THE PROPOSAL FOR A HUMAN RIGHTS COMMISSION

 By the Reverend Nicholas Sykes  

10th March 2008

INTRODUCTION

Honourable McKeeva Bush, leader of the Opposition, churchmen and women, Ministers of Religion, MLAs, other distinguished guests, ladies and gentlemen -  Good Evening

 

Let me begin by thanking Mr. Bush most warmly for giving me this opportunity to present a churchman’s view on the subject of a Human Rights Commission as a particular manifestation of the proposed Bill of Rights in a revised constitutional document for the Cayman Islands. I hope to share with this assembly some broad considerations about the current proposal and certain details of the workings of similarly named agencies elsewhere in the western world. By these means I will hope to show that the churches in particular, and the people in general, of a society enjoying the benefits of freedom of expression have reason for concern about the proposal, and for the manner in which the Bill of Rights and its related legal and quasi-legal structures are likely to affect us at the deepest levels of our lives. However, let me also add a word of personal introduction. I was born many years ago in England, and have lived in the West Indies, Jamaica and here, for over 40 years, and became a West Indian citizen 33 years ago. I have lived in the Cayman Islands for 27 years, which actually makes this the place I have lived longest anywhere in the world; this is the home of my dear wife and me, and unless the Lord decrees otherwise, this is where I intend to live the remaining years of my life and to die.

 

CAYMAN ISLANDS GOVERNMENT’S PROPOSAL

The Proposal for a Human Rights Commission to be provided for the Cayman Islands is found on page 9 of the Government’s Summary of Proposals for the constitutional revision. In section “G. OVERSIGHT BODIES” it is stated that a revised Constitution should provide a Human Rights Commission to ensure that human rights are being respected, and to assist the bringing of complaints. In the Explanatory Notes that were issued with the Summary, it is stated on page 13 that in addition to the role similar to that of the present Human Rights Committee, the new Commission would (in the words of the Notes) “also help individuals with credible complaints about breaches of human rights by mediating those disputes or, if necessary, help them to bring their complaints to the courts or other appropriate bodies”.  Let me immediately draw this last statement to your attention. We do have an idea how the courts of the Cayman Islands function, and the principles upon which they have historically drawn, and ladies and gentlemen, the court structure did not develop overnight. However, we are here being told that complaints may be brought to what are called “other appropriate bodies” without further explanation, and I will be sharing with you some of the workings of the  “other appropriate bodies” and particularly the Human Rights Commissions elsewhere in the western world, which have been given the function of applying penalties to those complained against. I can assure you that “justice” in the eyes of these newly-conceived bodies has been quite unlike the justice to which we are accustomed. I suspect, though we are not told, that the chief among the “other appropriate bodies” being referred to in the Notes would be an arm of the new Human Rights Commission itself. That is the way it works elsewhere.

 

There are two other points about the proposal which I wish to bring to your immediate attention. First, the Summary states that the purpose of the proposed  Human Rights Commission is  “to ensure that human rights are being respected.” At first sight that seems to suggest that the Commission is taking on a lot more than a handful. Are we supposed to think that the Commission is going to be more successful in changing the behaviour of flesh and blood than all the religions of the world and finally the whole Christian revelation ever have been? Up to now, the Risen Lord Himself has never claimed such success with His erring people. We are to have an agency, it is proposed, that will ensure that we will behave ourselves towards one another. Ladies and gentlemen, there is an old word that has often been used to refer to the idea that we can build human agencies and structures that can perfect humanity and produce the perfect society on earth, and it is the adjective formed from the name for the society conceived in the mind of a philosophical author, and the name of that fictional society was “Utopia”. So the proposal of an agency that can ensure that human rights are respected is a utopian proposal. The only thing we can be sure about in the real world, is whatever a Human Rights Commission does or does not do, it will be unsuccessful in such an aim. Now I know our esteemed friend Mrs Bothwell would like to say that I am being unfair, because the Explanatory Notes do spell it out a bit more, but I will be saying that what the Notes say do not in any way negate the utopian assumption of the proposal, even if they state it more modestly and less blatantly. The Notes say that “the new commission would seek to ensure that human rights (as set out in international treaties to which the Cayman Islands is a party, as well as in the new Bill of Rights), are respected.” Ladies and gentlemen, this is saying, first, that the commission will seek “Utopia”, and secondly, that the measure of Utopia is conformity to the international treaties and to the Bill of Rights. But I will say further that the aim of all this was honestly, if less guardedly, set out in the Summary.  It has to be seen as an example of the traditionally recognised benefits upon populations of the spiritual and moral uplift of Christian faith being assigned in the post-Christian world to the powers of a secular institution.

 

The second point about the proposal which I need to bring to your attention is something that is fundamental to the way the whole system operates, and that is its utter one-sidedness. The function of the commission and any related “appropriate bodies” is to assist the complainant, to “assist” the bringing of complaints”, to “help individuals with credible complaints about breaches of human rights”. Ladies and gentlemen, I need hardly point out to you that a complaint may even be very credible, but turn out to be groundless or otherwise not justifiable. What about the other side of the issue? The literature given to us does not dignify the one being complained against with a description. Let me call him the “defendant”. All the assistance goes to the complainant, but where is the assistance given to the defendant? Well, it turns out elsewhere, that the one-sidedness that we see in the proposal, is regularly brought to effect in the same manner on the ground, in the actual functioning of these bodies, and I shall be providing examples of this. The system is one-sided, and in this matter alone, is offensive to a reasonable person’s sense of justice. A true court looks after the interests of both sides, not just one.

 

THE HUMAN RIGHTS CONCEPT

Now let us dig a little deeper than the actual proposal itself for a Human Rights Commission. It is not the core of the problem that this proposal is utopian, nor that this proposal is written in a utopian sort of way. These things are, importantly, the case, but the core of the problem is in the Human Rights concept itself. “Human Rights” is a characterisation of Rights that is relatively new, and one that makes a statement. One of the older constitutional statements with which we are familiar – you may recognise it – refers to man’s “unalienable rights bestowed upon him by his Creator.” The concept is clearly that man’s rights, just like his relationships and his responsibilities or duties are, in an essential way, of divine origin. So to alienate man from his rights thus bestowed is an offence against God, just as it is arbitrarily to sever him from his relationships or to remove his responsibilities.

 

More modern descriptions of rights, however, erase God from the picture. The change did not happen altogether suddenly, but by degrees. For instance, one of the earlier United Nations conventions was given quite a bible-friendly title – The International Covenant on Civil and Political Rights. And even now in the U.S. we hear more of “civil rights” than we do of “Human Rights”. The older term does at least allow us to consider that rights are conferred upon individuals by a Higher Power. I suggest to you, however, that the term “Human Rights” has the effect of separating us from such a concept. Human Rights are not perceived as necessarily conferred by God, but are conceived rather, as an intrinsic property of humanness. Indeed, in this new view God Himself is obliged to be conformed to the demands of Human Rights, because their rightness, as well as being an expression of human dignity, is seen in absolute terms, and human morality, traditionally understood to be our love for God and our neighbour, is replaced by conformity to human conventions.

 

Let me remind you of the  solemn verse 5 in Jeremiah chapter 17: “Cursed be the man who trusts in man and makes flesh his arm, whose heart turns away from the Lord.” It is clear that if we or any society consider Human Rights, having replaced the divinely covenanted rights to us, to be the measure of what is absolutely right, our hearts have been seduced away from the Lord to a human measure, and therefore we have been brought within the sphere of this solemn curse. This will play out in practice, not only to affect those of us who have a theological turn of mind, but to affect all who have a true concern for justice.

 

DESIGNING A BETTER CHARTER

You might ask me, Is it possible to construct a Bill of Rights in a revised Constitution that would preserve the nature and language of Rights as divinely bestowed, at least in the way that the American constitution seems to do to a considerable extent?

 

In principle this could be attempted, but as yet we are very far away from making any such attempt that would conceivably be adequate. What might encourage us to make some such serious attempt is, perhaps surprisingly, a scheme that has the backing of both Prime Minister Gordon Brown and Jack Straw, a senior member of the Labour Government Cabinet, who have both spoken at length on the need in Britain for what they are calling a “Bill of Rights and Duties.” This is particularly significant because it arguably shows they have come to recognise that what has occurred in Britain under the international agreements and the Human Rights Act has done harm to Britain – and broadly speaking the Human Rights Act is similar in concept to what the Foreign Office would like to see in place here as a Bill of Rights. Personally, I would go further and say that the social experiment in human rights that Britain and European countries have engaged in has been an unparalleled disaster for them. Whether Gordon Brown and Jack Straw wake up at 3 o’clock in the morning sweating over this I don’t know. They might not want to admit it, but this new effort on their part, which at least seeks to balance rights with duties, restores some of the conceptual nature of Christian covenant. We in the Cayman Islands should insist on such a balance as being essential to any charter of Rights, Relationships and Responsibilities that we might wish to codify for the Cayman Islands. It has historically been part of the genius of this community to hold back from social experiments that later prove to be disastrous in other jurisdictions, which is why we honour the memory of Dr. Roy McTaggart. I am putting to you tonight that to insert into our constitution the type of Bill of Rights that has failed other jurisdictions, and to seek to enforce it with a Human Rights Commission, following the horrific examples elsewhere that I will outline to you, would decisively and tragically contradict the traditional genius of this community, and would disqualify us from making the contribution we are capable of making to the western world.

 

FLAWS OF HUMAN RIGHTS COMMISSIONS

So let me return once more to the proposed Human Rights Commission, which I am arguing does not take into account that human motivations, laws and judgments will for ever in this world be imperfect. Wisely the older democratic structures of western society forgo the ideals of utopia. Courts are content to judge cases on the basis of codes that are handed to them, and generally to presume innocence before guilt is proved. In contrast to this, the Human Rights Commissions and Tribunals and other Commissions of various names but similar character in many places of the West do nothing of substance to protect the defendant from the complaint. He has to look out for himself, and often does so at great personal cost, and with great frustration, because procedures are made up as one goes along, and emphasis is being placed more on the motives than the actions of the defendant.

 

Over a process of many years, western society decided to put up with freedom of expression, not because it is always pleasant – for it isn’t – but because the alternative is worse. As David Warren wrote in the Ottawa Citizen in December 2007, “We’d rather cope with free speech, than with the free intimidation that results from its suppression.” But, as Warren reports in the same medium, there is a case brought against Mark Steyn and MacLean’s magazine before the Human Rights Commission for Canada and simultaneously before the Human Rights Commissions for the provinces of British Columbia and Ontario by the Canadian Islamic Congress. The first two Commissions have already agreed to hear the case, and thus rule on whether Mark Steyn had the right to express the opinions and beliefs he did in his bestselling book America Alone. According to the complaint, by expressing his opinions and beliefs, Mark Steyn “subjects Canadian Muslims to hatred and Islamophobia.”

 

Warren says that for more than 20 years he has been writing against the Human Rights Commissions, which have quasi-legal powers that should be offensive to the citizens of any free country. In them the defendant’s right to due process is withdrawn. They reach judgments on the basis of no fixed law; and by simply agreeing to hear a case, they tie up the defendant in bureaucracy and paperwork, and bleed him for the cost of lawyers, while the person who brings the complaint, however frivolous, stands to lose nothing.

 

In one case that has recently come to light, a publisher, Ezra Levant, has been interrogated in January 2008 for 90 minutes by a so-designated “Human Rights Officer” of the government of Alberta. He told her that even if he were acquitted, he would stand to lose hundreds of hours and tens of thousands of dollars in legal bills. Whatever the outcome of the inquisition, he would lose. The inquisition took place in light of the fact that two years before, Levant had published the Danish cartoons of Mohammed in a Canadian magazine. The Alberta government wished to enquire into his intent and purpose in publishing the article so as to determine whether or not he was “guilty of a hate crime”.

 

In a free society, as Mark Steyn has pointed out, justice must not only be done, but must be seen to be done. He reports that when you see what is being done by the Canadian Human Rights Commission it’s hard not to conclude that the genius of the English legal system – the balance between prosecutor, judge and jury – has been all but destroyed. Now, in three decades of the Canadian Human Rights Commission’s existence, not a single defendant has been acquitted. Steyn asks: “What kind of countries have tribunals with 100 % conviction rates, that replace the presumption of innocence with the presumption of guilt and in which truth is not only no defence but compelling evidence of that guilt?”

 

Another shocking revelation about the functioning of the Canadian Human Rights Commissions is that over one-half of all cases under Canada’s infamous Section XIII defining hate crimes have been brought by a sole “complainant”, one Richard Warman. Warman has been a plaintiff in every single such case before the federal Commission since 2002 – and he’s won every one. And who is this supposedly much-offended Richard Warman? Why, he’s a former employee of the Canadian Human Rights Commission!

 

Ladies and gentlemen, with a Human Rights Commission, the operation of any Bill of Rights can seriously diminish the necessary checks and balances of a society once democratically governed by the rule of law. It might not happen immediately, but one day a pastor in a church or a teacher in a school in the Cayman Islands will see some unfamiliar person taking notes of what he is saying. Whether or not this is an agent of the Human Rights Commission he does not know, but he will be aware that if anything he says could be taken to cause offence to a minority group such as homosexuals or Wahabi Muslims, he could be summoned before the men and women in suits to explain himself; for someone anonymous to him has complained to them about him. It is very possible that what he was saying did indeed have the potential to cause offence. Perhaps he was pointing out that there was a study in 1994 comparing the obituaries in U.S. homosexual journals to the obituaries from conventional newspapers. The study, he might have taught, showed that the median age of death for homosexual men was about 40, while for married heterosexuals it was 75. The recounting of such findings could cause offence to some. Or perhaps the pastor or teacher was comparing the number of terrorist killings that took place in the first decade of this century comparing Muslim with non-Muslim assailants. That too could cause offence to some. So might the exposure that Islamics are winning over the western world by immigration and propagation in societies whose population otherwise is rapidly declining. So, for that matter might the statement that Jesus Christ is the Son of God and the Light of the world be offensive to some and the subject of complaint. You cannot prove that you did not intend to offend someone who feels offence at what you have said. Also, it is only individuals who can lay claim to being “historically marginalised” that Human Rights Commissions may normally advocate for. Therefore many, if not most cases before various Human Rights Commissions are explicit attempts to marginalise the expression of traditional Judaeo-Christian thought, morality and ethics.  Since Christianity has been the historically dominant ethos in this society, just as it has been elsewhere in the West, ladies and gentlemen, if a Christian is brought up for offending a homosexual or a Muslim, he’s toast. A complainant in a Human Rights case only needs to claim he is being offended or felt threatened – the very claim is nearly always enough to elicit a conviction.

 

The power given to the Commissions to fine those deemed guilty is considerable, and Human Rights Commissions can order defendants to undergo “sensitivity training” against their will, and order them to apologise for their thoughts (even) and their speech. Some such thing has happened to the Bishop of Hereford recently in England, just as it has happened in several cases in Canada. It might not happen the day after the new constitution comes into force in Cayman. But unless Cayman people decree otherwise in very short order, happen one day, and happen repeatedly, it surely will.

 

Now I want to close by referring to something that Lord Anthony Gifford has pointed out in his Government-sponsored lecture here on the 31^st January under the auspices of the Cayman Islands Human Rights Committee. He points out that the Human Rights Act in the U.K. is, as he puts it, “only an element in a vast international tapestry of human rights instruments.” The same would certainly need to be true for any constitutional Bill of Rights or Human Rights Act that might be approved for the Cayman Islands, no matter how far such a document might be taken to go in the direction of “Caymanisation”. Whatever it looked like, it would have to function as a kind of open door juridically speaking between our society and what Lord Gifford called the “vast tapestry of human rights instruments”. If the door were not sufficiently open, our negotiating partners in the United Kingdom would refuse it, and we would have to produce an instrument that opened the door sufficiently, for them to accept it. Now in 2004 the then Cayman Islands Government in a Policy Paper stated this:- “The Cayman Islands Government represented by a senior member or senior members of the Cabinet should engage in those international bodies and groupings that affect the Cayman Islands. We have some strong objections to the way in which the British Government approaches the application of international treaties to the Cayman Islands …” Well, unfortunately there would have been no change in the methods of application of the international treaties to the Cayman Islands since then, and arguably the whole process has been accelerated by an action in early 2006 which was done with the consent of very few individual leaders and without any widespread local knowledge at the time. It should therefore be a very worrying matter that any Bill of Rights that is approved for us now will be principally measured by our negotiating partners for its ability to open up the pathway to the international treaties – the same treaties for which such strong objection was made to the methods of their application  to us by the highest authorities of Government during several years of this decade.

 

To sum the matter up, the current western paradigm of Human Rights jurisprudence and its enforcing agencies of Human Rights Commissions, no matter what the appearance of any local Bill of Rights might be, will be to all intents and purposes the same, wherever you go. If you perceive Human Rights Commissions and similar bodies to be unjust in the U.K. and in Canada, you can be sure that they will be unjust here, while yet clothing themselves with the language of rights and justice, because they are all operating under the same flawed paradigm. The only light at the end of the tunnel, so far as I can see, is the tack taken by Gordon Brown and Jack Straw in attempting to write a Bill of Rights and Duties, which by its title appears to belong to a paradigm at least somewhat different from the first, perhaps indeed, one that is less flawed than the current one. The very least thing we can and ought to do is hold off from going down a path proven to be destructive to churches, schools, the Christian heritage of our civilisation, and our freedom of thought and expression, and wait for the better way to be unfolded to us.