If the proclamation of FCO Undersecretary of State Meg Munn has limited the dialogue and debate on a bill of rights to one that must be enshrined in our new and modernised constitution (admittedly a hard pill to swallow), it has become even more imperative that public education frames the issues in clear terms of the potential benefits and hazards of such a bill.
And in that context there needs to be a clear definition of what this Bill of Rights means, in terms of its legal and practical implications.
Despite what is being proposed by the Human Rights Committee, the government has been stressing that any bill of rights will adhere to that, which obtains in most modern societies, that is, one that is defined, in the language of the Right Honourable Sir Harry Gibbs of Australia, ‘In the strict sense, a bill of rights is a constitutional provision, which protects individual rights from infringement by the legislature or the executive. It prevails over, and cannot be amended by, ordinary legislation.’ (Does Australia Need a Bill of Rights, 1995)
This means, as has been reiterated on numerous occasions by Minister Alden McLaughlin and others that a bill of rights will function in the vertical relationship of people vs. government rather than horizontally (individual vs. individual, or group).
Notwithstanding the tension-lessening effect of the Government’s position, it still is vital that we all understand that any Bill of Rights-especially one enshrined in a constitution-is not all cake, cookies and ice cream; there are definite hazards innate to such a bill. I list below some of what I consider to be generally agreed-on pros and cons (not exhaustive by any means) of a bill of rights.
And, in the spirit of the thing itself, it is the right of every Caymanian to understand these pros and cons before they set pen to paper in a referendum.
Some pros of a bill of rights:
A bill of rights would give formal recognition to certain fundamental human rights.
A bill of rights would give further legal protection to certain minorities and the most vulnerable in our society.
A bill of rights would (in theory) protect society from rogue politicians and arbitrary government actions.
A bill of rights would serve as a minimum standard for the formation of laws and the administering of government policies.
A bill of rights would be an image booster for the country vis-à-vis the international community.
Some cons of a bill of rights:
A bill of rights would immediately and continually erode the sovereignty of the legislature.
A bill of rights would politicise the judiciary.
A bill of rights would be undemocratic, by giving unelected judges virtual executive powers and weakening the necessary checks and balances that are fundamental to good governance.
By virtue of the general nature of the language used in statements of a bill of rights, it automatically means that as a piece of legislation it is inherently weaker than ordinary laws, which may contain caveats and conditions that mitigate against heavy-handed execution of the law.
A further weakness of a bill of rights, based on the reality stated above, is that it gives virtual unlimited power to judges to impose subjective interpretations, many of which may be in direct conflict with its original values and intentions.
Finally, it is my hope that by presenting these views the reader will understand that as a minister of the Gospel I am not against the idea of a bill of rights – and certainly not against the view that vulnerable groups and individuals need protection from abuse or neglect by public institutions.
My concern is that we do not naively embrace all the rhetoric about human rights with the idea that a Bill of Rights will automatically make us a better society.
Societies are made up of people, who, as we well know from history (and perhaps personal experience) are capable of acting most atrociously against other human beings, prohibiting laws notwithstanding.
M. Alson Ebanks,
Pastor, Church of God Chapel
Walkers Road and Academy Way