2003 Cayman Islands Bill of Rights (proposed)  - Part 1. Fundamental Rights and Freedoms of the Individual – Notes for consideration by the Cayman Ministers’ Association, other interested parties and the Cayman Islands Government by Rev. Nicholas Sykes – May 2008.

 

(A) Section 1. Fundamental Rights and Freedoms of the individual

 Note: Last line includes a “horizontal” application of the right. If we are consistently applying “vertical rights” only this should read:

 “…such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the public interest..”

 [And, after all, this first section defines the intent of the whole Bill of Rights]

 

 (B) Section 5. Protection of Right to Personal Liberty  is unclear to me in distinguishing the treatment of offenders of the law from the treatment of offenders who are of unsound mind.

  

(C) Section 6. Provisions to secure protection of law

 Note: Part (10) may be held to authorise the setting up of Human Rights tribunals. (There are various other tribunals set up by law that are indeed independent and impartial and that follow the rule of law, but personal complaints bodies that hear complaints on the basis of persons’ feeling personally aggrieved seem not to be among these.)  I suppose Vertical-only rights, if this limitation is accepted, would prevent them from being authorised. Can this be clarified?

 

(D) Section 7. Protection of right of prisoners to humane treatment. Part (3) appears to contain a drafting error. In the last clause, “… to have any criminal proceedings against him pursued …” should be corrected grammatically to read,

 “…shall have any criminal proceedings against him pursued with the greatest possible expedition.” [One wonders if there are any teeth in this provision however.]

 

(E) Section 8. Protection for private and family life and the privacy of home and other property.

 Part (2)(ii) While this clearly refers to a “horizontal” application, this is an application of any “law in question” referred to in part (2), not an application of the Bill of Rights, and therefore might arguably be retained consistently. On the other hand, its recital in the Bill of Rights does give constitutional sanction to the “horizontal” application in question. Taking the safest view to eliminate the directly “horizontal” application, which will be more important elsewhere in the Bill if not so important here, it could read, “(ii) for the purpose of protecting the public interest.”

 

(F) Section 9.  Protection of the right to marry etc.

  Judging by the course of events in post-Charter Canada, it is this Section, along with Sections 10 and 14, that seemingly should receive  the closest scrutiny. [The Charter is silent concerning the right to marry.]

Part (1). Although this protects the right  “to marry a person of the opposite sex …” it would not of itself prevent homosexual marriages or homosexual civil partnerships occurring if they became lawful. Such laws might be held to be mandated constitutionally by Part (3) as it stands. Part (3)(c) should in any case be changed to “for protecting the public interest” for reasons indicated above.

 However, Government has (by accounts received) decided NOT to clarify the Marriage Law as the CMA had requested, but was intending to leave that clarification to the Bill of Rights. But it is important to note that (if I am correct) Section 9 as it stands does NOT clarify the matter. So as things stand, the matter is left entirely open, it seems to me, regulated neither by the Marriage Law (as interpreted liberally) nor by the Constitution.

 It appears that the safest course would be to amend the Marriage Law as requested by the Cayman Ministers’ Association. Then there would be lawful regulation of marriage as specified by Part (3)(b), with “the procedures and modalities of Marriage” remaining under the control of the legislature.

 The CMA amendment was proposed, as a definition of Marriage that:

  “”marriage” means the legal union of a man and a woman as husband and wife to the exclusion of all others, voluntarily entered for life”.

 Section 9, if such a law amendment is not passed, would not protect marriage as that between a husband and a wife. (Civil partnerships would require a law to for these to be created.)

 

(G) Section 10. Protection of Freedom of Conscience.

Part (2) might be made more practicable from a school’s point of view if it is stated that “consent” may be assumed unless due and reasonable notice of non-consent is offered by the person or his guardian.  CAREFUL DRAFTING REQUIRED. Normally it would be expected in a denominational school that enrolment implied consent, and perhaps that expectation could be drafted in.

 

(H) Section 11.  Protection of Freedom of expression.

Part (2)(a)(ii) refers to a “horizontal” application and though it would seem hard to remove it, to be consistently “vertical”, one would have to amend the clause to

 “for the purpose of preventing the disclosure of information received in confidence …”

 

(I)Section 12. Protection of freedom of assembly and association

 Again, to be consistently “vertical”, one would have to remove Part (2)(a)(ii).

 

(J) Section 13. Protection of Freedom of Movement

To be consistently “vertical”, Part (2)(a)(iii) would have to be removed.

 

(K) Section 14. Protection from discrimination on grounds of race, etc.

 We should note that anti-discriminatory laws form the weak link in the battle to preserve longstanding ways of life and generally approved practices. In Canada the list for which discrimination was made unlawful under Section 15 of the Charter is “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” In our Bill of Rights Section 14 the list is “race, place of origin, political or other opinion, colour, creed, sex or mental or physical ability. In neither constitution is “sexual orientation” listed. “Homosexual rights” were deliberately excluded from the Canadian Charter, at the time of its promulgation in 1982. Yet in 1995 the Supreme Court of Canada read in such rights to Section 15 and applied them vigorously since that time. How can this be prevented, especially as in some quarters the “two sexes” are replaced by a multiplicity of “genders”?

 The Canadian process is hugely relevant to our situation, because there has been a steady stream of judicial decisions there that have brought the country to the position that law, culture and religion itself must adapt to the demands of homosexual activists. It is hard to maintain a position that a similar process would not be inevitable here under a Bill of Rights like the 2003 Bill, even though the architects of the Bill may specifically have tried to guard against it.  The question that must be asked: Is there ANYWHERE in the world that has been successful in stanching this process? 

The Cayman people absolutely demand that we find a way, however. Can the list (above) be rewritten to cut off the possibility of expansion into the homosexual area?

 If not, we must reopen the Law option as preferred to the Constitutional option. Then such things will be a matter for the legislature, and people can make their input.

 Finally, we must recognise that UK lawyers (in contrast to Canadian lawyers) do not have first hand knowledge of this process occurring in their own country, because, while other processes have occurred which may appear to give similar results, this particular process has not; for up to now they do not have a Bill of rights enshrined in a written constitution. It is not likely that Ms. Meg Munn or the FCO have really taken this situation on board in their thinking. We, however, have no excuse for wearing the same blinkers, and the Cayman people would not forgive any Government that did.