The constitutional battleground

George Town (CNS): Although issues such as the
balance of power between the elected and non-elected members of the
government and single member constituencies have been widely debated
at many of the constitutional public meetings over the past few
months, it is the Bill of Rights, which has, time and time again,
proved to be the subject that has dominated the constitutional road
show. With the open public consultation period now at an end and the
creation of a proposed document ready for referendum imminent,
regardless of the government’s confidence, it still has a long way to
go to win over hearts and minds for an enshrined Bill of Rights.

Whatever the feelings of the PPM or even the silent majority over this
bill, the church has been vociferous in its opposition to enshrining
rights in the constitution and, moreover, has a very high degree of
influence over a large number of people. Pastors, reverends, church
ministers and priests have significant power and their opinion is one
the government must win over if it is to safeguard human rights for
the population at large.

The importance of how the Bill of Rights is formed was highlighted at
a meeting held at the Family Life Centre in Walkers Road on 26 March
with members of the Cayman Ministers Association (CMA). Literally
hundreds of people showed up to voice their concerns over the issue,
by far the biggest turn out for any of the constitutional forums.
While the numbers alone illustrated how suspicious the community is of
“rights”, the meeting also revealed that the battleground for the
constitution would be in the pulpit and not the political arena.

There is little doubt from the evidence of the public consultation
period that the government must now secure the support of the church
community in order to get a ‘yes’ vote in the forthcoming referendum.
However, with only a few months to go before the country’s 14,000
voters go the polls to offer their opinion, the church is still a long
way from being convinced that Cayman needs a Bill of Rights.

Reverend Nicholas Sykes from St Alban’s Church and a prominent member
of the CMA says he believes there simply has not been enough
discussion regarding how Cayman deals with this issue.

“Unfortunately, the idea of having the Bill of Rights in legislation
rather than enshrined in the constitution seems to have simply been
dismissed, and I do not think there has been enough public discussion
about this option,” he tells CNS.

Sykes is not alone. Most of those in the church community have
significant doubts about how Cayman deals with human rights. Sykes
also admits that while he and his colleagues do not necessarily tell
their congregations what to do, the people of Cayman are more likely
to listen to their church ministers than their political ones, and as
such Sykes and his colleagues have considerable influence over those
that come to worship in their churches. Sykes says it is important to
use that influence responsibly but he has no reservations in answering
the queries of his flock, and he says if the final proposals do not
address his concerns, he will advice his congregation accordingly.

While government Ministers, in particular the Leader of Government
Business Kurt Tibbetts and Education Minister Alden McLaughlin, have
said they believed they had allayed the fears of the church and can
move forward with a Bill of Rights that will satisfy their concerns,
there is some disagreement with that position from the church
ministers. Sykes says that if the government thinks that CMA is on
their side regarding the idea of an enshrined Bill of Rights, it is at
the very least overstating the matter.

However, McLaughlin believes the government can and will reconcile the
differing opinions before the referendum. “We are confident we can
develop a Bill of Rights which will meet all the major concerns,”
McLaughlin said recently.

Pastor Bob Thompson, Chair of CMA, says that while he was happier that
government was at least talking to the church and taking their
concerns seriously he still feels that the Association had not
necessarily been won over to the government position.

Unless the Bill of Rights was written in such a way that would satisfy
their major concerns, he says he would still be against a ‘yes’ vote
and is still more comfortable with rights being laws rather than
enshrined in the constitution.

“If we must have this in the constitution document, we have to get the
wording right in order to avoid the unintended consequences that can
arise from the interpretation of rights, as has already happened in
some jurisdictions,” says Thompson. “We need to be very wary of rights
without discussing responsibilities, and we have concerns about the
Human Rights Committee that will oversee this. They are setting
themselves up as a quasi court, they should be there to advise and
help people to understand rights, but not to make rulings.”

The Human Rights Committee (HRC) told CNS that it is not a court but
an advisory body, there to help people peruse the right legal channels
to protect their rights. “The HRC envisages that it can play an
important role in the resolution of concerns involving human rights,
providing informed opinions and the making of recommendations in
respect of complaints received. In addition, if human rights are to be
enshrined in the constitution, the HRC should also be able to assist
individuals in enforcing these rights under a new constitution. The
feedback that the HRC has received from the public has indicated that
this type of assistance is both welcome and necessary,” said the
Committee.

The HRC also noted how important enshrining rights is, as oppose to
having them enacted in law.  “If the Bill of Rights is simply
created as an ordinary law, there is a real danger that it can be
altered or repealed relatively easily by the legislature,” said the
Committee. “This means our so-called ‘rights’ might be redefined or
changed after every election. Moreover, the rights will also be
vulnerable to gradual or potentially inadvertent erosion unless the
legislature remains continually vigilant and focused on how new laws
impact upon individual rights.”

However, it is exactly for that reason that the CMA wants the rights
in legislation and not in the constitution. Thompson, Sykes and other
members of the CMA believe that enshrining rights will lead to
arbitrary judgments that could undermine the local community’s morals
and cultural particularisms.

“Having these rights enshrined leaves it to the judiciary to decide a
rights case, as oppose to our elected officials in the legislature,”
said Sykes, who believes that having the balance of a decision resting
with judges could have unintended consequences.

“You can adjust a law in the legislature but it is very difficult to
change a constitution. While rights are enshrined in law there is room
for conversation about how they impact society,” he added. “We really
need to have a balance of power when it comes to our ethics and morals
that rests with the legislature and not the judiciary, which could
ride roughshod over what the people had intended.”

However, human rights advocates would argue that very point
conversely: if the judiciary cannot make rulings based on enshrined
rights then the people cannot be protected from the legislator – aka
the government, which is the fundamental principal behind a Bill of
Rights.

The HRC also recommends enshrining the Bill of Rights directly into
the Cayman Islands Constitution to ensure that human rights take
precedence over potentially conflicting ordinary laws and, the
Committee told CNS, it is important for the country to ensure that all
future laws take proper account of fundamental human rights before
being passed by the legislature.

The representatives from CMA remain unconvinced, and aside from their
concerns over same sex marriage, Sykes believes that Cayman’s
Christian heritage could easily be undermined if we were to enshrine
certain things into the constitution because of how they could be
interpreted at a later date.

“We could see Sunday closing, prayer in school and many other elements
of our Christian society lost if rights are enshrined,” Sykes warns.

He says there are numerous examples in Canada where the intentions of
the legislatures when they drew up the constitution are now being
distorted by rulings in the court. He says this evidence has not been
put before the people of Cayman, and that we need to look more closely
at this and many other issues before the people face a referendum.

“We also need to find a way of preserving our Christian culture within
a future constitution that will prevent judicial rulings from
undermining that position,” he says. Although Sykes maintains he is
not advocating a Christian theology, he insists that there is a way of
protecting Christianity as the country’s religion.

Thompson also says he wants to see Christianity enshrined as the
dominant culture in some way. He agrees with the principle of the
freedom to worship, but he says, the intolerance of some religions
would make it difficult to allow those people to worship freely. He
also believes Satanism should be against the law and that the
“fundamentalism of Muslims” made it difficult for Cayman to welcome
the idea of mosques. Furthermore, he says that allowing religious
freedom would make it hard to preserve the local Christian heritage.

“We have to define religious freedom. We don’t want the society to
become anti-religious. We have to choose the wording carefully so we
can preserve what we are,” Thompson adds.

The recent controversy over the law and the now infamous kiss that
occurred in public between two visiting gay tourists illustrates how
ambiguous legal language can be open to various interpretations. Many
here believed that when the laws against homosexuality were repealed,
they were only done so for acts committed behind closed doors.
Furthermore, although the penal code sates that: “Whoever publicly
does an indecent act or, whoever in a public place conducts himself in
a manner likely to cause a breach of the peace,” is committing an
offence, whether or not a kiss constitutes an indecent act is
certainly open to interpretation.

When Professor Jeffrey Jowell QC, a constitutional legal expert from
the UK, visited Cayman recently he tried very hard to reassure CMA
that a Bill of Rights would not affect prayer in school, what the
church could preach from the pulpit, or enforce same sex unions.

However, CMA remains unconvinced because they believe interpretation
in the hands of lawyers would spell the end of certain values they say
Cayman holds dear. Thompson says that, as yet, no one has been able to
defend themselves against breeches of human rights in Canada, and in
every case the judiciary has ruled in favour of the person bringing
the human rights complaint. Therefore, he has serious concerns that
with an enshrined Bill of Rights this could happen here too.

Whether the misgivings of the church are well founded or not is, at
present, less important than the power of the pulpit. Even though CMA
has made more conciliatory noises to government in the last few weeks,
Sykes is not the only member of CMA that has very serious reservations
about guiding his congregation towards voting ‘yes’ to rights
enshrined in the constitution. He and Thompson, as well as many other
members of the church community and lay people continue to voice their
desire to see Christianity enshrined in some way in the constitution.

The difficulty for the government on this issue is that the demands of
CMA will not be easy to reconcile with the UK government. There are a
number of issues on which the British government will stand firm, and
human rights, such as religious freedom, that are considered be
fundamental will be virtually impossible to “Caymanianise”, as has
been suggested.

Jowell noted recently that no one could force anyone to worship in a
specific way and that Christianity could not be forced on society or
enshrined as the only way to express worship.

“I’m sure you don’t want a Christian dictatorship,” he said at the
March CMA meeting. “You cannot impose religion on someone. Freedom of
conscience and freedom of speech protect faith, but you can’t force
your will or discriminate against other faiths. Freedom of expression
is very important. Do you want to suppress all views?”

Moreover, as the opposition United Democratic Party prepares to take
its constitutional proposals on the road at the end of this month with
a similar stance to the church regarding the Bill of Rights,
government faces an uphill battle to persuade the people of Cayman
that enshrining rights in the constitution will not pull the rug from
under their perceptions of what it means to be Caymanian and above all
not undermine the Christian culture.

Rightly or wrongly, winning support for the Bill of Rights at present
remains in the hands of religious, and not political, ministers.

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