Letter to the Editor
Setting Mr. Barlow Straight
Dear Sir,
I read with interest (and I confess, someamusement) in Issue Number 35 of your newspaper a letter fromone Mr. Gordon Barlow. The letter was entitled, 'Alienated byCayman's Election Process'.
I must commend you on the insights contained in the Editor's Noteto that letter, which Mr. Barlow would do well to absorb.
The gist of Mr. Barlow's letter was that our elections were nottruly democratic because non-Caymanians, who comprise the majorityof the population, were not allowed to vote. Accordingly, Mr.Barlow argues, our general election was invalid and our LegislativeAssembly illegitimate. As a result, Mr. Barlow feels alienated.
Following this logic, it would appear that Mr. Barlow's next stepwill be to engage in civil disobedience.
Mr. Barlow alleges that a right to vote, which excludes non-citizens,is in breach of international human rights conventions and, accordingly,there will eventually be lawsuits in Cayman for breaches of internationallaw, regardless of our domestic legislation.
Just in case anyone was misled by Mr. Barlow's rhetoric, I thoughtI should endeavour to bring some light to the issue, having contemplatedit as an attorney with a keen interest in these matters and asChairman of the Caymanian Bar Association's Immigration Law ReviewCommittee.
I believe that Mr. Barlow alludes to Article 21 of the UniversalDeclaration of Human Rights which states that:
"Everyone has the right to take part in the government ofhis country, directly or through freely chosen representatives.
"The will of the people shall be the basis of the authorityof government; this shall be expressed in periodic and genuineelections which shall be by universal and equal suffrage and shallbe held by secret vote or by equivalent free voting procedures."
Other international conventions contain similar provisions.
The key to a correct understanding of this declaration lies ingrasping the meaning of "his country", "universalsuffrage" and "the people". The Encyclopedia Britannicahas this to say about universal suffrage:
"The basic qualifications for suffrage are similar everywhere,although there are minor variations from country to country. Usuallyonly the adult citizens of a country are eligible to vote there,the minimum age varying from 18 to 25 years."
On the other hand, Mr. Barlow apparently believes that suffragerefers to all adults who are resident in the Cayman Islands atthe relevant time. Indeed, he invokes "normal internationalstandards" to support this belief.
Quite to the contrary, states commonly confine the right to voteto citizens. The United States of America, generally consideredas a great democracy, does just that. A 'Green Card' will notentitle you to vote in the U.S.
Voting is a political function and thus, only a person formallylinked to the polity through citizenship (in the case of Cayman,British Overseas Territories Citizenship plus Caymanian status)should shape the direction and policies of the state. This isparticularly so here where a large number of non-Caymanian residentsare transient.
It follows that while the right to vote is indeed a fundamentalhuman right, it is a right to vote in your own country - the countryof which you are a citizen. In my view, the Cayman Islands arenot in breach of any international human rights obligations inthis respect.
I am fortified in that view by the U.K. Foreign & CommonwealthOffice Annual Report on Human Rights 2000 and the 1996 UnitedNations International Human Rights Commission Report on HumanRights in the British Overseas Territories, either of which madeno adverse comment on voting rights in these Islands. Nevertheless,it should be borne in mind that international bodies and the BritishGovernment have demonstrated a tendency to 'shift the goal posts'.
There are, of course, certain fundamental rights which apply whereveryou are, whether you are a citizen or not, for example, freedomfrom arbitrary arrest, detention or exile.
I trust, perhaps naively, that this now puts this issue to rest.
Mr. Barlow also makes the misguided assertion that the rightscontained in these international conventions can give rise torights of action in Cayman. International Law can be enforcedonly in international Courts, and in those cases, the right ofaction would lie against the United Kingdom and not the CaymanIslands as we are not a sovereign state.
Further, there will be no right to sue in the Cayman Courts unlessand until these rights are incorporated into our domestic law,either by a law passed by the Legislative Assembly or by Orderin Council of the British Government. (In this regard it wouldbe instructive for Mr. Barlow to read the Judgment of SmellieC.J. in the case of Grant v. The Principal of John A. Cumber PrimarySchool et al).
That is the very reason why the United Kingdom found it necessaryto pass the Human Rights Act 1998, which came fully into forceon 2nd October of this year.
The comparison of the exclusive (with certain exceptions) rightsof Caymanians to vote to Apartheid in South Africa is, of course,silly. But apart from that, it trivializes the suffering enduredby South African Blacks under Apartheid - killings, torture, arrestand detention without trial, the dehumanization of a people -and is a shocking insult to Caymanians who have been Mr. Barlow'sgracious and tolerant hosts.
The differences between the two cases are obvious: native SouthAfricans had an inherent right to be represented in their owncountry; the minority in South Africa possessed both the economicand political power; and the native South Africans did not enterinto their situation by choice.
Choice is the key. Everyone arriving in these Islands on workpermit understands that he can have no legitimate expectationof permanent rights but nevertheless chooses to come on that basis.Having arrived, some people, like Mr. Barlow, then set about totry to change the very rules to which they have agreed. Giventhat choice, it is puzzling, indeed, why anyone would continueto remain where he feels alienated and unwelcome.
That being said, the Caymanian Bar Association and I do favourthe award of permanent residence, with an unrestricted right towork, to those persons who have been resident in the Islands forat least 20 years and are of good character.
Those who have been resident for less than 20 years should, inaddition, have to establish their commitment to Cayman (applyingappropriate indicia) to receive a similar award.
I believe there are many such persons whose commitment deservesto be rewarded and I would bet that they feel neither alienatednor unwelcome.
Yours for a better Cayman,
Olivaire Watler
Attorney-at-law
George Town