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SCHEDULE 2 continued PART I continued
19.—(1) All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.
(2) Every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act.
20.—(1) This section is without prejudice to section 10.
(2) Government shall seek reasonably to achieve the progressive realisation, within available resources, of providing every child with primary and secondary education which shall, subject to subsection (3), be free.
(3) Every person who is the parent or legal guardian of a child shall be entitled to have his or her child (of whatever age) educated, at his or her own expense unless a law otherwise provides, in a private school (that is to say, a school other than one established by a public authority) and, in such a school, to ensure the religious and moral education of his or her child in accordance with his or her own convictions.
(4) Nothing contained in any law or done under its authority shall be held to contravene subsection (3) to the extent that it is reasonably justifiable in a democratic society and to the extent that the law makes provision requiring private schools, as a condition of their being allowed to operate and on terms no more onerous than are applicable to schools established by a public authority, to satisfy—
(a) such minimum educational standards (including standards relating to the qualifications of teaching staff and other staff) as may be prescribed by or under any law; and
(b) such minimum standards imposed in the interests of public order, public morality or public health as may be so prescribed.
21.—(1) A period of public emergency may be declared by the Governor, by proclamation published in the manner provided in subsection (2), when—
(a) the well-being or security of the Cayman Islands is threatened by war, invasion, general insurrection, public disorder, natural disaster or other public emergency; and
(b) the declaration is considered necessary by the Governor to maintain or restore peace and order.
(2) A proclamation shall be taken to be published if it is published in a Government Notice or in a newspaper published in the Cayman Islands, or if it is posted in prominent public places or announced on the radio.
(3) Without prejudice to the power of the Legislature to make laws under this Constitution, during a period of public emergency the Governor may make such regulations for the Cayman Islands as appear to him or her to be necessary or expedient for securing the public safety, the defence of the Cayman Islands or the maintenance of public order, or for maintaining supplies and services essential to the life of the community.
(4) Regulations made under subsection (3) shall—
(a) have effect only prospectively;
(b) have effect, subject to this section, notwithstanding the provisions of any other law in force in the Cayman Islands or any rule of law having effect in the Islands;
(c) unless previously revoked, expire at the end of the period of public emergency during which they were made unless provision for their continuance in force (with or without modification) is made by the Legislature.
(5) Nothing in any law or done under its authority shall be held to be inconsistent with or in contravention of section 5, section 7 or any provision of sections 9 to 16 (inclusive) to the extent that the law in question authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in the Cayman Islands during that period.
(6) Before exercising any function under subsection (1) or (3) or under any law enacted by the Legislature to like effect, the Governor shall consult the Cabinet or, if that is not practicable in the circumstances, the Premier; but if in the judgement of the Governor it is impracticable for him or her to consult either the Cabinet or the Premier, the function shall be exercised by the Governor acting in his or her discretion.
(7) Where the Governor has consulted the Cabinet or the Premier under subsection (6), the Governor shall not be obliged to act in accordance with any advice given to him or her.
(8) Where any proclamation of emergency has been made by the Governor under subsection (1), a copy of the proclamation shall as soon as practicable be laid before and debated in the Legislative Assembly; and if the Assembly is not due to meet within five days of the making of that proclamation it shall meet within that period or as soon as practicable thereafter.
(9) A proclamation of emergency shall, unless it is sooner revoked by the Governor, cease to be in force at the expiration of a period of fourteen days beginning on the date on which it was made or such longer period as may be provided under subsection (10), but without prejudice to the making of another proclamation of emergency at or before the end of that period.
(10) If at any time while a proclamation of emergency is in force (including any time while it is in force by virtue of this subsection) a resolution is passed by the Legislative Assembly approving its continuation in force for a further period not exceeding three months, beginning on the date on which it would otherwise expire, the proclamation shall, if not sooner revoked, continue in force for that further period.
(11) Nothing in this section or in any emergency regulations shall be construed to preclude the Legislative Assembly from—
(a) meeting whenever practicable in accordance with its Standing Orders; and
(b) directing that reports relating to the emergency, including the implementation of any emergency regulations, be prepared and presented in such manner and within such periods to the Legislative Assembly as the Assembly may determine.
22.—(1) When a person is detained by virtue of any law in relation to a period of public emergency the following provisions shall apply—
(a) notification shall, not more than ten days after the commencement of his or her detention, be published in a public place (and thereafter as soon as possible in a Government Notice) stating that he or she has been detained and giving particulars of the provision of law by virtue of which his or her detention is authorised;
(b) he or she shall (if not sooner released), as soon as reasonably practicable and in any case not more than four days after the commencement of his or her detention, be informed, in a language that he or she understands, of the grounds on which he or she is detained and furnished with a written statement;
(c) his or her case shall, not more than 30 days after the commencement of his or her detention and thereafter during the detention at intervals of not more than three months, be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice;
(d) he or she shall be afforded reasonable opportunity to consult a legal practitioner of his or her own choice and to hold private communication with him or her; and
(e) he or she shall, at the hearing of his or her case by the tribunal appointed for its review, be permitted to appear in person or by a legal practitioner of his or her own choice.
(2) For the purposes of subsection (1)(d) and (e), if the detained person is unable to retain a legal practitioner of his or her own choice, the tribunal may approve such person as it deems fit to make representations to it; but nothing in subsection (1)(d) or (e) shall be construed as entitling a detained person to legal representation at public expense.
(3) On any review by a tribunal of the case of a detained person under this section, the tribunal may make recommendations concerning the necessity or expediency of continuing his or her detention to the authority by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.
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.
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.
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.
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.
27.—(1) In relation to any decision or act of a public official which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court); and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
28. In this Part—
“act” includes a failure to act but excludes a failure to introduce before the Legislative Assembly, or for the Legislature to enact, primary legislation;
“Caymanian” has the meaning ascribed to it in the laws of the Cayman Islands for the time being in force;
“contravene” in relation to any requirement includes failure to comply with that requirement, and cognate expressions shall be construed accordingly;
“court” includes tribunal;
“disciplined force” means—
a naval, military or air force;
any police force or prison service in the Cayman Islands;
“member” of a disciplined force is a person who, under the law regulating the discipline of that force, is subject to that discipline;
“minor” means a person who has not attained the age of eighteen years or such other age as may be prescribed for this purpose by any law;
“primary legislation” means a Law enacted by the Legislature;
“public official”—
includes a public or governmental body, including any statutory body or company or association in which the Cayman Islands has an interest and which performs a public function or duty;
includes any organisation or person carrying out a public function or duty, including the Governor, except where the nature of their act is private;
unless otherwise stated, excludes private schools (whether or not in receipt of government funding, subsidy or other assistance), churches, the Legislature and the courts.
The Cayman Islands Constitution Order 2009