Status holders can vote
Submitted by Anonymous on Wed, 08/29/2012 - 13:12
The Elections Office has not yet updated their form to reflect the fact that, since the implementation of the 2009 Constitution, Caymanian status holders do not need to be naturalised before they are qualified to vote. You just need your birth certificate and your Caymanian Status Certificate or Letter. On the application form, which you can download from the Elections Office, point #5 reads: "I am a British Overseas Territories Citizen by virtue of a connection with the Islands and acquired such citizenship by birrth/descent/naturalisation/registration (and I enclose a copy of my naturalisation/registration certificate)." Would it really be that hard to remove that point from the form for the sake of clarity?
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Reading all this back and
Reading all this back and forth stuff about the constitution from presumably knowledgeable lawyers posting reminds me of what Charles Dickens meant by creating his fictional Circumlocution Office and the interminable case of Jarndyce versus Jarndyce where no one made any progress except the lawyers raking in the fees over many generations as obscure arguments went back and forth. Bureaucracy, especially of the legal sort wins out. In Oliver Twist, Dickens has the admittedly nasty Mr Bumble say "The law is a ass, a idiot". But Dickens lived a very long time ago so I better go and get a life.
No one to charge for the time
No one to charge for the time spent here, I am afraid.
Naturalized Caymanian without Status
What rights does a person have if they are Naturalized but do not have Status?
You are not a naturalized
It is not just about updating
It is not just about updating the form. The Elections Law and Regulations need to be amended to conform with the new Constitution's requirements. The forms are prescribed in the Regulations. What should have happened is that the Elections Office should have made certain recommendations to the government back in 2009 as to the necessary legislative changes. They messed up and are now busy pretending that they have been registering people all along on the basis of the new requirements when in fact they had no statutory basis to do so and it is not true.
Good of you to point this
Good of you to point this out. Apparently this came into effect in 2009, and I just called to confirm; it's true -- Caymanian Status holders can now register to vote without having to be naturalised.
One note: The elections office website http://www.electionsoffice.ky/cms/ indicates that registrations are done quarterly, and the next on 01 OCT 2012. From what I understand, new registrations can be done anytime -- just take your Caymanian Status Certificate/Letter and birth certificate to your elections office and get registered.
In a country of our size, every vote matters.
I am thrilled to hear this.
I am thrilled to hear this. I am married to a Caymanian, received my status in 2007, but have not been naturalized. (**My lawyer insisted that I need to wait for my husbands to be naturalized first has e received his by status by descent)
Anyhow I will take my paperwork to the voting office!
CNS, please make your next registration headline this simple....Have Status? CAN VOTE!!!
Now for an expat candidate?
Your lawyer was in fact right
Harry Potter meets Alice in
Harry Potter meets Alice in Wonderland.
The wrongful denial of the
The wrongful denial of the right to vote is worth about $2500 in compensation in modern human rights case law, plus the availability of exemplary damages which can be recovered for a denial of such rights. Anyone who has lived in Cayman for over 12 years is being illegally denied a right to vote under the ECHR. Perhaps write to the Elections Office and get a "No", and then protest to Mr. Bellingham before suing for some cash.
The Article 3 of ECHR and the
The Article 3 of ECHR and the first protocol do not provide any automatic right to vote in national elections simply because you have been resident for 12 years unless you are a citizen of that country. If that were so most signatories would be in breach.
Rubbish. The ECHR does not
Rubbish. The ECHR does not require any such thing.
Read your case law on Article
Read your case law on Article 3 of the First Protocol.
I have. Prove it.
I have. Prove it.
Bet you haven't.
Bet you haven't.
Now you are playing games. I
Now you are playing games. I challenge you to produce one single ECtHR decision that says 12 years of residency automatically entitles one to the right to vote in a country in which one is not a citizen under the ECHR. I dare you.
Forgive me for injecting a
Forgive me for injecting a touch of substance into this as it was getting a bit silly.
1) General prohibitions on ethnic discrimination
Discrimination on the basis of ethnicity is race discrimination (Timishev v. Russia, 55762/00; Sejdic and Finci v.Bosnia and Herzegovina 27996/06 ). Attempted justifications for race or ethnic discrimination must be interpreted as narrowly and strictly as possible (DH & Others v. Czech Republic 57325/00). The state must use all available means to combat racism (and hence ethnic discrimination) thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but a source of enrichment (Nachova and Others v. Bulgaria 43577/98; Sejdic and Finci). No difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on principles of pluralism and respect for different cultures (DH and Others; Sedjic and Finci). It may be possible to justify a requirement that a certain number of representatives are from an ethnic group, but that cannot constitute a bar to access to stand in elections for other ethnic groups (Sedjic and Finci).
2) Limits on the right to vote
It is permissible to impose residence requirements upon the right to vote (Hilbe v. Liechtenstein 31981/96; Garofalo v. Italy 24450/94). There can be exceptional reasons of past bloodshed and a desire to resolve that conflict which may provide special circumstances (Sejdic; Py v. France 66289/01). However absent such special reasons it would appear that a residence requirement of 10 years would appear disproportionate (Py – in which there were exceptional and irrelevant countervailing factors).
The Cayman Islands is not an entity in international law and has no separate citizenship (R (on the application of Barclay and others) v. Secretary of State for Justice and Others [2009] UKSC 9). It is entitled to treat aliens differently to UK citizens for the purposes of elections, but the distinction between a BOTC and a UK citizen, while of immigration importance, would not be a distinction which would affect the domestic rights of UK or BOTC citizen once legally resident in Cayman. A convention state (i.e. the UK) can permit differences in treatment between the primary and ancillary territories in respect of convention rights (i.e. provide different treatment in the UK and Cayman), but only where it can be shown that there is positive and compelling proof of a compelling requirement within the meaning of Tyrer v. UK [1978] ECHR 5856/72.
So where does that leave the right to vote and stand in the Cayman Islands?
1. Different treatment of BOTC passport holders and Caymanians is race discrimination (the concept of “Caymanian” being a legal irrelevance for concept of citizenship).
2. The different treatment of BOTC passport holders and British citizens is almost certainly similarly illegal. Once one is a resident in Cayman and a UK citizen different treatment between UK citizens and Caymanians on the right to vote is ethnic discrimination.
3. As a general point, the different treat of Caymanians and other UK/BOTC citizens is ethnic discrimination and is almost never capable of being upheld whether in the context of the right to vote or other fundamental rights.
4. The different treatment of UK/BOTC citizens and citizens of other states which have the right to vote in UK elections but not Cayman elections may be illegal discrimination, but this is a more challenging argument to sustain and the better argument is probably that there is no right to vote.
5. There can be a restriction imposed on UK citizens and non-Caymanian BOTC citizens based upon a period of residence provided it also applies to Caymanians. A period of minimum residence of one session of the LA will be legal. Somewhere between 4 years and 10 years it is likely to become illegal. Beyond 10 years it is illegal. Practically, there is no way that a bar on voting/standing for elections on UK/BOTC citizens with PR would be legal.
6. The present limitations on the rights to stand in election based upon ethnicity (whether direct i.e. birthplaces of parents/grandparents or indirect holding of other passports) are unarguably illegal.
7. It may be possible for the provision for a certain minimum number of “Caymanian” MLAs (defined perhaps by place of birth of parents or grandparents), provided that this is the minimum necessary to achieve a justifiable end, but this cannot exclude other ethnic groups from effectively and meaningfully participating in the political process.
All of this ignores the fact
All of this ignores the fact that Cayman is not part of a unitary state of the UK but instead a separate territory of the UK which has its own people who are entitled to a right to self-determination (which is recognised in International Law). The right to vote and to stand for office is not of course limited to ethnic Caymanians at all since those rights may be acquired through the appropriate process of registration or naturalisation as a BOTC and acquisition of Caymanian status. That is simply a distraction.
Seeking to dilute or obliterate the right to self-determination by giving the right to vote and stand for elections to British Citizens (on the basis that we all have the some form of British nationality) is an infringement of Caymanians' right to self-determination much like the Chinese are seeking to do with Tibet.
There would be a strong argument that this provides a valid, objective, reasonable and proportionate justification for distinctions between British Citizens and BOTCs by virtue of their connection to Cayman with respect to their right to stand for office etc. in which case there would be no illegality under International Law.
I think this misses the point
I think this misses the point inherent in Py. If the issue was ability to participate in a referendum on independence then there might be the start of such a point. But these are elections for a legislature which decides what to do with the dump. The self-determination and proportionality point as the excuse for race discrimination would therefore fall down and the minimum necessary steps stage. As far as internal discrimination, s.61(1)(f) ands.61(2) of the Constitution are express pieces of race discrmination against local citizens regardless of your other point.
Once one is entered on the
Once one is entered on the electoral register it is for ALL purposes including a referendum on independence so your argument fails from the start.
You are missing the point of s. 61(1)(f) and s. 62(2) of the Constitution. They permit non-ethnic Caymanians to run for elections; they do not disqualify "local citizens", so your argument also fails at that level.
Many of these issues are still moot. Please stop pretending that there is a clear case.
But race discrimination
But race discrimination cannot be maintained if there is a less obstrusive and discriminatory means of achieving the same end. Hence even if one could sustain an argument based upon self-determination, which is unlikely, that concern could be easily addressed by providing that the discrimination of which you advocate only exists in the narrow confines of referenda and other votes which cover self-determination (as happened in Pyr).
As to your second point, at least it concedes the point that the distinctions inherent in the Constitution are based on ethnicity, which is obviously right. Certain posters on this thread have disagreed with that analysis but the point is clear. A "non-ethnic Caymanian" (your phrase) that is a citizen (i.e. Caymanian) but who is treated differently within s.61 and s.62 by reason of the place of his/her birth, is subject to discrimination within those sections by reasons of his/her ethnicity which is per se ethnic discrimination. The different residency requirements in s.61 express discrimination. The bar on multiple citizenship in s.61 and s.62 is indirect discrimination (since it tends towards have a greater effect on those who lived outside the Cayman Islands).
The Constitution does not
The Constitution does not limit the right to stand in election based upon ethnicity. That is a misreading of its provisions.
s.61(1)(e) and (f) of the
s.61(1)(e) and (f) of the Constitution discriminates between candidates by reason of their place of birth.
s.61(2) discriminates between candidates on the the basis of the place of parents and grandparents place of birth and further discmrinates against candidates with links to other jursidictions, and as far as the second limb this is replicated in s.62(1)(a). This is ethnic discrimination and hence race discrimination.
Place of birth is one factor
Place of birth is one factor connecting you to the territory. Grandparent is another factor that may connect you to the territory. I think you will that they both have a legitimate aim and the requirement is objective, proportionate and reasonable. Persons who are not born in the Islands and do not have a Caymanian grandparent are not excluded; they just qualify differently.
Rather than rushing around trying to find discrimination behind every tree why don't you do something constructive with your time?
There does seem a very strong
There does seem a very strong attachment to defending an indefensible status quo. Typically that if fear based. Different treatment of Caymanians depending on where they were born when it comes to basic poltiical rights is never going to be a credible argument in a human rights context. It is 100% racist discrimination.
Head - bang - wall - repeat.
Head - bang - wall - repeat.
That is what I was going to
In other words there is no
In other words there is no ECtHR decision says that 12 years of residency automatically qualifies one to vote regardless of citizenship. The whole argument about no distinction between BOTC/British Citizenship obviously excludes Jamaicans, Filipinos, Hondurans etc. who constitute the mass of residents.
I agree with you. The rights
I agree with you. The rights guaranteed by Article 1/3 are generally accepted to only apply to citizens. Although when the UK permits non-citizens to vote in its primary elections, this could be a springboard argument for non-citizens (by which I mean non-UK/BOTC citizens) to claim discrimination in a Cayman context. Personally I consider that a difficult argument, though some may disagree.
I think Babefish (and to some
I think Babefish (and to some extent the anonymous other posters) deserves a vote of thanks for taking the trouble to set out these arguments for us to review. It makes for a refreshing change from the common intolerant Caymanian v Expat wrestling that is so close to the surface in many posts on CNS. I don't know about other readers, but I find these legal issues complicated and difficult to grasp and I would describe myself as of above average intelligence! Does it have to be so complex and impenetrable to the average reasonable person?
The ECHR law is pretty
The ECHR law is pretty straightforward, the byzantine layers of discrimination under Cayman law is what is impenetrable.
ECHR law is not
ECHR law is not straightforward but evolving all the time. There are people who try to make it look simpler than it is to serve their own agendas.
The hypocrisy of some Brits never ceases to amaze me. When Britain was busy taking away the vested right of abode in the UK of some citizens of the United Kingdom and Colonies on the basis of ethnicity there was not a peep about racial discrimination. Now, all of a sudden, Brits supposedly have the moral high ground in the fight against discrimination being imposed by its wicked Overseas Territories (whose people Britain had previously dispossessed of the right of abode).
But the right of abode is an
The gist of the point was
The gist of the point was hypocrisy.
At least you acknowledge that
At least you acknowledge that it was wrong.
That was not acknowledged.
"Caymanian" is not a race or
"Caymanian" is not a race or ethnicity so it is difficult to make the argument re discrimination on those grounds.
"The different treatment of BOTC passport holders and British citizens is almost certainly similarly illegal".
The UK invented this distinction in the British Nationality Act and still maintains it to the extent that a BOTC who does not have British Citizenship has no right of abode in the UK and is treated like any other Commonwealth Citizen.
Phrases which indicate the
Phrases which indicate the link between "Caymanian" and "ethnicity" - "indigenous", "son of the soil". "nth generation". Have a read of the bizarre preamble to the constitution and you will find all the proof anyone will ever want on the question of whether "Caymanian" falls within the rights concept of ethnicity.
The Constitution provides a
The Constitution provides a definition of Caymanian which has nothing to do with ethnicity.
"“Caymanian” has the
"“Caymanian” has the meaning ascribed to it in the laws of the Cayman Islands for the time being in force; " which means one has to go into the joys of the apartheid system of local legislation and then the "no ethnicity" argument sinks without a trace.
Nonsense. The Immigration Law
Nonsense. The Immigration Law defines "Caymanian" as "a person who possesses Caymanian status under the repealed Immigration Law (2003 Revision) or any earlier law providing for the same or similar rights, and includes a person who acquired that status under Part III". Nothing to do with ethnicity.
Quite wonderfully Nelsonian.
Quite wonderfully Nelsonian.
You obviously have not
You obviously have not considered the definitions of ethnicity. s.61(1)(e) and (f) of the Constitution discriminates between candidates by reason of their place of birth. s.61(2) discriminates between candidates on the the basis of the place of parents and grandparents place of birth and further discmrinates against candidates with links to other jursidictions, and as far as the second limb this is replicated in s.62(1)(a). These are all exmaples of ethnic discrimination and hence race discrimination.
The international conventions
The international conventions which cover racism which have been approved by the ECHR and the scope of ethnicity as defined in the ECtHR decisions would squarely place "Caymanian" within the concept of ethnicity, and hence within the scope of per se racial discrimination. Indeed the argument used to defend the illegal discrimination on the right to stand on elections is predicated on the concept of the protection of Caymanian ethnic interests. This is the antithesis of the obligation to accept the enriching value of diveristy, as supported by the ECtHR in Nachova, Timishev and Sejdic
As for your second point, you are raising immigation issues and immigration does not properly fall within the scope of the point being discussed. The point being discussed is the right of residents to participate in the poltical process consistent with their fundamental rights.
Under the ECHR defintion of
Under the ECHR defintion of ethnicity, discrimination in favour of Caymanians is 100% ethnic discrimination and therefore race discrimination.
Your issues with the UK's treatment of BOTC citizens is not relevant, although you missed the point that immigration issues are separate from this discussion which was predicated on what happens when someone becomes resident, not what happens previously.
I am not sure I follow why
I am not sure I follow why immigration is irrelevant. You are splitting hairs. It seems to me that if it is unlawful discrimination on the basis of ethnicity to deny one citizen (British Citizen) the right to vote accorded to another (BOTC) it must equally be unlawful discrimination on the basis of ethnicity for one citizen to have the right of abode (British Citizen) and for another (BOTC) to be subject to immigration control. You can't have it both ways.
That would be because
What are we paying the
What are we paying the elections officers? How much do they do in between elections?
Between elections they do
Between elections they do nothing but Kearney and Colford and Orrett need their pensions generously supplemented so please be reasonable and leave them alone.
You mean we have three senior
You mean we have three senior officers and not one of them had the time or incination to update this critical form!!!!! Shameful!
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