Statement by the Attorney General, the Hon. Samuel Bulgin, QC, JP

Coming into Effect of Bill of Rights

On Tuesday, 6 November 2012, the Bill of Rights, Freedoms and Responsibilities, as mandated by the Cayman Islands Constitution Order 2009, comes into effect.

Before this domestic provision takes effect, the Cayman Islands was covered by the Rights and Freedoms guaranteed by the European Convention on Human Rights (“ECHR”), which were not justiciable in the Cayman Islands’ Courts.

The “Bill of Rights” recognizes the distinct history, culture, Christian values and socio-economic framework of the Cayman Islands, and is an affirmation of the rule of law and democratic values of human dignity, equality and freedom.

Significantly, the Bill of Rights will serve to confirm and, in some cases, create certain responsibilities for the Government (the State) and guarantee that these rights are enforceable against the Government.

A Bill of Rights enshrined in a Constitution signifies that the Government has accepted the legal obligations to secure the basic human rights for all persons within the Islands.

Additionally, any person, who alleges that the government (comprising public officials) has breached or threatened to breach his or her rights and freedoms, will now be able to bring a claim against the government in the Grand Court that could culminate in a legally binding and enforceable judgment.

This means legal action brought by persons aggrieved by the violation of their rights and freedoms can now be dealt with in the local courts, which will be able to grant certain remedies in appropriate cases.

Going forward, there are certain basic imperatives that we must all bear in mind. These include:

I.         The Courts’ role will continue to be that of guardian of human rights and  will therefore be called upon to decide/adjudicate on controversial matters arising out of the Bill of Rights;

II.         There will be limits to the scope and legitimacy of Executive and Legislative decision-making, and in this regard, we should bear in mind that executive expediency and the rule of law may not always be allies;

III.         Although the Executive, Legislature and the Courts have different functions, it is fundamentally important that an independent judiciary, served by an independent legal profession, is charged with the responsibility of interpreting and applying the constitution, consistent with the rule of law.

IV.         In considering any alleged interference with some rights and freedoms, a court will have to deliberate:

–       whether the government’s action or attempted action is a sufficiently important objective to justify limiting a particular right or freedom;

–       whether the measures, by which the government seeks to meet the objective, are  properly connected to the particular right or freedom; and

–       whether the means used by the government match the intended objective.

As we celebrate this momentous occasion, it is also important to bear in mind that a Bill of Rights does have certain important restrictions. This is expected in any democratic society where rights do carry with them duties and responsibilities.

By way of examples, freedom of expression does not allow persons the right to willfully make defamatory statements about others. Freedom of movement does not permit the unlawful trespassing on another’s premises, while freedom of assembly does not give the right to unlawfully block a public thoroughfare to the inconvenience of others.

The limitations are necessary for balancing the interests of various rights against the interest of    public order, safety, morality etc. The question will be whether restrictions on the rights and freedoms are proportionate and or reasonably justifiable in a democratic society.

The advent of a Bill of Rights is an important milestone in the constitutional and democratic development of these islands, of which all should be understandably proud. Yet some of the challenges and rulings from the courts, at times, will be perceived as challenging or threatening deeply rooted and strongly held cultural assumptions, and will therefore be unpopular.

A domestic Bill of Rights enforceable in our local courts is the dawn of a new era and will require a degree of recalibration and readjustment by all, but more so our public officials.  It may be seen as daunting but we should all show a willingness to embrace it. It is, ultimately, about a just and fair society for all.