What is a Constitution in Modern Times?
Striking the Balance in a Bill of Rights Charter - Part 2
Previously, I put forward the suggestion that Caymanians should consider investing in a “policy of bill of rights”. Perhaps a more accurate suggestion might be that we should invest in a Bill of Rights Charter that best suits us as a country having regard to obvious limitations.
Having had the benefit of experiencing a constitutional review in 2001, we as a country are now fully aware that negotiating constitutional reform without a Bill of Rights Charter is unlikely. A reminder of this may be found in the statement issued by former Governor Peter J. Smith, CBE, in 2001, which outlined the non-exhaustive 18 point UK Constitutional Checklist (see August edition of Constitution News) established by the United Kingdom as a guide for Overseas Territories on how to approach constitutional reform.
A few of the guidelines in the checklist recommended that constitutional “… proposals should be consistent with the UK’s international and treaty obligations”. It also recommended: “…modern international standards of respect for human rights should be adopted consistent with the provisions of the European Convention on Human Rights (ECHR) enshrined in the Human Rights Act and other relevant International Conventions [and that] there should be machinery for enforcement of these rights.”
Even though a Bill of Rights Charter has been identified as a key component to constitutional reform by the United Kingdom, there is no reason why we as Caymanians shouldn’t embrace the opportunity to put in place measures to protect our rights as citizens.
An extract from an article published in 2001 by local attorney Olivier Watler entitled “The Cost and Who Pays” provides us with a good read and a useful overview of the purpose and effect of a Bill of Rights Charter.
In setting out the benefits of having a Bill of Rights, Mr. Watler borrowed the words of Thomas Jefferson, one of the original framers of the US Constitution, when he stated that the purpose of a Bill of Rights was to achieve “…what people are entitled to against every government on earth, general or particular and what no just government should refuse.”
Recognizing that a Bill of Rights was not a ’panacea,’ the author also noted that universal rights may “… often times conflict with the rights of others and with collective rights and interests…” It is against this statement that I now broach the issue of same sex marriage which was the topic of a recent poll in the Caymanian Compass.
The results of the article “Poll Takers Define Marriage” were published in that newspaper on Friday, 27 July 2007. Responses to the question “Should Cayman legislators define marriage?” showed that of 699 participants, 401 or 59.94% felt that marriage should be defined between a man and a woman;183 or 27.35% believedt that marriage should be between two consenting adults, and 77 respondents or 11.5 %, felt that legislators should not define marriage.
Although the poll’s participants only reflected a small sample of our society, nonetheless, the majority view revealed that marriage should only be between a man and a woman.
The difficulty that most Caymanians have with the issue of same sex marriages is that it is a concept that does not blend with the belief systems in our society. In fact, this issue is not unique to us here in the Caribbean, but may also be seen in large developing countries in North America and Europe.
During the course of constitutional reform in our Islands, a major part of this national exercise will be to ensure that Caymanian interests are protected throughout the entire process, whether they fall in the area of the Bill of Rights or other aspects of constitutional reform.
In response to media questions, Leader of Government Business, the Hon. Kurt Tibbetts, has announced that on the issue of defining marriage, it is the government’s intention to move forward with a definition. (See “Lawmakers Will Define Marriage”, Caymanian Compass, 9 July 2007.)
A recent example of an overseas territory attempting to protect its local interests as related to the framing of their bill of rights, may be found in the British Virgin Islands (BVI). Like Cayman, the BVI has a strong desire to keep intact its longstanding societal beliefs. In addressing the issue of marriage, their leaders, with the technical support of their constitutional review team, were able to clarify the scope of the protection of the right to marry in their Bill of Rights Charter.
Without going into detail, the British Virgin Islanders were able to enshrine the protection of the right to marry in their Bill of Rights Charter, but left the definition of marriage to local legislators.
This example demonstrates that not all rights are absolute and that internationally, it is recognized that many rights are social ones, limited to the collective views of a particular society. Hence, there will always be a delicate balance between the rights of the individual and the collective interests of society.
This does not mean, however, that in every circumstance, everything each of us wishes to protect can be protected 100% because human rights are founded on the principle that each person is equal. What is important is to consider what we as individuals gain from a bill of rights.
The Constitutional Modernization Initiative now gives us an opportunity to draft a more modern constitution which will include a Bill of Rights Charter. The Secretariat has partnered with the Human Rights Committee with a view to increasing our knowledge about the issue. We look forward to discussing important constitutional issues with you in the coming public consultation period. So let’s start shaping our future together.
- Suzanne Bothwell
Last Updated: 2007-08-23