HRC seeks to clarify interim position

(CNS): Although the Bill of Rights enshrined in the Cayman Islands Constitution 2009 will not come into effect until November 2012, the Human Rights Commission has already been created under another part of the Constitution, which was enshrined last year. As a result, HRC chair Richard Coles says that the commission has sought advice about its powers during this interim period. Speaking to CNS this week, Coles said the commission wanted to clarify the unusual position it found itself, in that it had been “given life by the Constitution” but the Bill of Rights is not yet part of the law.

The chair said the HRC has contacted Professor Jeffery Jowell, who assisted in the development of the Constitution, in the hope that he would be able to better clarify how the commission could begin protecting rights before the bill is enforced.

Recognising that there was considerable work ahead for the HRC, Coles, a former attorney general, told CNS that he was relishing the opportunity to be involved with the development of the commission as it was not often that one was given the chance to be at the very start of something so important.

With the HRC already established and until the situation was clarified, Coles said members could focus on examining existing laws and noting any problems with them, raising awareness and starting on the education campaign. Despite the fact that its powers were not yet clear, the HRC at the very least could draw attention to potential or current human rights abuses that will need to be addressed before the Bill of Rights is in place.

Acknowledging there were a number of topical issues related to human rights questions, Coles added that there were a number of things the commission would be keeping a close eye on. Asked about the changes to the legal aid system, Cole said the HRC would not be concerned with the way the funding was managed or administered but that all those facing the courts were adequately represented.

“The concern of the HRC is that every accused person has a fair trial and is represented by competent attorneys throughout,” Coles said, adding that if the present review was causing uncertainty and problems with representation, the commission would make that known. “We expressed concerns to the committee which reviewed the legal aid about the need for representation for all; how it is administered is not our concern, so long as it accomplishes the goal of fair representation.”

When asked about the case of a man who was acquitted of murder in October of last year but who has since been re-arrested and is currently facing the possibility of being tried again for the same crime, Coles noted it was inappropriate to talk about specific cases but said the HRC may want to review the Court of Appeal Law. He said that the question of double jeopardy was a human rights issue but the law in this regard, on the surface of it, did not appear to run contrary to the Bill of Rights.

Section 7 (4) indicates that a person cannot be tried again for an offence from which they have been acquitted, “… save on the order of a superior court…”

Coles said that aside from examining the country’s laws for compatibility with the Bill of Rights, the commission could also use the interim period to promote awareness of human rights and he acknowledged there was considerable work to do. Coles said there was “genuine fear and apprehension” that the Bill of Rights might affect the way of life in the Cayman Islands.

“This is really fear of the unknown. and although human rights are not new to Cayman. it is the first time they have been enforceable through the courts,” Coles said, adding that in the past people had been able to take cases to the European Court but it was a complex and time consuming process. The first and only case from the Cayman Islands was recently ruled on by the ECHR, which found that a convicted murderer had not been denied his right to a fair trial.

The HRC intended, Coles explained, to embark on a major education campaign, which included visiting schools and exploring many other ways that would offer the opportunity to educate the community about the benefits of the Bill of Rights and not see it as a threat.

Coles also noted that the HRC would be striving to be as transparent as possible, and while it would not be appropriate to hold meetings in public because of the confidentiality of the cases likely to come before it, the commission had agreed they would be publishing the minutes of the meetings on the Commission’s website, which was currently being created.  

The chair explained that confidential information could then be redacted before the minutes were posted, protecting privacy when necessary but also allowing full transparency of the HRC’s work. The website would become an important tool in the goal of both transparency and education for the HRC, he added.

As the body that will seek to educate, promote and uphold the rights enshrined in the Constitution, Coles said it was not the only body that could campaign for specific rights. He said there was room in the community for social and grass roots activist groups that could promote and campaign for specific rights under the Constitution as well as the need to enhance them where necessary.

“We will promote human rights but there is scope for other bodies to lobby for particular rights and some sections of Cayman society may be better placed than the commission to campaign on specific rights issues, which could then be brought to the HRC,” Coles added.

The Bill of Rights which is now enshrined inthe Constitution will come into effect in November 2012, three years after the 2009 Constitution was adopted. Between now and then, all of the laws in the Cayman Islands willneed to made compatible and a number of issues will also need to be addressed by government, from how young offenders are imprisoned and the enactment of some from of environmental protection law.