A Bill of Rights: The costs and Who Pays
The previous article discussed the 'whys and wherefores' of Constitutional review. It concluded that constitutional review was both important and appropriate for Cayman at this time. This article will focus on one of the principal proposals for a revised constitution, namely a Bill of Rights and its possible implications for the norms of Caymanian society.
Thomas Jefferson, one of the framers of the U.S. Constitution, in 1787 argued that a "bill of rights is what people are entitled to against every government on earth, general or particular, and what no just government should refuse". The opposite perspective was well-articulated by the former High Court Chief Justice of New South Wales, Australia Sir Harry Gibbs: "If a society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it".
There are certainly arguments to be made for having a Bill of Rights. These relate mainly to its educational value to the public, its function in deterring future legislative interferences with individual rights and its role in establishing the relative positions of the Legislative Assembly and the Courts. On the other hand, it cannot be overlooked that many of the liberties which are recognized and enforced in the courts are grounded in the English common law. The common law is accumulated over time by judicial decisions in respect of cases involving actual human situations. The common law allows the new rights to be created as it applies existing principles to novel situations. It is common law judges who have recently created the crime of marital rape, without any new codes or statutes. Codes themselves are subject to interpretation and interpretations can vary widely as demonstrated by the decisions of the US Supreme Court over the years.
Further, it is important to recognize that a Bill of Rights is not a panacea. In the U.S. full rights of citizenship were given to slaves and their descendants in the 13th, 14th and 15th amendments to the Constitution, but it took another century of struggle before these rights were effectively enforced. Similarly, the Constitutions of the former Communist countries such as the Soviet Union and much of Eastern Europe established civil liberties on paper but created no enforcement mechanisms. One of the first legal steps taken in the newly emerging democracies in Russia and Eastern Europe in the 1990s was to add enforceable civil liberties to their rewritten constitutions. Nearer home, our neighbour Jamaica, whose constitution contains a Bill of Rights, has been subject to scrutiny and criticism by Amnesty International for human rights abuses.
Unless a Bill of Rights is implemented by the courts it is nothing more than empty promises and statements of ideals. Unfortunately, the people whose rights are most often denied are frequently those unaware of their rights or the least able to pursue their legal remedies.
What is a Bill of Rights? A Bill of Rights sets the balance between the exercise of power and the protection of individuals from arbitrary (or abusive) power by establishing the rules governing dealings with individuals in their public lives or official dealings. A Bill of Rights does not govern inter-personal relationships. It is meant to protect those especially vulnerable in our society.
The concept of fundamental, universal and inalienable rights is an abstract one and is difficult to apply in practice. Much will depend on how they are interpreted in a given situation. Typical amongst the protections contained in bills of rights are those in respect of freedom of religion, freedom of speech, due process of law and equality before the law. However, there are others which are more controversial. What is viewed as a fundamental right in one era, or in one society, may not be viewed as fundamental or applicable in another era or society. They are an expression of our core values as a society. A right does not have to be recognized internationally to be included in a Bill of Rights. A clear example is the "right to bear arms" enshrined in the U.S. constitution which was meant to be embedded in a "well regulated militia, being necessary to the security of a free state". It seems obvious that the security of the U.S. no longer depends on a frontiersman wielding a rifle but, nonetheless, a debate rages on in the U.S. political arena about the continued existence of this particular right. Most other societies have not embraced it as a part of their framework of rights.
Another difficulty with the concept of universal rights is that often they conflict with the rights of others and with collective rights and interests. Rights are not absolute. They are subject to qualifications. My right to freedom of speech does not entitle me to make defamatory remarks about you, or to shout "fire!" in a crowded theatre. Other rights, for example freedom to information, may be limited by the collective considerations of 'national security' and the 'public interest'.
What therefore will the adoption of a Bill of Rights mean for Cayman? How will the norms of our society be altered? We have recently experienced challenges to the norms of our society in the form of the legal action brought by the parents of a Rastafarian child to allow the boy to attend school without cutting his 'dreadlocks' which were symbolic of his religion. Ultimately the parents succeeded notwithstanding the absence of a Bill of Rights. However it was clear from the judgment of the Court of Appeal that it would have been altogether preferable to the Court to be addressing the matter as an alleged infringement of a constitutionally enshrined freedom of religion rather than examining the reasonableness of the Education Council's decision on a judicial review.
Another case in point has been the abolition of the laws against homosexual acts between consenting adults in private. Since the principle of common law rights is that you are entitled to anything that the law has not expressly proscribed it is fair to say that the first element of 'gay rights', at least on paper, now exists. Will these particular rights be in any way augmented by the adoption of a Bill of Rights?
The answer to this depends on the particular rights which are enshrined in the Bill of Rights, the interpretation given to those rights by the courts and the effect of the Bill of Rights on offending legislation. If, for example, we were to include in a Bill of Rights a freedom from discrimination on the basis of sexual orientation, rather than merely permitting homosexual acts between consenting adults in private this could be interpreted by the courts to permit same-sex 'marriages' and the adoption of children by homosexual couples.
In the case of freedom religion it would be necessary for the courts to determine when a group was or was not a religion (as opposed to a mind-control suicidal cult, for example) and therefore receive the benefits of this protection. One man's cult is another man's religion. Government would not be entitled to favour one religion over the other in respect of education grants to religious schools for instance. The lines may become a great deal more blurred than they are presently.
What would be the effect of the court's decision? This depends on whether the rights are contained in a Human Rights Law similar to the U.K. Human Rights Act, 1998 (in which case judges would not be able to strike down legislation but would be able to make a 'declaration of incompatibility' between a statute and the Convention, inviting the Legislative Assembly to pass amending legislation) or, alternatively in a Bill of Rights enshrined in the Constitution as a fundamental law where the courts were specifically empowered to declare any statute void which conflicts with its provisions (as interpreted by them).
There are a number of technical legal questions that need to be answered if we are to enact a Bill of Rights:
- Should a Bill of Rights be entrenched like the Canadian Charter of Rights and Freedoms, or should it be an ordinary statute passed by the Legislative Assembly similar to the U.K. Human Rights Act?
- How should the rights of individuals be balanced against society's rights?
- What rights should be included in a Bill of Rights?
- How should those rights be enforced and by whom?
- What may justify a breach of the Bill of Rights?
- How should the Bill of Rights relate to other laws?
- Clearly a Bill of Rights is a matter which will require careful consideration not only by the Constitutional Commissioners but also by the public at large. It is up to the public to articulate the core values of our society and how we wish for those to be protected.