AG says human rights was key legal issue for 2012

(CNS): The significance of the implementation of the Bill of Rights in the country’s constitution was described by the attorney general (AG) as “one of the most significant events of last year” from a legal standpoint, when he moved the motion for the opening of the Court Wednesday. As the man charged with defending any action under the bill on behalf of government, the AG, Sam Bulgin, said it was incumbent on the legal profession to help those with claims access the courts to have such “alleged transgressions adjudicated”, as he predicted challenges ahead for the profession and government. But it was the issue of press freedom that the AG focused on rather than the workload increases his office could see as a result of the enforcement of the Bill of Rights.

He did state, however, that the judiciary had already taken steps to put in place the framework to facilitate the filing of claims and he said his chambers had conducted extensive training in preparation. The AG also said that departments such as the Royal Cayman Islands Police Service (RCIPS) and Immigration have undertaken general as well as targeted training.

“For the first time in the legal history of these Islands, claimants are now entitled to file a claim in these courts where they are alleging that there is a breach of his or her human rights, and the courts are now empowered to adjudicate on such claims and to grant direct relief where a claim is made out,” he said. “This is not an insignificant development in our legal history. It will not be too long before the benefit of such a facility will start to manifest itself.”

Despite the wide implications for government, and in particular the potential for justice to be delayedas a result of problems on the government side, the attorney general decided to focus on the local media.

Court space problems and on-going issues with the prosecutor’s office, including allegations from defence attorneys of mounting disclosure problems, communication issues, poorly worded indictments and charges, all of which are leading to significant delays in the course of justice, confounded by the problems finding legal aid attorneys to represent some of the defendants accused of serious crimes, means the first human rights challenges are very likely to come from those incarcerated while awaiting trial.

Nevertheless, in his court opening presentation Bulgin offered his observations on freedom of expression, including the freedom to hold, receive and impart, as contemplated by section 11 of the Bill of the Rights, and the need for a press association.

“Unlike a lot of countries in the world, Cayman can boast about the fact that we have a free press,” he said, as he offered his support for that. However, he added that, as the Bill of Rights further underpins the freedom of the press, there was going to be additional challenges “for our friends in the media,” and pointed to the Leveson report and the recommendations in the UK.

The Leveson Inquiry was commissioned in the fallout of the News International phone hacking scandal, in which the phones of celebrities and even victims of horrendous crimes were hacked into by the tabloid news organisation. Although nothing of that kind has ever come close to happening in Cayman's local media, Bulgin encouraged the press to consider a formal association underpinned by a comprehensive written code of conduct, which included a self-regulating framework and a complaints procedure. He said this would offer three benefits.

“One is that whenever they seek to speak out on challenges or issues facing them they do so from a position of strength, not as individual entities, but as a body, a press association,” the country’s leading attorney stated. “Secondly, and of equal significance, is that it is not always the case that every time that someone is alleging that they have been unfairly treated by the press, that they wish to resort to taking legal action. Neither does the press relish the situation where it must always have to go to court to demonstrate that they acted fairly and within the boundaries of acceptable journalism.

“Accordingly, a properly drafted and promulgated code of conduct setting out the guidelines, which inform how the press carries out its affairs, including a well-developed grievance procedure for those crying foul, would go a long way to preventing aggrieved persons from having to resort to the court and all the expenses for both sides associated with such a claim,” Bulgin added.

The AG suggested that there should be some medium, short of court proceedings, to have complaints addressed or adjudicated upon. He also spoke about some members of the media being confused about the sub judice laws, which limit free speech and comment on cases progressing through the courts.

Historically, Cayman’s local press has found it difficult to create an association as attempts have been thwarted by the more powerful and entrenched media houses, unwillingness to work with certain people.

Discussions are ongoing, however, and CNS reporters have also taken steps to join the National Union of Journalists in the UK in an effort to seek some protection from the mounting covert as well as overt efforts to undermine the local press, despite its tame position compared to other jurisdictions.

“While everyone in the press welcomes the idea of a set of standards for members to agree to work by, the goal of the authorities in Cayman to have some form of association for the media is more often than not motivated by a desire to have a body to bash,” said Wendy Ledger on behalf of CNS. “The publichas seen time and time again how some politicians and others in authority deal with the media, despite the fact that, by comparison to the UK, the US and other democracies, the local media is very reserved."

“However, the continued efforts to undermine what we do is a very real problem and we feel that the local press needs some form of protection from the authorities and certainly not the other way around,” she added.

Ledger pointed out that when it comes to complaints, most media houses deal directly and competently with those they receive and when issues cannot be amicably resolved, which is extremely rare, the public is well aware that people can and do take legal action. It is important that any threats to the press are carried out under the public gaze, which is what happens when law suits are filed, she said.

“Media houses or reporters who persistently get things wrong are soon punished, in any event, as every day the press is exposed to public opinion. If the media gets it wrong, its readership falls, and with it its revenue. When it comes to CNS, our 65,000 readers are more than capable of keeping us in line,” Ledger added.

The media took its fair share of battering from the former premier during his time at the helm of government and his attacks have been particularly public and overt.

However, Ledger said that there had been more covert efforts from others in authority that are actually more concerning. Efforts to make reporting on certain key public events such as the Legislative Assembly more difficult, battles with freedom of information requests, poor and untimely responses from government departments, as well as a failure to answer media enquiries at all, combine to make the work of the local press, which has very limited resources in most cases, very difficult, she noted.