Continuing the series of comparisons between sections of our proposed Cayman Islands Bill and the corresponding Articles of the Convention.

Comparing the Cayman Islands draft Bill of Rights, freedoms and responsibilities with the European Convention on Human Rights. (13)

The remaining sections of CI BRFR do not correspond with any of the main ECHR Articles but are sometimes reflected by Protocols.


Comment on
CI BRFR Section 23 Declaration of Incompatibility

CI BRFR Section 23 provides an essential key to the working of this part of the constitution. Courts are not allowed in Canadian fashion to strike down or change the plain meaning of laws. Any incompatibility of a Cayman Islands law that is perceived “in any legal proceedings” must result in the court making a declaration of incompatibility and explaining it. The law, however, would remain fully in force, unless and until the Legislature remedies the incompatibility. The Legislature is obliged under this section to “decide how to remedy the incompatibility.”


Declaration of incompatibility

CI BRFR Section 23.-

(1) If in any legal proceedings primary legislation is found to be incompatible with this Part, the court must make a declaration recording that the legislation is incompatible with the relevant section or sections of the Bill of Rights and the nature of that incompatibility.

(2) A declaration of incompatibility made under subsection (1) shall not constitute repugnancy to this Order and shall not affect the continuation in force and operation of the legislation or section or sections in question.

(3) In the event of a declaration of incompatibility made under subsection (1), the Legislature shall decide how to remedy the incompatibility.


Comment on
CI BRFR Section 24 Duty on public officials

CI BRFR Section 24 outlines the duty of public officials when they are in circumstances of making decisions that could be incompatible with CI BRFR, either not by, or by, the authorization of primary legislation.


Duty on public officials

CI BRFR Section 24. It is unlawful for a public official to make a decision or to act in a way that is incompatible with the Bill of Rights unless the public official is required or authorised to do so by primary legislation, in which case the legislation shall be declared incompatible with the Bill of Rights and the nature of that incompatibility shall be specified.


Comment on
CI BRFR Section 25 Interpretive Obligation

CI BRFR Section 25 provides that if there is some ambiguity of primary or subordinate legislation affecting its compatibility with CI BRFR, it must “so far as it is possible to do so” be read and given effect in a way that is compatible. It should be noted that this leeway is only given in a case of ambiguity of meaning, not when the plain meaning of the law is perceived to be incompatible.


Interpretive obligation

CI BRFR Section 25. In any case where the compatibility of primary or subordinate legislation with the Bill of Rights is unclear or ambiguous, such legislation must, so far as it is possible to do so, be read and given effect in a way which is compatible with the rights set out in this Part.


Comment on
CI BRFR Section 26 Enforcement of rights and freedoms

CI BRFR Section 26 provides for appeals by persons or by courts of the Cayman Islands to the Grand Court in respect of any governmental action threatening or breaching rights and freedoms under CI BRFR, or in the case of courts, in respect of any issues of interpretation of CI BRFR, and appeals for further determination as necessary are also provided for.


Enforcement of rights and freedoms

CI BRFR Section 26.-

(1) Any person may apply to the Grand Court to claim that government has breached or threatened his or her rights and freedoms under the Bill of Rights and the Grand Court shall determine such an application fairly and within a reasonable time.

(2) If, in any proceedings in any court established in the Cayman Islands other than the Grand Court or the Court of Appeal, any issue arises as to the interpretation of the Bill of Rights, the court in which the question has arisen shall refer the question to the Grand Court if it is in its opinion necessary for the issue to be determined.

(3) An appeal shall lie as of right to the Court of Appeal from any final determination of any issue by the Grand Court under the Bill of Rights, and an appeal shall lie as of right from the Court of Appeal to Her Majesty in Council; but no appeal shall lie from a determination by the Grand Court under this section dismissing an application on the ground that it is frivolous or vexatious.

(4) Proceedings under subsection (1) shall be commenced within one year of the decision or act that is claimed to breach the Bill of Rights, or from the date on which such decision or act could reasonably have been known to the complainant; but the Grand Court shall extend time on application by the complainant where such an extension would in the opinion of the Court be in the interests of justice.

(5) Nothing in this section adversely affects the ability of courts to manage their own procedure to ensure that cases are dealt with justly, fairly and expeditiously, including their ability to dismiss applications that are vexatious or unreasonable.