The Cayman Ministers’ Association issued its Draft Position Paper on Cayman Islands Constitutional Modernisation late last week.
In the 14-page document, CMA reluctantly accepts a Bill or Rights enshrined in the Constitution, but opposes the establishment of a Constitution-backed Human Rights Commission.
CMA stated it understands the importance of the constitution to the country, saying it will affect present and future generations of Caymanians and residents.
‘It is therefore incumbent upon us to do all within our power to ensure we get it as right as we can, by learning from the wisdom, research, success, failure and experiences of others,’ the position paper stated. ‘As a people we must take our responsibility seriously, grapple with and resolve any outstanding or contentious issues that would potentially and profoundly change our society in ways that were unintended or unexpected.’
CMA said it is aware the UK Government has told the Cayman Islands Government that the new constitution must contain a bill of rights.
‘While we are aware of the political arguments as to why the UK itself did not enshrine its own Human Rights Act in the constitution – because [it does not] have a written constitution – we were disappointed to learn that we in effect were prevented from having meaningful dialogue locally on the benefits of having an act such as in the UK versus a bill enshrined in our constitution,’ CMA stated. ‘There is strong local support among the general populace for a separate law. It appears to us as if our own human rights have been infringed upon as a people in being denied the right to have full, fair and open public discussion as to the merits or otherwise of this important issue.’
CMA’s contention is that a bill or rights enshrined in the constitution would give the courts the ability to override the wishes of elected legislators.
‘While the Legislative Assembly is not the source of the rights of people, it must be in a position to protect and uphold those rights and the dignity of its people,’ the CMA position paper stated. ‘Experiences in some other jurisdictions clearly suggest that judicial and social activists and vocal minority groups often drive the human rights agenda and impose misplaced, and in some instances, harmful concepts and lifestyle choices on the general public which may not be supported by the majority.’
CMA noted that the UK Human Rights Act includes provisions for the Crown to intervene in court proceedings if the court is contemplating making a declaration of incompatibility between any legislation and human rights convention.
‘If the UK insists on the Cayman Islands enshrining a bill of rights in our constitution, then we believe that our bill of rights should contain a similarly drafted provision for such a declaration instead of permitting the Cayman Islands judges to override the duly elected Legislative Assembly and strike down or modify Laws,’ CMA stated. ‘Almost all judges in the Cayman Islands are from other jurisdictions, which makes this matter even more important to our people.’
CMA noted that concerns have been expressed that the legislature should not be able to easily change or amend Human Rights Law and therefore undermine its objectives.
‘We suggest consideration of a provision to the effect that any amendments would require a special majority of the legislature or a referendum on the specific issue.’
Rights and responsibilities
CMA supported the concept of human rights and that the essence of all human rights comes from God. They also believe, however, that with rights come responsibilities.
‘We are… aware of the discussions currently taking place in the UK and elsewhere on the desirability of establishing a bill of rights and responsibilities or duties,’ the position paper stated. ‘CMA is heartened by these discussions, as we firmly embrace the undeniable need to balance an individual’s rights with responsibilities because few rights are absolute.
‘We all have a responsibility to respect the rights of others, observe the law and accept the burdens and sacrifices demanded for the common good.’
Horizontal rights application
In its Revised Proposals for Constitutional Modernisation, the Government stated a bill of rights would only apply vertically, which means it would only bind government and its institutions and public officials, and not individuals or private entities.
CMA supported having the bill or rights apply only vertically, but it is concerned because the current draft Cayman Islands Bill of Rights does not, in its view, appear limited in its application to only government and its entities.
‘The bill of rights contains no such limitation with the exception of clause 14(2),’ CMA stated. ‘It follows that there is no restriction to vertical rights only as opposed to horizontal rights.’
CMA calls for the limitations in a bill of rights to be clearly stated in an amended bill of rights.
‘[A] clause should be included to the effect that human rights are enforceable only vertically by individuals against public authority and not horizontally against any other individual, body or association,’ CMA stated.
Schools and churches
CMA stated a bill of rights should contain express exemption for schools and churches.
‘We contend that our schools, including those receiving government grants, play an important role in relieving pressure on our public school system,’ CMA stated. ‘Given the historical development and important role of our schools in Cayman society, they should not be forced to change their religious doctrines, beliefs or principles contrary to the principles of the particular school or church.’
CMA also stated that, those who choose to join a particular school or church – whose doctrines and practices are well known and established prior to their joining – should not be able to prevent that school or church from freely promoting its teachings.
‘The freedom of expression and religion is extremely important and we have no desire to see these rights or freedoms to practice our faith limited or become a battleground for unnecessary litigation,’ CMA stated.
Delay in implementation
CMA stated the bill of rights should not come into effect until a minimum of 24 months after a new constitution is in place in order to allow proper planning and funding for training.
‘We remain concerned at the lack of education and discussion to facilitate a new environment once a bill of rights is brought into force,’ CMA stated. ‘We remain unaware of discussions or plans to train our police, prison and immigration officers, family services, court personnel and judiciary, etc… as well as on the need to set aside funds for such training…’
Human Rights Commission
Although it would prefer the constitution not establish a Human Rights Commission, if there must be one, CMA wants its role clearly defined and for it not to have quasi-judicial powers.
‘CMA has more concerns with the establishment of a Human Rights Commission than with almost any other constitution modernisation issue,’ it stated. ‘Ideally we would prefer that no provision for [a] HRC be made in our constitution because we believe that, howsoever its role is limited, [a] HRC will constantly seek to stretch its boundaries and increase its powers, as history has proved in some other jurisdictions.’
Should a Human Rights Commission get constitutional backing, CMA would like to see its role restricted to education and the promotion and protection of human rights in the Cayman Islands.
‘We are aware that the present process of bringing disputes before the Grand Court is far too lengthy and delayed for the hearing of [human rights] disputes or complaints,’ CMA stated. ‘Ideally, we would like to see a simplified and fast track process in the Grand Court to deal with these specific matters.’
CMA outlines several other positions on constitutional modernisation in its position paper, which also includes the comments and positions of many prominent people in government throughout the Commonwealth.
Other positions CMA takes include: That human rights violations not be compensation base to avoid potential frivolous lawsuits; that the language in the bill or rights be simplified as much as possible; and that the final Constitution be subject to ratification by the people through referendum.
To view the Cayman Ministers’ Association Draft Position Paper on Cayman Islands Constitutional Modernisation in its entirety on-line, a link has been established at: www.agapecayman.com.