue by the Grand Court, and from the Court of Appeal to the Privy Council provided an application is not frivolous or vexatious. Proceedings must commence within one year of the decision or act that is claimed to breach the Bill of Rights, or from the date by which such decision or act could reasonably have been known to the complainant.

As a first resort, rather than apply to the Court, an individual may lodge a complaint with the Human Rights Commission which is empowered to give advice, investigate such complaints and bring conciliation between the parties, but may not adjudicate on complaints.


The Draft Constitution refers to the Bill of Rights as a cornerstone of democracy in the Cayman Islands. The Bill of Rights is, however, somewhat complex and has many interconnected provisions, some of which have attracted considerable debate. While not addressing all aspects of the Bill of Rights, this article has sought to summarise certain important rights and consider potential implications of such rights if brought into force in the Cayman Islands under the Draft Constitution.


This is the fourth in a series of articles prepared by the Caymanian Bar Association to consider the implications of various aspects of the proposed Cayman Islands Constitution Order 2009 (the 2009 Draft Constitution) that is to be the subject of Cayman’s first referendum vote on 20 May 2009.

See also:

Branches of Government: Existing and Proposed

New offices and commissions

Greater accountability or road to independence?

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  1. Anonymous says:

    "…negate the constitutional right to remain silent or the express provision in the Evidence Law"

    i thought local law cannot contradict the constitution. if the right of silence is not in there, how can it appear in legislation? and then cant it just be amended whenever government felt like?

    • Anonymous says:

      The provision for a caution in the Evidence Law does not contradict the draft Constitution. They are compatible provisions.  There are many rights which do not appear in the draft Bill of Rights. It does not mean that they will have ceased to exist or have been eroded, only that they will not be constitutionally protected. It is correct that legislation may be amended by the legislature. 

  2. Anonymous says:

    Interesting. Finally a credible legal group has challenged the HRC’s analysis of the Bill of Rights (and the HRC is made up of atleast 4 Caymanian attorneys).

    Yet other Caymanian attorneys (Sophia Harris most recently and Truman Bodden) back the HRC’s position against the draft Constitution.

    Pretty hard to make heads or tails of all of this!
    Watching lawyers fight makes my head spin!!

    • Anonymous says:

      The HRC, Truman Bodden and Sophie Harris oppose the draft Constitution for completely opposite reasons. Mr. Bodden wants only small amendments to the presentConstitution as he cherishes the rule of mother England, while Ms. Harris does not think it goes far enough as she yearns for self-determination and a ‘real’ Constitution.  The HRC wants more ‘goodies’ in the Bill of Rights, while Mr Bodden doesn’t want a Bill of Rights at alland Ms. Harris is ultra cautious about the great ‘experiment’.