Premier defends legality of curfew in Cayman

| 18/05/2020 | 135 Comments
Cayman News Service
James Austin-Smith

(CNS): Like governments the world over, the Cayman Islands government has been balancing public health concerns regarding the spread of COVID-19 in the community with the damage that lockdown inflicts on the economy. However, another contentious debate has emerged about the legality of the lockdown measures taken by the CIG, which the premier has indicated he strongly stands by.

After local lawyer and former chair of the Human Rights Commission, James Austin-Smith, published a paper last week questioning the legality of the curfews imposed here in Cayman, Premier Alden McLaughlin responded during the COVID-19 press briefing last Wednesday by reading out a letter sent to him and the attorney general by David Collins, President of the Cayman Islands Legal Practitioners Association (CILPA), expressing the organisation’s full support for the government’s actions.

But in a letter sent on Monday, 18 May, to Collins, Austin-Smith asked him what steps CILPA had taken to “ascertain the legality of the measures adopted by government before offering its unqualified support” for them. He also queried whether Collins did, in fact, have the support of “the shared view of the majority of attorneys”, as he had claimed.

He asked Collins to “clarify what steps CILPA took to ascertain the views of the majority of attorneys before purporting to speak for them”, and noted that neither he nor any other lawyers he had spoken to had received any communications from CILPA on this issue.

In his original paper, Austin-Smith had stressed that while “it questions the legality of the measures imposed, nothing in it is intended to detract from the fact that they remain the law in the Cayman Islands and breach of them constitutes a criminal offence with the potential for imprisonment. The law must be complied with.”

Nevertheless, he questioned whether the extended hard curfew was lawful under the Police Law, but also argued that it might contravene Constitution of the Cayman Islands and the European Convention of Human Rights (the ECHR). 

Austin-Smith said it was “very strongly arguable… that a significant restriction such as that created by the combination of the hard and soft curfews in Cayman, backed with criminal sanctions of up to 12 months in prison, is likely to engage” section 5 of the Constitution, which states that that no one can be deprived of their liberty.

Among a list of circumstances where this does not apply is (g) “for the purpose of preventing the spread of an infectious or contagious disease”.

However, he argued that the exemption for this and several other rights that may be infringed by the curfews, must be “in accordance with a procedure prescribed by law”, in this case the Police Law, which he said might not be the case.

At the press briefing last week, the premier, who is a lawyer himself and was the driving force behind the 2009 Constitution, talked about the “hate mail” he was receiving from some attorneys. But he also read out the letter from the president of CILPA, which he noted had more than 900 members.

“I want to assure you that the legal profession is supportive of the government’s handling of this crisis to date,” Collins wrote, adding that some attorneys may have views that differ from CILPA’s “and the shared view of the majority of attorneys”.

Addressing concerns about breaches of civil rights under the Constitution, the premier said the current limitations to rights such as freedom of movement are “expressly carved out” in the Cayman Islands Bill of Rights where there are concerns about public health and the spread of infectious diseases.

“I am entirely satisfied, as is the attorney general and others who have looked at it, that all of the measures we have taken so far are reasonable and proportionate to the risks that we are seeking to address and the challenges we are trying to deal with,” the premier said.

He went on the say that “little or no regard” in Austin-Smith’s paper was given to “the paramount right, and that is the right to life”. He said the paper had inferred that “the right to life was limited to healthy young people”. But he said the right to life applied “whether a person is 102 years old… or whether you are some young buff attorney, 35 years old, who thinks that you are immortal”, and the government had an obligation to defend that right equally, regardless of age.

However, in his letter to Collins, Austin-Smith, specifically addressed this point, saying that the expressions of support for the government had been “used as a political tool by the premier, who went on to completely mischaracterise and misrepresent the legal analysis which I had circulated, wrongly implying that I didn’t care about other people’s lives which could be put at risk as I was healthy and had nothing to fear from COVID‐19.”

See the full paper by James Austin-Smith and his letter to the CILPA president in the CNS Library.

See the full briefing on Wednesday last week on CIGTV below, set to start where the premier discusses the legal issues surrounding curfew.


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Category: Laws, Local News, Politics

Comments (135)

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  1. Anonymous says:

    at this point we have definitely smashed the curve … our infection rate is so low and our borders are closed… we want some kind of herd immunity so that come nov (if the borders are open ,and even if they are not and this virus comes back) everyone will get it all at once.. we need so still have some of this virus around . and come on there is no way we can keep the borders closed. If we did there would be nothing to come back to..

    Eradicating the virus shouldn’t be our objective unless we keep borders closed till there is a vaccine which unfortunately no country cant wait for, especially us.. So i believe our actions were right from the beginning in that it gave us time to prepare and understand what it is we were dealing with but we have done well and the fact is it is here and its not going away. we have to move forward understanding it is here and until there is a vaccine we have to work around it. and keeping borders closed for that undetermined time is impossible. so what do we do?

    i get we are trying to save lives but if you look at the type of covid we have here most are asymptomatic and have no issues… very few have needed hospitalization, and those who did were hospitalized for other issues. In all actuality we have already had wide spread of this virus. There was a large influx of hospitalizations with respiratory issues in December and in February. this has probably been here a lot longer than we know… And Covid was well known and acknowledged world wide by Feburary( largely on cruis ships) and we knew this here and still allowed cruise ships to come to cayman till March 16th . Why? with the virus already taking over cruises and being a problem… why did it take that long…

    My thoughts are that way more lives will be lost because of covid and not because anyone had covid… but the covid epidemic will cause loss of business that people who have worked their lives to achieve, children uneducated and hungry, suicides and extreme mental illness, violence and theft , divorces, the list could go on… at some point should’t we all asses our own risk ..one person for yourself choose to go out, to interact knowing the risks. if you are part of the venerable then you protect yourself. you stay home… most of those people are not part of the working community anyway.. everyone staying home , not working , not providing for their family, isn’t protecting anyone… not sure what the answer is but what we are trying to achieve now we don’t have time for.. people cant wait this out … we have complied and stood by our governments decisions but what is the end game… ??? tell us your plan… When do you expect the borders to actually open.. many people spending all their money to help their employees survive hoping that borders will open so they make it and keep going… need to know what the actual thoughts are.. and the comment of Alden saying it doesn’t look hopefully for airport to be open by sept.. im sure they knew this for a long time. stop bullshitting.. be real and let people figure out their futures!!!!!!

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  2. Anonymous says:

    Original Ugh – HAHAHAHA good one. +1
    Fake Ugh – boring troll

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  3. Anonymous says:

    He is also defending Bush. Just saying. And the MOH Dum dum. And still trying to fix the dump.

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  4. Anonymous says:

    Hmmmm…but aren’t the curfew orders defined by the Commissioner of Police, in consultation and support of the Governor, Premier, Minister of Health, and Chief Medical Officer, pursuant to the powers conferred under Section 34 of Public Health Law (2002)?

    Like him or not, it’s my understanding that the Premier is just one of the 5 people on that Emergency Policy Committee. Despite Alden’s ego, and microphone flexing, it’s also supposed to be the Governor (sitting in the center under our Queen’s portrait) executing these emergency powers as Her Viceroy to this UK Territory. We need to pass him the microphone so he can better explain his execution strategy for the Territory.

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    • Anonymous says:

      No. I wasted three minutes of my life looking up your citation….

      The appropriate citation remains Section 49 of The Police Law (2017 Revision) but the requirements for written consent from the Governor have not been forthcoming nor has there been any justification for the clear departure from the restrictions within this section.

      I’m just gonna leave this here:

      https://youtu.be/5hfYJsQAhl0

  5. Anonymous says:

    It’s just as legal as the port referendum law. Oops.

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    • Anonymous says:

      For those that want to stay home and isolate, please do so. For those that want to get on with living and enjoying life, please do so. It is that simple. Stop telling people what they should think and do what is right for you.

  6. Anonymous says:

    Ok. So for everyone who is boo hooing becuase they cant work, cant get the service they want, let’s ask the government to cancel the curfew and put everyone back to normal tomorrow. This will satisfy most for a week or two and then we will hear the cries. This is okay as long as the lawyers and businesses folk who want to put these people back on the road, into cubicles, crammed trucks and into ours home to work will pay the medical bills for Corona treatment. If we can contact trace a out break at a location back to one of these greedy “service” providers they should pay the entire bill for the treatment of all affected.

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    • Anonymous says:

      We do pay for health care expenses by paying for health insurance for our employees. At least my firm does.

  7. Anonymous says:

    When was the last hospitalization? When was the last symptomatic Covid-19 case? What will happen If children are not vaccinated for smallpox? When will we look at data without infusion of ‘religion’ from person who are faux religious? I for one would like to know when.

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  8. Just a guy says:

    Once we get the anti body test (abbot test) I think a lot will be shocked how many people here have had this thing

    I am almost sure this came through cayman December, January

    It’s all good testing people with what we have but it’s almost useless as we have to get tested and tested

    Right now we have a positive test rate of 1.5 percent and no one here (besides the person who”brought” it here has died)

    That number will fall even more if we actually tested everyone with the test we have now bit the abbot test looks for antibodies

    These antibodies can only be in the body after you have had the virus and then your body defeats it. Meaning you cannot get it again.

    It would not shock me if over 10k people in cayman have had this thing already and are now immune

    We should be open and not frightened nor should we turn against each other

    What is done is done
    Those who have left have left

    But those who are here
    All of us have to stand together and get this country up and running again

    Just don’t forget all we have learnt and thought bout during these times

    I really believe that is the most important thing we can take from this

    I know I’m going to try to be a better person, give what I can, help who I can and cherish the little things I have taken for granted for so long

    Just a thought

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  9. Anonymous says:

    Looking at virology briefs, there is strong suggestion that Coronavirus is mutating to a weaker virus. Ie as SARS did. Their is significant precedence for this occurring. Muller’s ratchet, virology studies at malformed universities. As well as anecdotal evidence from around the world.

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    • Anonymous says:

      Hahahah, was supposed to read Major Universities. Love me so autocorrect.

    • Anonymous says:

      I hope that’s the case and there are also many studies that show immunity is not something that we can rely on longterm. So much still to be learnt.

  10. Anonymous says:

    Is it just me, or does anyone else notice that our new Covid-19 cases all seem to be asymptotic? Just wondering if we are fighting an already hobbled adversary. Do we need the same draconian stance?

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    • Anonymous says:

      Agree, it is mostly “asymptotic” or majority got it when Cayman saw spike in flu cases.

      “The HSA…. said 640 cases of “flu-like symptoms” were recorded in December. An additional 816 cases were recorded in January [2020].”

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    • Anonymous says:

      DNA deletion is very common. I think that is what we are seeing. Check out the university of Arizona study. if the virus seeks to propagate it must weaken to find new hosts, it is Virology 101. With SARS it took five months, hopefully we are now fighting a weakened Coronavirus. But sadly I think our unscientific mlas will be all bible verses and bullshit Instead of reason and science.

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      • Anonymous says:

        This is good news. I know some fear mongering MLAs will be sad, that they will loose the ability to control every aspect of our lives. but really it is life changing news. We will have to wait to see if it is accurate. But at least it gives us some hope to be free again.

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  11. Anonymous says:

    David Collins didn’t poll or in any way seek to canvas the opinions of CILPA members yet felt free to claim to represent their views publicly in this manner?

    Hopefully someone will be asking why this was the case in the next meeting of the association?

    Perhaps he is trying to build up some political good will for the future?

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  12. Anonymous says:

    In my view, the government, the Governor, the public service, and those from the private sector who are working very hard and very quickly with limited information and in difficult circumstances, in order to keep us safe, all deserve a great deal of thanks and credit. If it were up to me, Cayman would follow the example of other countries, and have a weekly public expression of thanks to show our appreciation to all those working to suppress Covid-19.

    That being said, none of the people working hard on our behalf is infallible, and no reasonable person would expect any of them to get everything absolutely right when moving with such necessary haste. If 20/20 hindsight shows that something could have been done better, that should not be held against them. Then again, no one else should suffer because things could have been done better.

    In that regard, there is some cause for concern in relation to the sheer number of people going on trial for alleged curfew violations, particularly when some of the legislation that they were expected to comply with, has not been published in the normal way.

    If I understood him correctly, the Commissioner of Police indicated last Friday that more than 750 people, more than 1% of our population, are going on trial very soon, in daily batches of 25 or so, for various curfew breaches allegedly committed over the past few weeks. That is the next phase in a process that could leave some or all of them with criminal records, with all that entails.

    Some members of my family have long-term health issues. I do not want them to suffer or die because of the stupidity or selfish acts of others. At the same time, I find myself asking, should we hand out criminal records and perhaps prison sentences to more people than might have ended up in hospital if the government had not taken the strong measures they have? Are criminal records a fair punishment, particularly if some of those people might not have understood the new rules, or worse, could not be reasonably expected to have understood the new rules?

    I know that the Police Commissioner, who is doing a superb job in incredibly challenging circumstances, has stated that he is aware of some potential problems in relation to the cases against some of the people now facing prosecution and imprisonment. He indicated at one of the Press Briefings that in response to these potential problems, he has set up a quality control process that is supposed to flag problem cases before they are passed on to the Director of Public Prosecutions for prosecution. That proactive intervention is highly commendable. Nevertheless, it gives rise to a question. If there are more than a very few such instances, (we will probably never know the numbers), why were the rules not sufficiently clear to the police enforcing the curfews in the first place? If the rules were not clear to the police, how can ordinary people be sent to prison for not knowing and complying with them?

    I, for one, have found it sometimes very difficult to follow the shifting curfew restrictions. On those occasions when I found things confusing, I went on line to the usual Gazette website so that I could read what the new rules said.

    During the initial days of the curfews in particular, the soft curfew rules were easy to find, but not the hard curfew rules. I looked for the hard curfew rules in the Gazette, on the government’s website, and on the Police website. I could not find anything in any of those places, and unfortunately Google was not helpful in finding them.

    A number of other people I know who are proficient at looking such things up, could not find them either. The journalists who participated in the Covid-19 Press Briefings reported that they could not find them, and they quite properly questioned the government about not being able to see them.

    As long as I have been able to read, we have published all of our legislation in the Gazette. I had assumed, perhaps wrongly, that publication was a legal requirement before laws came into effect. The soft curfew rules are published in the Gazette, so publication was certainly possible during this pandemic, but it appears that the hard curfew rules that carry the heaviest penalties were never published in the Gazette for some reason.

    I tried to look online to see if there was any obligation for government to publish laws that provide for people to go to prison for non-compliance. I did not find anything specific to Cayman, but it seems that in England, Canada, Australia, New Zealand and other places, laws must be published in their gazette equivalents before people can be sent to prison.

    The attorneys out there will probably be able to clarify this, but from what I could find online, it seems that the rule of law that the Governor spoke about, and something else called the principle of legality, as well as something called due process, all require laws to be published in a single predictable place before they can be used to send people to prison.

    Publishing laws in something like the official government Gazette that is online so that ordinary people, (or at least those fortunate enough to have computers), can find them in a predictable manner, seems sensible to me. If all the rest of Cayman’s laws are there, why are the hard curfew laws not there for people to read? I suppose that is one of the many questions that will be left for the judges to decide.

    Fortunately, we are blessed in Cayman in having an independent, extraordinarily gifted and fair-minded judiciary. They will determine what the rule of law, the principle of legality, and due process mean and require; in practice, in Cayman, and in these circumstances. Perhaps all of those things are irrelevant or dispensable in Cayman. That is for our judges to say.

    I am confident that our judges be able to identify and deal with any relevant human rights issues, irrespective of whether people can afford attorneys to defend them. They will also be able to assess whether all the things that ought to have been done by government at each stage in the creation, periodic renewal, publication, and enforcement of the various curfew rules, have in fact been done in full compliance with the law.

    I have no doubt that our judges will do their part in ensuring that we, the public, are protected from the lawless and reckless. They will do this while also ensuring that the benefit of the doubt will be given to those entitled to it, and that the innocent who have been unfairly accused of breaches of the law, are protected from any inadvertent errors in the creation, publication or enforcement of laws. They will ensure that justice is done.

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    • Anonymous says:

      @ 1.58 I think you’ll find the vast majority of those cases will be thrown out at the first opportunity. You can’t be prosecuted for a violation of the law when effectively there is no law. You need to know what offence you are being charged with and it needs to be legislated. The ‘warned for prosecution’ nonsense was nothing more than a whip to keep people in line. And the judges here will see through that instantly. The people who will be prosecuted will be people who had other offences when they were caught breaking ‘curfew’.

  13. Anonymous says:

    I am not a lawyer so I have to ask. If they lawyers questioning the procedures (curfew/lockdown/etc.) put in place but not the aim of the procedures (stop the virus spread/save lives), what would they have done differently to achieve the same results?

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  14. Anonymous says:

    My advice to all real lawyers, like Mr. Austin-Smith is to remove yourselves from the farce that is CILPA! This is the thin edge of the wedge. You will soon find many positions taken on your behalf that are self-serving.

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  15. Anonymous says:

    I think the majority of people who live here ( but not those in gated communities and condos costing eye watering amounts to buy and maintain) don’t give a toss about Mr Austin Smith’s erudite and cogent analysis of supposed government misrule over the Covid crisis ( though the Premier’s rather petulant response didn’t help). They just want the situation under control and life to resume as close to normal as soon as possible. We all need lawyers on occasions, irksome though they can be. But never forget that if you have the funds, you can always find an eminent lawyer to argue, eruditely and cogently, the exact opposite of a seemingly cut and dried argument. I am in no doubt of Mr Austin Smith’s ability ( and regret he is no longer on the HRC) but if I were rich, I could find a number of eminent QCs in London who would take my 1000 pounds an hour and show him, eruditely and cogently, just where he is wrong.

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    • Anonymous says:

      Ugh

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    • Anonymous says:

      Boring rant challenge: without looking up what they mean, use “eruditely and cogently” consecutively, three times in a single paragraph. Congrats!

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      • Anonymous says:

        There was a deliberate reason for the poster to use the expression “eruditely and cogently” three times ( how the hell do you presume he doesn’t know the meaning of the words?) but I suppose you don’t have much sensitivity to the use of language 1:51, as evidenced by the expression “boring rant challenge”. Question: is it true that every legal position taken by a lawyer, no matter how well regarded in the community, is open to an equal challenge expressing a totally opposing view by another lawyer?? That’s all that poster was saying. So, 1:51, yes or no? No ad hominem stuff. Just yes or no.

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    • Anonymous says:

      Well, you have to decide if you want to retain reputation of one of the World’s financial centers or the Island time forgot.

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    • Anonymous says:

      Somebody found a thesaurus.

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    • Anonymous says:

      You may be rich but you just proved money cant make you smart lol

  16. Anonymous says:

    James Austin Smith is right on the law. The public should bear in mind that, unlike David Collins and the vast majority of the CILPA Council, he is an actual practitioner and a very experienced advocate who has spent many years here in the Courts of the Cayman Islands.
    In any event, if any member of the public really wants to know why CILPA is pandering to the Government, they should pay attention to what happens soon in the Courts when multiple Caymanian lawyers who are not members of CILPA sues them (some already have) and Government for, among other things, multiple breaches of their rights as Caymanian lawyers to practice law without being forced to join CILPA, which is a private company, created and controlled by a handful of the large law firms in GT. There are many parallels with what has happened there to what is happening here, among them that Government is using an “emergency” which is largely due to their complacency, to generate concern that then feeds their official narrative that “something has to be done now!” in order to do what is expedient to government, so that it can say that they have “done what is necessary”, regardless of the legal and constitutional consequences.
    The really shameful thing here is that here too, with this crises, Government has very effectively used the situation where they waited too long to react to generate overblown fear of impending doom so as to manufacture consent from the masses, thereby rendering most people helpless to even be willing to speak up against the encroachment on their constitutional rights, else they be torn down by that feral minority group that seems to be willing, actually motivated, for some inexplicable reason, to silence any dissent.
    But, maybe what the public should ask themselves is, in the event that they ever need a lawyer to fight for their rights: do you want to be represented by someone who panders to the government, or someone who is willing to stand up against them, no matter how politically unpopular their stance might have to be?
    Maybe we should all start looking at the big picture here, and not what appears to be personally convenient at the moment.
    Maybe we should also actually have a think about whether and to what extent the lockdown measures and the curfew actually address the concern, which is the spread of the virus, just from a common sense perspective.
    Here is a simple question everyone should be asking themselves now: Why do we even need a police curfew anyhow, now that we have very detailed, prescriptive Regulations detailing the lockdown measures?
    Thanks for yourselves folks. Ask questions. And demand answers.
    Last time I checked, Alden was the Premier, not our sovereign. He actually works for us. We appointed him and we pay him, as well as his cabinet and his caucus, so he should be willing and able to explain the rationale behind each and every encroachment on our ordinary rights and freedoms.

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  17. Anonymous says:

    As a lawyer I say who cares if we technically followed the correct protocol blah blah blah. Let’s do what we need to do now so that large numbers of us don’t die, and worry about the details later.

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  18. Anonymous says:

    When the Titanic struck the iceberg, there were very few people on board who could see the importance of how the deck chairs were arranged, and regardless of circumstances that arrangement had to be maintained. Thank you James, and others, for recognizing and pointing out the importance of protocol in our lives.

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  19. John Harris says:

    Speaking as a practising lawyer and member of CILPA, they never asked my opinion before giving the government my unqualified support.

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    • Anonymous says:

      John, you are great because you don’t hide behind anonymous. Thank you.

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    • Anonymous says:

      I have a huge amount of respect for anyone willing to speak up outside the veil of anonymity…. I hope to be able to do the same some day, but I’m scared of the repercussions on my permanent residency application far more than getting COVID-19

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  20. Warned for intended prosecution says:

    Mr James Austin Smith well understands what a state of Emergency means and its powers i doubt like many on here talking foolishness were here during hurricane Ivan and understand what the ramifications and consequences or what occurred here when you don’t take steps to put “things” under control, roving bands of looters in cars and on bicycles with machetes looting and robbing and raping people, others trying to take control of a loaded Fuel Truck in industrial park.Now we have people possibly infected with an extremely contagious virus killing people worldwide and [people] questioning the measures the govt has been taking to protect us from them.

    Now they are conveniently using “Our” XXX constitution against us to serve their interest no doubt because many have been cited or warned for intended prosecution for failing to comply with the law. I guarantee this if it was only Caymanians charged you would not here diddly squat from anyone XXX complaining about this DISEASE containment program.

    The governor has it right it’s just sad he is sending home some of our essential people and not this absolutely no use hoard who keep complaining about their rights.

    CNS: Edited to delete personal attacks.

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    • Anonymous says:

      James was here during Ivan. You are a fool. I hope you leave as you are tearing down our country with your ignorance.

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  21. Anonymous says:

    Overall, I think CI’s COVID-19 management has been good, if not a little bit late on the scene. My only critique (and it’s not a new one) would be with how power appears to flow in the Cayman Islands from the wrong chairs. For sure, the Queen’s Governor has the ultimate authority, as viceroy of the Territory, to intercede with emergency powers to temporarily amend Health Law, impose time-defined curfews, temporary legal regulations, and direct the police commissioner and judiciary. That’s what’s happened on paper. By comparison, an unelected Premier should wield similar influence and sway as that of a small town mayor, and should not pretend to sit on a throne. However, the panel broadcast gives the loose appearance that our Governor has offered his signature to whatever the Premier, CoP, and CMO felt collectively, or individually necessary, without properly sharing the reasoning (if there was any) with a weary untrusting public. Our problem is that the reasoning explanations seem to have been replaced with telling live on air snickers, side glances, and laser eyes from off camera, affirming distrust. Further, no grownups jumped in as Wendy was being attacked live on air for being a journalist. The Governor didn’t appear to have been briefed and should have demanded that entire issue be nipped in the bud in progress. Even if it didn’t happen, the Health Minister (of all the households) should have volunteered the small fine in solidarity with the CoP‘s mission.

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    • Anonymous says:

      Whilst you make valid points, saying the Premier is “…unelected…” rather undermines the validity of your whole posting.

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      • Anonymous says:

        Nope, the post is about how the Governor is ultimately in charge of the Cayman Islands, not the Premier. Alden isn’t in charge of the Governor, though it seems to play that way. He was not elected to the position he currently occupies. The PPM lost their majority occupational control at the 2017 polls, and it was not returned to them by way of public vote.

  22. Anonymous says:

    He could just as easily have argued that the government has a positive obligation to take steps to prevent avoidable losses of life and if it fails to do that in the current situation it’s violating the rights of anyone impacted by that failure. This is a bit like what happened when he headed the HRC – the human rights issues they pursued always appeared, for reasons we can only speculate about, to have been ‘cherry picked’ headline grabbers.

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    • Anonymous says:

      Go and have a look at the HRC website and see the dozens of issues they dealt with which were ignored by the vast majority of the public and frequently the press.

      Headline grabbers are those stories grabbed by the writers of headlines.

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      • Anonymous says:

        9:45 Dozens of issues? That might have been rather difficult considering how much of the time the HRC website wasn’t working properly. I tried to raise an ‘issue’ with them in 2016 and even their official email address bounced! In the end it took about six weeks simply to get access to HRC and then they just dumped the matter even though it was a clear violation of ECHR Article 6. The phrase they use in the UK for this is, ‘about as useful as a chocolate teapot.’

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    • Anonymous says:

      Did you actually read his legal paper?

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  23. Anonymous says:

    By shutting down most economic activity within its borders, Cayman was and continues spending millions to save a single life without taking into account less intrusive alternative measures.

    While each life is precious, no country can spend whatever it takes to save every life. Societies choose not to stop all economic activity to stop other contagious illnesses, such as flu, cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers or to forgo certain valuable freedoms such as driving to reduce auto accidents.

    Massive economic losses cost lives by reducing incomes, decreasing longevity, and increases in death by suicide and drug overdoses.

    Cayman officials should explain whether they could have implemented other policies that could have reduced the spread of the disease without incurring such massive economic destruction. They must explain how and why they arrived at their decisions.

    In the US&UK considerable authority is given to the Surgeon General, who in turn has delegated that authority to the Centers for Disease Control. The role of public health experts in determining whether particular measures are needed to safeguard against their politicization.

    In the abcense of CDC in Cayman who took the role of public health experts and is their qualification on par with CDC experts and international standards?

    Did Cayman officials consider less intrusive measures, such as quarantining the identified infected and safeguarding the elderly, who are most vulnerable to the illness, instead of imposing a shutdown of the territory’s economy?

    Was any consideration given to the human health effects of the mandatory stay-at-home order, including exacerbation of mental health issues such as depression and anxiety; a predicted increase in domestic violence; suicides by business owners facing debt and ruin?

    Imposing the most draconian suspensions of civil liberties – the rights to travel, congregate, or use property, enjoy due process before the loss of your business or livelihood – this is a good area where the law can step in. Lawsuits could challenge the government to explain itself and to even compensate business losses for panicked decisions.

    The Takings Clause of the Constitution (at least in the US), for example, requires just compensation when the state takes private property for public purposes. If government orders hotel rooms to be converted into makeshift hospital rooms, the states would have to pay the market rate. On the other hand, if the state has to close restaurants that fail health and safety codes, they do not.

    A restaurant or nail salon shut down by the lockdown orders is not inherently a threat to public health or safety. It is as if the governors orders all of these private spaces because people might congregate there and – they believe – spread the virus. If the Governor forbids private property owners from using their land for a reasonable, lawful purpose, it must compensate the owners for sacrificing for the public good.

    In this crisis, property and business owners could claim that the Governor cannot force them to bear alone the costs for achieving a social goal. And at the very least, such lawsuits would force government to explain why the benefits shutdowns exceed their costs, when compared to less intrusive approaches such as quarantines, monitoring, and testing.

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  24. it's about time someone spoke up says:

    Cheers for James Austin-Smith for standing up to government over-reach. More power to you!

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  25. L.Bell says:

    THE DISASTER PREPAREDNESS AND HAZARD MANAGEMENT
    LAW, 2016 defines “disaster as the occurrence of (among others)-
    (g) outbreak of infectious disease;

    it also defines “hazard” as a natural or man-made phenomenon which has the potential to cause environmental damage or economic loss, or threaten life and well-being,
    and may require emergency intervention by the Governor, the Department or
    other appropriate agency;

    It is surprising to see that terms “lockdowns’ and “curfew” have not been defined under Cayman Law but are still being used to curtail the fundamental right of movement enshrined under Article 13(1) of The Cayman Islands Constitution Order 2009. This right is a subject to reasonable restrictions under Article 13(2)(a).

    THE CAYMAN ISLANDS NATIONAL HAZARD MANAGEMENT PLAN http://www.caymanprepared.ky/portal/pls/portal/docs/1/12488356.PDF is a National Hurricane Plan and doesn’t define “lockdowns’ and “curfew” terms either and only speaks of ‘curfews and cordons to be established and stop and search powers to police” (EST 10 – SECURITY and LAW ENFORCEMENT)

    No sections of THE CAYMAN ISLANDS NATIONAL HAZARD MANAGEMENT PLAN deals with epidemics or diseases of any kind and limited to hurricanes.

    It is appears that when the lockdown was announced, its application was not sourced from any law. It is not explicitly provided anywhere that the government has the power to declare something of this nature. It is important for the government to back its policies and decisions with legal provisions as it validates those actions.

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    • Anonymous says:

      The Governor is exercising power, as viceroy, per Health Management Law.

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      • Anonymous says:

        His Excellency the Viceroy of the Cayman Islands – great title – very Raj – too bad it is not found anywhere in legislation that has anything to do with Cayman.

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      • Anonymous says:

        Except that doesn’t cover the hard curfew, which is purportedly under the provisions of the Police Law – except it doesn’t really seem to fit that either. Bottom line is that they are using the Police law for a purpose it was never intended for and ignoring the checks and balances – the l;imitation of curfew to 48 hours, the cordoning to 12 – as a result. They could have just passed emergency legislation giving them the relevant powers, but I guess didn’t think anyone would actually question it. Now with hundreds of people charged no one is going to stand up, admit the curfew needs proper enabling legislation, and do it properly. Be interesting to see what happens if someone charged pleads not guilty on the basis that the curfew was either not founded in law, or that the law was a breach of the constitution. If that got past an initial test on prospects of success, they wold have to stay all the other prosecutions pending the outcome. law

    • Anonymous says:

      I believe this falls under the Public Health laws….

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    • Anonymous says:

      I am as passionate about getting these restrictions lifted as you, but just as a point of clarification, the hard nightly and Sunday curfews, and cordon (prohibiting us from using the beach for the last few weeks) are set out under The Police Law (2017 Revision) section 49. These powers do exist in law, however It’s clear however that appropriate procedures have not been followed and the Commissioner and Governor are avoiding putting anything in writing, as the powers exercised under this section are being used without regard for the clear restrictions set forth in section 49 (which prevent abuse and are critical in protecting our rights)

      Many of the other restrictions, dictating where, when, and for what purpose we may live our lives are set forth in the regulations under the public health law. I suspect these will be challenged in due course.

      It will take time, but once the legal challenges have been made, history will look back on the Premier, the Governor, and the Commissioner in a less than favorable light for their heavy handed approach in dealing with this crisis. If we are loud enough, appropriate safeguards will come into place so the next natural disaster or pandemic will not result in nonsensical laws and restrictions on freedoms.

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      • Anonymous says:

        Look, let’s face it, they seem not to follow the law at the best of times. Try the commissioners definition of public beaches for a start. Made up nonsense. Not his fault, but why have the legal department not corrected him?

  26. Anonymous says:

    Hard Curfew at night, thumbs up.

    When the nighttime Hard Curfew is eased up, how about closing down all gas stations/convenience stores/shops/bars/nightclubs and restaurants at 11:00PM. Is there a real urgent need in our community to have these places open up after this time?

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  27. Anonymous says:

    Can’t wait to listen to the Premier reminding us he is a lawyer before engaging in straw man and ad hominem attacks, followed by the Governor agreeing with everything and anything said.

    The written authorization from the Governor for the curfews far in excess of what is permissible under the law will never be released and probably don’t exist. if you are acting outside of your authority would you want a paper trail when the human rights concerns can’t be brushed aside any longer?

    Also, in an instance of apparent ineptitude, there have been no further amendments which have been gazetted which permits the ticketing of offenses under Prevention, Control and Suppression of Covid-19 (Grand Cayman) Regulations, 2020, (LG38, S1)

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    • Anonymous says:

      current members of the Cayman Human Rights commission seem to also “agreeing with everything and anything said” by remaining silent.

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    • Anonymous says:

      bravo…cannot believe the premier and his nonsensical waffle every day.

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  28. Anonymous says:

    Cabin fever? Read a good book or a few! Feed your shallow minds!!

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  29. Anonymous says:

    Mr. James Austin-Smith, I don’t care what scope your human rights compliance mandate covers but it does not give someone any right to infect me and my family because they, or you, feel that curfews and other social-distancing restrictions infringe their rights. I have a right to life and not to have that life put at risk.

    XXXX (CNS: JAS is a lawyer discussing the law. He’s not the police and not social services. I’m not going to post a list of things you think he should be doing that have no relevance.)

    Let the curfews alone until our Government is satisfied, through science, that the covid19 risk is fully mitigated in Grand Cayman!

    W. McCoy

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    • Anonymous says:

      To quote JAS: “Regrettably, as you will appreciate, two separate issues have been conflated here: first, whether the ‘hard curfew’ is legal and second, whether it is acceptable to scrutinise its legality.”

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  30. Anonymous says:

    CILPA has taken up where the Law Society left off. No consultation with the lawyers it claims to represent, and no willingness to even think about addressing the hard issues. They do not represent me – or many of the lawyers that I know.

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  31. Anonymous says:

    CILPA did you survey your membership?

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  32. Anonymous says:

    I am no lawyer and I don’t understand the legal details here. However if you look at this from a layman’s perspective the authorities went from very few restrictions to some of the most severe in the western world, pretty quickly. It is important to maintain public safety and security, but these cannot overshadow fundamental freedoms for any extended period. Time and again we have seen a pattern of behaviour from the authorities which is troubling at best. Rather than use the powers that they already have to deal with people breaking specific laws on the restrictions in place, they have immediately moved to more severe forms of restrictions claiming that it was unfeasible to use the original powers. Even if this was true in the short term they have kept these restrictions in place for far too long. Case in point was the Sunday hard curfew. There was never a rational explanation as to why this was needed over the extended period it was in place. It may have made their lives easier and saved on overtime for the police but that is not a rationale for imprisoning people in their own homes. It was only lifted when enough people started being more vocal about the fact they were going to challenge the government’s position. They knew they would lose this and it would be embarrassing.
    Even now they are continuing by lifting the restrictions in an arbitrary manner by restricting certain outdoor activities when no valid reasons have been given. Please tell me how you can justify allowing motorised boats to go fishing with multiple people but you won’t let sailboats out with one person! There is no common sense or logic related to how this will improve suppressing the virus and this is the only reason to create any restriction.
    The basic laws aren’t there to allow governments to do what they want and act in an arbitrary manner. They are there to ensure that governments can’t do this! Otherwise we descend into corruption dressed up as favouritism dressed up as a need to eradicate (sorry eliminate) the virus. The governor is now complicit in these decisions by virtue of supporting them without restriction. Who do we have who is actually pushing back here and asking “Is this reasonable and proportional? Can we find a less restrictive way to achieve the same aim?”
    It is commonly accepted that enforcing some restrictions were needed to ensure we flattened the curve, but we have now moved into a different arena. The government have decided to keep the ports closed to guest traffic until September without any idea of whether they could open them beforehand. This is another example where they are making decisions that affect the whole population without taking an incremental approach which would allow them to operate flexibly. Why?
    When this is all done there needs to be an official and (very) independent inquiry about whether the restrictions that the government put into place were correct or whether they could have approached this in a different way. We should not be interested in blame but ensuring that never again are the authorities provided with a blank check for removing freedoms without guidance about what is the right balance.

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  33. Anonymous says:

    no people on earth should ever except a curfew or lockdown measures which restrict your basic rights.
    right now we don’t have life…we have an imposed existence because the authorites won’t do the obvious thing as in ‘protecting the most vunerable’.

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    • Anonymous says:

      The first thing you should do is to learn proper grammar!

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    • Anonymous says:

      If you dont like it you could leave be you Caymanian or not. Go to the UK. Caymanians can work and live there and they seem to have much more freedom. You can do allll the things you claim are being unjustly taken away from you here. And look at what a fantastic state they are in (Heavy sarcasm).

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      • Anonymous says:

        Actually you are wrong. Only full British Citizens can live and work in the U.K. Thousands of Caymanians are not British Citizens.

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        • anon says:

          9.42am Many more thousands are.

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          • Anonymous says:

            Absolutely. My only challenge is to the false and widely held assertion that Caymanians can freely live and work in the U.K. That is simply not true.

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            • Anonymous says:

              Its a matter of semantics. If they were BOTCs prior to 2002 they got British citizenship automatically in 2002, as do their children born after that date. If they became BOTC after 2002 they are entitled to apply for citizenship, and absence some major issue meaning they are considered an undesirable person, will get it automatically. So whats your point – nearly all Caymanians either have citizenship as of right or can acquire it with an application – you try and make it sound as if thousands are being excluded from the right. Not being bothered to submit an application is not exclusion.

              • Anonymous says:

                Most do not have it as of right and many hundreds if not thousands cannot acquire it on application, including because they fail the residence or character tests (or both), or do not have the substantial sums required.

      • Anonymous says:

        Great Britain COVID-19 Deaths 34,636 as of yesterday. My beautiful Cayman Islands none so far. A BIG THANK YOU TO OUR GREAT GOVERNMENT AND OUR GOVERNOR AND ALL THE CIVIL SERVANTS.

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        • Anonymous says:

          Or one could just realize we have a very small population compared to them and people coming and going aren’t like that of in Europe. God you people are helping push an agenda that’s hurting YOU.

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        • Anonymous says:

          and another 30,000 unexplained deaths.

          When you take the average deaths in UK for the last 5 years for the first 4 months of the year and then add the 36,000 deaths attributed to COVID, there are another 30,000 extra deaths, which are highly probable to be COVID as well.

          Remember the didn’t test everyone, and they don’t test dead people, so many in retirement homes or those that stayed home and died are not included in the COVID deaths.

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  34. Anonymous says:

    I was of the impression that the majority of the country were supportive of the governments decisions as it relates to their handling of COVID-19. It seemed as though most people understood the potentially devastating impact the COVID-19 could have on the community.

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    • Anonymous says:

      Yes. That is true. We might even agree with government’s actions. That does not mean they are necessarily consistently lawful.

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  35. Anonymous says:

    James is great. Where are all the other lawyers with brass balls like him?

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  36. Anonymous says:

    James is right.

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  37. Anonymous says:

    Lock up is getting to me too bro

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