Cayman Islands Bar Association responds to Government Leader's comments

Friday, January 30, 2004

GEORGE TOWN, Cayman Islands: The Caymanian Bar Association (CBA) has issued a statement in response to remarks made by the Leader of Government Business, Mr McKeeva Bush, branding as "politically motivated" the CBA's proposal to challenge, by means of Judicial Review, the actions of the Cabinet concerning numerous grants of Caymanian Status (belongership) last year.

The CBA denies as "categorically untrue" any suggestion that the proposal to issue Judicial Review proceedings is a politically motivated threat driven by the former CBA President.

"We seek to impress upon [Mr Bush] that parties who appear to disagree with him do not necessarily reach their position for political motive. Both the decision to seek the opinion of [David Pannick QC] and the decision to proceed with this action were decisions made by the CBA membership," the CBA goes on to say.

An appeal by the CBA for other interested parties to join them and help raise the necessary funds to challenge the Government about the grants of status has since been called a "joke" by Mr Bush.

Mr Bush said there are plenty of people in Cayman who need such money and that what the Bar Association is doing is nothing more than "a political ploy in a political year."

Minister Bush also said the CBA has no right to be doing what it's doing. He said that the Cayman Islands face much bigger and more serious issues. 

The following is the remaining text of the CBA statement:

• the Immigration Review Team spent years designing transitional provisions so that long term residents would all have received permanent rights on the basis of fair criteria applied equally to all applicants. Why then would the Cabinet think it was compelled by Human Rights concerns to clear the "back log" when there were provisions already designed to deal with this issue?; 

• the lack of transparency in the process is inexcusable and has fueled rumours in the community as to the manner in which the Grants were made. This has diminished the respect for which such matters are dealt with in the Cayman Islands; 

• the appearance of "grace and favour" in this community is unseemly and leads to the belief of a lack of equality before the law; 

• the seemingly totally unjustified grants of Status to persons who have been resident for a short period of time is insulting to many Caymanians and long term residents alike; 

• the inability of Cabinet to recognise that the arbitrary manner of granting Status has a destablishing social effect is extremely alarming. 

The CBA's decision has not been made lightly and has not been without disagreement amongst its members. The decision has been made as a last resort. There is no dispute that the Cabinet has the power to make grants of Caymanian Status for "special reasons". The concern of the CBA has been that no applicable "special reasons" have been identified. 

However, despite numerous requests made by CBA and other entities, no confirmation of "special reasons" relevant to the individual recipients of the Caymanian Status have been identified. Nor has it even been confirmed that such reasons were considered. In October 2003, after writing to the Honourable Leader of Government Business and receiving no response, the Council of the CBA called an Extraordinary General Meeting of all of the members. Those in attendance were asked to vote as to whether or not the CBA should obtain a formal legal opinion from a senior lawyer highly experienced in issues of human rights and constitutional law. 

The membership approved this course and an opinion was therefore sought and obtained from David Pannick Q.C. The opinion indicated that absent identifiable special reasons attributable to the individual recipients concerned, the Cabinet may have acted outside of its powers in granting status in the manner which it purported. 

Following receipt of that advice, the CBA, through its attorney, served a "letter before action" on the Attorney General requesting certain information so it could decide how to proceed. Again no response has been forthcoming. 

The law requires the Governor in Cabinet to act within the powers conferred upon them, whether or not the Attorney General is present. Mistakes can be made as appears to have occurred in this instance. It can not be said that in all instances the 2,950 recipients of Caymanian Status are those clearly most deserving of it. What is to become of our jurisdiction if we establish a precedent that it is acceptable for any Government to act outside of the rule of law, when it best suits them? 

The CBA is a non-profit organisation, which has various obligations. Not only is it charged with protecting the character, status and interests of the legal profession generally, and specifically Caymanian lawyers, but also, amongst other objects, must "unceasingly watch over and protect the civil liberties of the Caymanian people" and "take such steps as it may think fit in the protection of the rights of and the furtherance of the interests of the public and the legal profession in the Cayman Islands." 

The public of the Cayman Islands are not only Caymanians. The CBA, a significant number of whose members have received their Caymanian Status from the Immigration Board, is very cognisant of the tremendous contributions made by expatriates, of all nationalities and walks of life, to the success of the Cayman Islands. The CBA is also cognisant of the fact that for both human rights and economic reasons, there is a need to formally incorporate a large number of these expatriates into the Caymanian community, through the acquisition by them of permanent rights to live and work in the Cayman Islands. 

More than perhaps any other sector of the community the members of the CBA are well aware of the human rights shortfalls of the Islands' prior Immigration procedures, as well as the injustice suffered by many members of the expatriate community. In fact, we applaud the Government for its recent wholesale revision of the Immigration Law, which will avoid many of the problems previously encountered. However, given the transition provisions in the new Immigration Law the CBA cannot understand the actions of Cabinet. In the event that the CBA is successful in its application for Judicial Review and the Grants are reversed, all those affected who are long term residents will be entitled to permanent rights under the new Immigration Law. Those that do not qualify will have to wait until they do qualify before applying for permanent rights under the new law. If there are any persons for whom genuine special reasons exist (including their contributions to the Cayman Islands, financial or otherwise), it is still open to the Cabinet to grant such persons status ensuring that in doing so the special reasons are properly recorded. 

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