Archive for May, 2009
Candidates’ qualifications
The one thing which I still remember about Obama’s bid for the presidency, six months after the fact, is the way which he carried himself and the tone that he set for the management of his campaign.
Up until then, those of us who follow politics had grown so accustomed to the mudslinging and finger pointing overtones of political campaigning that it was more a norm than an exception. I am not naïve enough to say that Obama was beyond reproach, but he did manage to bring a level of dignity back to the campaigning process which was sorely lacking from the US presidential race. A level of dignity that, quite frankly, is sorely lacking in the political campaigning process of the Cayman Islands.
It has been over a month since I made a request for the candidates’ qualifications in an effort to better inform myself before taking to the polls on May 20th. To date only three candidates have taken the time to not only respond but also engage in dialogue about their positions and their plans for the country.
No candidate from either of the two parties has actually replied or provided the information requested. The material posted onthe biography section of either party’s website does not actually provide the requested information. As a voter I cannot get a clear idea of the candidates’ formal education and work experience as what little is given on either topic is lost in convoluted and perhaps even irrelevant information such as marital status, number of children and place of worship. Merely being married does not make one a good partner, having children is simply a testament to one’s ability to procreate, and one’s choice of a place of worship only provides a location for where one might be found on a particular day of the week but says nothing about the contents of one’s heart.
A great deal of controversy has been taking up time on our airwaves over the last two weeks in regards to the very question of qualification of some of our candidates. This controversy has illustrated the gap that exists in our system when it comes to the submission and verificationof information on persons running for political office. The question is one of fact, not opinion, and as such it can be verified. One either does or does not hold a degree; one either did or did not work for a particular company or hold a particular post. There should be no play on words, no question of terminology, nor any room for misinformation. I don’t presume to know whose responsibility it should be, but clearly someone should be responsible for ensuring that the electorate is able to access such information.
Contrary to what has been said this information does matter. The people have asked for it and that in and of itself should be a clear indication that this is something that is important.
Do not misunderstand: this is not about limiting the number of persons who can run for office by putting forth a qualifications requirement. It is about understanding what each individual brings to the table so that each of us can choose whom we feel is better equipped to deal with “the real issues”, such as the global economic downturn, which have a direct impact on our daily lives.
It does not *only* take formal education to run this country. Nor does it *only* take work experience. My generation is not a generation of either/or. We want both. Make no mistake about it, things are changing. The days of the feudalistic exchange of a washing machine for a vote may not be over just yet, but they certainly are numbered. This generation expects more. We expect a certain level of intelligence from our representatives, and a truly intelligent person is one who has respect for both formal schooling and the school of life.
Bill of Rights, Freedoms and Responsibilities
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 the Cayman 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. This may 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.
Conclusion
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
LIME keeps elections office in touch
(CNS): Efficient and reliable communications will be a key factor in the forthcoming historic election on Wednesday, which will not only see the country go to vote for a new government in very uncertain times for the Cayman Islands, but will also see the electorate participating in a referendum on a new constitution. As a result, local telecoms provider LIME (formerly Cable & Wireless) has said that it is committed to help keep information flowing during the process.
“This is an important time for our country; not only are elections taking place but also the referendum for the new constitution, which meansthat it is a very busy time for the Elections Office and critical that they are able to stay in touch,” said Country Manager Anthony Ritch. “LIME has donated 50 mobile phones along with credit so that election officials can assist voters with information about polling station locations and also to keep the Elections Office staff in touch with one another across the islands.”
Webb evidence in question
(CNS): The accusation by Elizabeth Webb that Justice Priya Levers had written the infamous ‘Leticia Barton letter’ to Cayman Net News became a key factor during this morning’s hearing when even Timothy Otty, the tribunal’s QC, conceded that Webb’s evidence was contentious. During Justice Levers’ second day on the witness stand the credibility of her former secretary’s evidence was challenged by Levers’ counsel, Stanley Brodie QC, when he noted that were this a criminal proceeding the evidence would have been thrown out, and as a result Otty should not question her on it.
Following some two hours of questioning regarding the hearsay evidence against Levers by some court house staff that she was openly critical of other judges, including Chief Justice Anthony Smellie, Otty turned to the question of the authorship of the letters and told the tribunal that Brodie had raised some concerns.
“Mr Brodie has mentioned that, in light of the evidence, it might be improper to ask any questions about the letter and to put to Justice Levers Ms Webb’s allegations,” said Otty. He explained that what he had wanted to do was raise the apparent coincidence of the views attributed to her by some witnesses and the content of the Leticia Barton letter. He then proposed to get her to reflect on the alleged evidence of this and pointed out that if the tribunal were to consider this evidence as true, in turn Justice Levers’ evidence could not, therefore, be true, illustrating the seriousness of this allegation and the importance of the veracity of the witnesses statement.
Brodie told the tribunal that it seemed to him “so hopelessly unsupported by evidence – indeed the evidence is all to the contrary – that I would have thought it would be improper to make a positive case of that sort to Madam Justice Levers,” he said. Brodie explained that if these were criminal proceedings the Crown would have been forced to discount such evidence. He went on to observe that it was a serious allegation if it were true, but the case would have to be overwhelming. He added that as any questioning of the judge on the matter would impact his closing statement, he would like to know the tribunal’s position on Webb’s statement.
Otty made the case that the goal of the tribunal proceedings was to make inquiry and that no observer, no matter how ill-informed, should be allowed to think anything important was overlooked. Following a few minutes consideration, the tribunal decide to hear Otty’s questions on the letter and Otty then asked Levers her position on each of the points raised in it.
The letter opens with a quote from Lord Bingham and he asked Levers if she was familiar with it at the time, to which she said she was not. Levers then went on to deny that she agreed with the letter and pointed out that where it stated the judiciary was a laughing stock, she herself was a part of that judiciary and hoped to be again. She denied every point put to her by Otty and even noted that the criticisms about judicial entertainment expenses on overseas trips in the letter were probably pointed at her as at the time the chief justice had sent her to London.
Otty then asked, given the evidence of Webb about seeing the letter on Justice Levers’ desk, whether the judge had written it. “I did not write such a letter, I did not call my son or try to give it to Ms Webb to scan,” she said. “I had nothing to do with it.” Again she drew attention to the fact that the criticisms in it would have included her as well as she was still part of the judiciary and she would not write about the judiciary or herself that way.
During the morning’s questioning Otty had probed Levers on courtroom hearsay that she supposedly held beliefs similar to those set out in the letter. However, on each occasions Levers offered a viable alternative to the hearsay accusations or had corroborating evidence for her denials of the alleged conversations taking place. Her private jottings of the day-to-day goings on in and around the court were also put to her as accusations that she harboured resentment or was plotting against the chief justice. She persisted that until her suspension she had no ill-feeling towards anyone at the court and believed she had a cordial relationship with most of them and a very good one with the chief justice. Aside from her fears of Sanderson, which she has noted on a number of occasions, the judge said the hearsay was unfounded.
Her alleged hatred of Canadian staff was undermined when she noted that she had no idea until much later that it was the Canadian court reporters who had gone to the chief justice with the transcripts, and Brodie read out a letter she had written to the chief justice highly commending Valdis Foldats, the Canadian clerk of court, for his work in mid 2007. She noted too that she liked Justice Alex Henderson, but admitted she had criticized the judges for drinking coffee and smoking on the street.
Hearsay accusations from court staff that she had complained about the appointment of Catherine Chesnut to the position of research analyst when she was allegedly not qualified were also brought into doubt when Levers revealed her role in the appointment and that is was she who had sent the request to the civil service for the exemption from advertising the position.
As the morning wore on it was made very clear by both sides that the veracity of Webb’s statement was crucial to the entire proceedings. It was brought into further question when Otty rasied the issue with Justice Levers over the allegations of psychic readings. He asked her who exactly was the card reader who had been referred to by Webb as "Mrs Denno" in Webb’s statement.
“Have you ever met or known anyone called Mrs Denno?” he asked. Justice Levers then told him that she had a relationship with a Mrs Denno who had no family and was in and old age home in Jamaica. She explained she would visit her and take her food. Levers than recalled how the lady would say things such as, "God bless you. You’ll get a bag of grapefruit tomorrow morning from Mandeville."
Levers then said, “‘One day, she said to me when I visited her in Jamaica, she was ill, and I went especially to Jamaica to visit her — I still maintained her until she was sick — and she said to me, ‘You have kidney problems, that is why you have to go back for dialysis,’ I said, ‘Yes.’ She said, ‘Somebody with a red car is going to give you a kidney.’ So I said to Elizabeth Webb when I came back, if none of my children are a suitable match, I am going to let you stand by the window and the first red car you see you are going to run down and stop that and ask the man or woman if they will give me the kidney — and that was the extent of my conversation as far as getting kidneys from red cars were concerned,” she related, to considerable amusement in the room.
Otty then declared he had no further questions on that matter. After finishing his questions regarding the Leticia Barton letter he handed over to Brodie, who merely clarified a few issues with Justice Levers regarding the jottings in her private notebook, which had been submitted in evidence against her but which had been altered by Webb before she took them to the chief justice. He drew Levers’ attention to the note saying, "Betsy rude to me – stop talking."
“What was that about?" he asked. Levers said she thought it was the time when she was dismissive, so she had written it down. “I think that we know that the next two lines were inserted into the document by Mrs Webb,” Brodie added making it clear that Webb had chosen to change the appearance of the note before she sent it on to the chief justice.
“Can you think of any reason why?” Brodie asked inquiring if the judge had authorised Webb to make alterations to her notebook. “No, sir, I did not,” Levers said.
The tribunal was then adjourned until Monday morning, when both Otty and Brodie are expected to offer their final submissions.
Political rival “threatened to kill my wife”
(CNS): Despite the cease and desist letter sent to him from Bodden Town rival candidate Sandra Catron, UDP hopeful Mark Scotland has publicly defended statements made on a radio call-in show last week by his campaign colleague Dwayne Seymour, who said on air that Catron had threatened to kill a woman and had stalked her former boss’s children. While the United Democratic Party has said it will not comment on the matter at this time, Scotland has sent a statement to CNS that Catron once threatened to kill his wife.
Scotland said, “The proof I have that Sandra Catron did in fact threaten to kill my wife is an extract from the Police Incident Logging System (IRB no. 196631) dated 17th June 2003. It states that our housekeeper received a call on May 24th, 2002 from a female who advised her that she was going to kill my wife. It further states that, following investigations by the police Sandra Catron was warned of her actions in the incident and accepted the warning. She also stated ‘I will be moving on with my life and have now put the incident behind me’. The question for Sandra is – if she did not make the threatening call why would she accept the warning and ‘put the incident behind her’?”
Responding to the UDP candidate’s comments, Catron said, “Mark Scotland has demonstrated how desperate he is by pulling out of his archives a police report from almost 8 years ago. The police report stated that his Filipino helper had relayed a message to Cindy Scotland that a threat had been made against her. No one denies that a call was made; but that was NOT the message left. In fact, the police were so dumbfounded with this case that when they spoke to me in 2002 they simply asked me to leave the matter alone at which point I stated that I had already moved past all of that.”
She went on, “It is quite clear that by releasing a barely legible police report and not providing the full details Mr Scotland is being deceptive at best. He has gone about maliciously outright distorting the facts in this matter. For example, in his statement given to CNS he does not divulge that the helper conveyed this message and I never admitted to such a threat. He also does not divulge that neither he nor his wife is in a position to say that I have ever said anything as there was no communication with them.”
Catron said, “In Dwayne Seymour’s on air comments he accused me of stalking Mark’s children – there’s no mention of that in the police report because it never occurred and they did not have “children” at the time. So they continue to add on to the story as it suits them to do so and only strengthen my defamation case even further. What this report states is that a helper received a phone called, incorrectly conveyed a message and Cindy filed a report. The police spoke to me about thematter for about 5 minutes at my residence and that was the end of the matter.”
She added, “Mark’s question about why did I accept the warning – I’m not sure there’s any other response that one can give to a police warning. It’s not an admission of culpability and it’s not a trial or hearing. I thank the officer for her time and that was the extent of it.”
See: Legal action threatened between candidates
Northward escapee charged with two offenses
(CNS): While the prisoner who escaped from HMP Northward last week has been charged and appeared in court today, police said the two prison officers who have been suspended in connection to the escape are being investigated internally. A police spokesperson said that only if the Prison Service found indications of criminal activity would the investigation of the prison officers be turned over to the RCIPS. James Orville Ebanks, who spent four days on the run, has been charged with escaping lawful custody and damage to property. The 47-year-old appeared before the courts today, Friday 15 May.
Ebanks was found to be missing sometime Friday morning 8 May, but was caught and returned to custody Monday evening, 11 May, after being apprehended by prison officers. A full internal prison investigation into the facts surrounding the escape is proceeding as quickly as possible, the Prison Service has said.
The aim of the investigation is to determine what the exact circumstances of the escape were, what disciplinary actions may be warranted as a result, and what new security measures may be required to prevent any repetition of this incident.
Analysis and Review: 2009 draft Constitution
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 www.humanrights.ky.
Priest publishes sex guide
(BBC): A Polish Catholic priest has published a book which provides married couples with a theological and practical guide to spicing up their sex lives. In his book, Sex as you don’t know it: for married couples who love God, Father Ksawery Knotz aims to sweep away the strait-laced attitudes many hold. Sex in marriage, the Franciscan friar explains, should not be boring but "saucy, surprising and fantasy packed". The book, which has the backing of the Polish Catholic Church, has been a hit. The Sw. Pawel publishing house has ordered a reprint after Poles snapped up the first 5,000 copies within weeks of them going on sale.
Final effort to query Constitution
(CNS): Following the rejection of the Equality Cayman’s petition asking the government for a choice in the referendum, the group has now shifted gears and in the final run-up to Election Day on 20 May, it is now focusing on the ‘yes’ or ‘no’ choice on the Referendum on the Draft Constitution. The grassroots organization opposes the proposed Constitution because it says the Bill of Rights included does not protect the people from discrimination. Members of the group will be at various locations around the island over the next few days and will take part in a special edition of “Talk Today” on Radio Cayman the day before elections.
Equality Cayman (EQCI) volunteers will be at Hurley’s Supermarket on Saturday, 16 May, from 8am to 1pm, where they will be encouraging the public to submit questions for the talk show next Tuesday, 19 May. The group will also be on hand at Kirk’s supermarket on Tuesday, from 5pm until 8pm, to encourage voters to voice their views by voting on the referendum when casting their votes for the general election.
In a release, the group says that while its initial objective was to draw attention to the lack of human rights protections included in the new constitution’s Bill of Rights and to ask the government to include the choice for more widespread protection against discrimination in the current draft, it has now taken on the primary focus of helping voters understand the pros and cons of voting yes or no on the referendum ballot on 20 May.
Equality Cayman collected approximately 700 signatures over the course of the three and a half weeks, which it presented to the leader of government business prior to the closing of the Legislative Assembly on 24 March. As they gathered signatures, the group says their volunteers were overwhelmed by the number of petitioners who also voiced concern over their lack of understanding of the document and apprehension over other sections beyond section 16 on non-discrimination.
“The outpouring of support and requests for assistance and information received by the group made it clear that it was necessary to define long term goals to ensure that we could achieve the desire on the part of many Caymanians and residents of our country to ensure that we have a society built on the ideals of fairness and equality,” explains EQCI spokesperson Katrina Jurn.
Those goals will be announced following the referendum given that the outcome of the votes cast is necessary to determine that the organization’s goals resonate with the people’s needs.
Until then, Equality Cayman urges the people of the Cayman Islands to visit their table at Hurley’s Supermarket on Saturday, 16 May, between 8am and 1pm, send their questions to equalitycayman@gmail.com, log on to www.equalitycayman.ky, and tune into Radio Cayman on Tuesday, 19 May, starting at noon to listen to the “Talk Today” discussion on the new draft constitution.
Local lawyer tells UN Cayman remains a colony
(CNS): Speaking at the UN Decolonization Committee’s Caribbean Regional Seminar in Saint Kitts this week, local attorney Sophia Harris said that despite the UK’s attempts to have the Cayman Islands removed from the list of non-self-governing territories (NSGT) the islands’ governance system is still that of an administering power to a colony. “The Cayman Islands has not achieved self-determination, but at best, if the current 2009 draft ‘constitution’ is approved by the electorate in a referendum," she said.
Harris continued, "All we will have is a revised administrative document between the UK and a colony, as opposed to a constitutional document of the people and by the people,” she said.
There has been no education or discussion in the Cayman Islands on the options outlined by the UN for achieving self determination, Harris said. “To date the only surveys conducted that vaguely address any of the options available have focused on the question of independence,” she said, adding that they confirmed that there is no support for that.
She describe the UK’s push for constitutional modernization as increasingly murky waters, but what had become very clear from the latest developments was that every Overseas Territory needed the power to draft their own constitution reflecting the wishes of the people of that jurisdiction, a level playing field and she said that the constitutional revision process must be totally open and transparent.
“It would seem that if, at the very least, these parameters are not set then it will be difficult for the people of the Overseas Territory to have a free hand in drafting a constitution of their own making,” Harris said. She went on to say that Cayman had failed to have any kind of meaningful, unfiltered education on all issues of constitutional governance but instead there was a series of what can best be described as public hearings.
Shesaid that the Cayman NGO Working Group for the constitutional reform had asked the government for information on how it came to make the decisions they made in drafting their proposals for the draft Constitution, but had still not received a response.
“The negotiations with the UK started in October 2008 and concluded in February 2009. The government extended an invitation to the opposition to participate in the negotiation, as was a representative from the Chamber of Commerce, a representative from the association of the churches (the Cayman Islands Ministers Association hereinafter ‘CIMA’), the Seventh-Day Adventist Church (as they are not members of CIMA) and a representative from the Human Rights Committee,” she explained, noting that the NGO Working Group was not invited to participate nor were any submissions sought on their behalf.
Despite calls for open negotiations it did not happen on the orders of the UK, and Harris went on to say that in the end, the 2009 Draft Cayman Islands Constitution is still in fact only a revised administrative document. She also criticised the forced inclusion of a Bill of Rights, saying that if it is passed it could prove to be the most costly experiment the Cayman Islands have ever engaged in.
“There were certain issues that were bound to be controversial including the rights of homosexuals and same sex marriages. The Churches and some NGO’s memberships were clear that they could not support a Bill of Rights that did not protect against same sex marriage. The final round of talks held in the UK seemed to have resulted in a battle of wills between the church and the government on one hand and the Human Rights Committee on the other,” she said, adding this spilled out to the public unaware and regretfully uninformed of the subtleties of the language in dispute.
“Of greater concern for the Cayman Islands is that this episode demonstrated the potential for other problematic issues left unexamined and unexposed in the absence of a major and unbiased education campaign,” she said, adding this was contrary to many relevant UN resolutions on the self-determination process.
“This situation lacks the full debate and information that a complete education campaign would bring in the open to truly enable a final constitutional product reflecting the wishes of the people,” Harris added and said the divide over the bill of rights has resulted in an identification of the constitution with the government of the day.
Criticising the fundamental lack of education on constitutional matters, she described the relationship between the UK and the Cayman Islands as mostly dysfunctional.
“Suffice it to say, however, that we continue to have faith that this committee will be able to make progress in achieving the UN objectives and it is hoped the recommendations made herein might be considered,” she said. “In this day and age, in this new century, it is ever increasingly clear that the people of the Overseas Territories must be provided with assistance to accomplish that right of self-determination which, if it is an inalienable right should, nay must, be attainable albeit ever increasingly elusive,” Harris concluded