The experience of being present for the recent constitutional negotiations between the Cayman Islands delegation and the United Kingdom delegation was a learning experience: those who may have contributed a little could learn much.

I have learnt how much of our Bill of Rights, Freedoms and Responsibilities (RFR) is directly comparable with the provisions of the European Convention on Human Rights.

As the recent material advertised by the Constitutional Modernisation Secretariat indicates, the Bill of RFR is basically an acceptance into our local law of the rights declared by the Convention, which first came into effect in Europe in 1950. Our Bill was also fashioned specifically with the Cayman Islands and its distinctives in mind – as this series of articles will show.

I hope you all enjoy this series of comparisons between many of the sections of our proposed Cayman Islands Bill of Rights, Freedoms and Responsibilities and the corresponding Articles of the Convention. My comments – in italics- are for the most part quite brief, and I hope you find them informative and perhaps thought provoking.

Comparing the Cayman Islands draft Bill of Rights, freedoms and responsibitlies with the European Convention on Human Rights (1)

Section 1 Guarantee of Rights, Freedoms and Responsibilities and Article 1- respecting rights

Section 1 describes carefully the scope of the Cayman Islands Bill of Rights, Freedoms and Responsibilities (CI BRFR), specifically its recognition of Cayman distinctives, including history, heritage and Christian aspirations and values, as well as generally recognised democratic values, and defines it by the boundaries of the responsibilities of the government and the corresponding rights of persons against only the government.

Article 1 of the European Convention on Human Rights (ECHR) is simply a formal statement binding the signatory states to the other Articles of the ECHR.

Guarantee of Rights, Freedoms and Responsibilities

CI BRFR 1.-(1) This Bill of Rights, Freedoms and Responsibilities is a cornerstone of democracy in the Cayman Islands.

(2) This Part of the Constitution –

(a) recognises the distinct history, culture, Christian values and socio-economic framework of the Cayman Islands and it affirms the rule of law and the democratic values of human dignity, equality and freedom;

(b) confirms or creates certain responsibilities of the government and corresponding rights of every person against the government; and

(c) does not affect, directly or indirectly, rights against anyone other than the government except as expressly stated.

(3) In this Part “government” shall include public officials (as defined in section 28) and the Legislature, but shall not include the courts (except in respect of sections 5, 7, 19 and 23 to 27 inclusive).

ECHR ARTICLE 1
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Section 2 Life and Article 2– Right to life
Section 2 is taken verbatim for the most part from Article 2 of the ECHR, but unlike ECHR Article 2 does not provide for an exception for lawful execution (capital punishment). This exemption in Article 2 has been restricted subsequently by Protocols 6 and 13 for parties signed up to them. CI BRFR Section 2 does, however, provide an exception for death as a result of a “lawful act of war” – the equivalent of which is provided by the ECHR through the derogations provided in Article 15.

Life
CI BRFR 2. - (1) Everyone’s right to life shall be protected by law.

(2) No person shall intentionally be deprived of his or her life.

(3) A person shall not be regarded as having been deprived of his or her life in contravention of this section if he or she dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is absolutely necessary –

(a) for the defence of any person from violence;
(b)in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c)for the purpose of suppressing a riot, insurrection or mutiny; or if he or she dies as a result of a lawful act of war.

ECHR Article 2 – Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.