HRC Guide to Frequently Asked Constitutional Questions

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Introduction

On 12 January 2008, the incumbent PPM Government issued a summary of proposals for constitutional modernisation for the Cayman Islands, which the Government intends to be the subject of a referendum vote after May 2008. 

A constitution is very important to the development, acknowledgement and protection of human rights. Therefore, the Human Rights Committee (“HRC”) believes it is essential to provide a brief summary on a number of important issues:

• To help the Cayman public understand some important concepts in the ongoing constitutional reform process, which might be unfamiliar and confusing;
• To address points of concern which continue to be raised by persons and groups in the community; and
• To clarify a number of misconceptions, including any confusion regarding the HRC and its role in the constitutional reform process.

• What is the HRC? Is the HRC drafting the new constitution?

  The HRC is not a government body or committee, but is a wholly independent organisation.  It is the national committee with responsibility for promoting human rights education and hearing human rights complaints. The HRC also writes reports on human rights breaches and issues and makes recommendations for improvement of human rights in Cayman. However, the HRC has very limited enforcement powers. The terms of reference for the HRC can be seen at: www.humanrights.ky.

• How has the HRC contributed to the constitutional reform process?

  The HRC is not in charge of drafting the new Constitution and it does not have any special power to influence the content of the new constitution. The HRC should not be confused with the Constitutional Review Secretariat, which is a special Government office set up to oversee the constitutional reform initiatives. Any views expressed by the HRC represent the views of this Committee only and not of the Government, or of any political party or organisation.

  When the incumbent Government revealed its plans for constitutional reform, its proposals included the addition of a bill of rights into Cayman’s Constitution. As the national, independent committee for human rights in Cayman, HRC took an interest and decided:

  • To take steps to help educate the public on human rights.

    Accordingly, the HRC hosted a series of public lectures on human rights and also made appearances on local radio talk shows and other media; and

  • To give independent review and analysis of the Government’s constitution proposals.

    The HRC’s Report was issued on 3 April 2008 and can be viewed in full at www.humanrights.ky.

    In summary: while the HRC Report was largely supportive of the Government’s proposals, it identified a number of instances where the Government’s proposals could be improved to offer better protection for human rights to the people of the Cayman Islands.

    In addition, the HRC Report points out a number of important human rights which are not addressed by the current Government proposals.

  • Bill of Rights is non-negotiable for Cayman

    The HRC Report also pointed out that the Government proposals include matters which are non-negotiable with the UK, such as the inclusion of a bill of rights in Cayman’s Constitution. The UK Government has emphatically stated that it will require a bill of rights to be enshrined in the Constitution, rather than as an ordinary law which can be changed more easily.

Frequently Asked Constitution Questions:

During the HRC’s public education campaign, the Cayman public frequently raised a number of questions and concerns. The HRC hopes this simple Guide will offer a helpful, independent explanation of basic constitutional concepts, explain some of the terminology being used and also help improve the public’s overall understanding of human rights.

• What is a Constitution? How does a constitution relate to other laws?

  A constitution is a document which establishes the government system, creates procedures and structure for the government and sets out the government’s powers. Therefore, it is also useful for a constitution to set out the rights of the people, which the government cannot breach. However, Cayman’s constitution currently does not include any human rights and this is one of the changes being suggested by the PPM.

  

  The human rights included in a constitution should be based on the principle of equality, since human rights are ‘the basic rights and freedoms to which all human beings are entitled’.

  Once a government system has been established, the government will pass laws and follow the procedures set out in the constitution, as is the supreme source of all the country’s laws. So, in general terms, the constitution will set out the human rights which every person should have. The local laws must comply with the constitution and will set out, in more detail, how rights will operate in everyday life.

  For example: the constitution will set out the basic human rights which are important to Cayman as a nation. Cayman’s constitution may say “all persons have a right of privacy”. The local laws will put that right into effect, with any necessary limitations.

  So, when the police seek to search a private home for crime-detection purposes, the local law will set out a procedure to be followed before invading that person’s constitutional right to privacy, such as requiring the police to get an order from the court before carrying out the search. The police would be required to present evidence to an independent judge, who would make sure there is sufficient reason to impose on the citizen’s constitutional right of privacy before giving permission to search a private home.

  
• What is ‘vertical application’ of human rights?

  Vertical application of rights means rights will apply vertically so that they can be enforced by a citizen against the Government only – but not against other private individuals.

  

  The current Government proposals intend for any new bill of rights to only apply vertically – i.e. against the Government - but not ‘horizontally’ against private individuals or companies.

  It should be noted however, the Government will have to take account of the human rights set out in the Constitution when passing local laws, so there will be ‘indirect’ horizontal application of human rights principles to private individuals. This is discussed further below.

• What is ‘horizontal application’ of human rights?

  Although the Government has stated that it intends for rights to only apply vertically (i.e. only against Government), the option also exists for these rights to be applied ‘horizontally’ as well. Horizontal application of rights means a person can also enforce rights against other private individuals or companies.

  

  Examples of horizontal application of rights

  If the bill of rights applies horizontally, this would mean that each person would have to take account of another person’s human rights in our interaction with each other. So, if someone felt that they were discriminated against at work because of their sex or race or disability, this would be a violation of their rights since the constitution prohibits discrimination on those grounds.

  Horizontal application of these rights would allow that person to sue that company directly for breaching their human rights. However, the Cayman Government’s proposals does not want horizontal application of rights, so a citizen would only be able to sue Government for any human rights breaches, but not private individuals or companies. This is the position in most democracies around the world.

  Indirect ‘horizontal application’ of human rights

  When passing local laws, the Government will have to take account of human rights principles under the Constitution.

  For example, employment or labour laws will require private companies to take account of human rights principles under the Constitution:

  So, if the Constitution provides that there should not be discrimination on the basis of disability, the Government must keep this in mind when passing local labour laws and make it illegal for an employer to discriminate against a person because of their disability. So, if a disabled person is qualified and can perform the job, private employers will be prohibited by local law from refusing to hire the disabled person, just because of their disability. This is known as ‘indirect’ horizontal application of rights.

  

  Under the Government’s proposals, while there will not be direct horizontal effect of rights, private citizens must live and operate with the local laws, which must follow the constitution – in that way, there will be indirect horizontal application of rights.

• Will a bill of rights affect the hiring policies for private or church schools?

  Under the current Government proposals, the bill of rights will only apply vertically against Government but not horizontally (against private individuals, companies or schools or organisations). However, since local laws must follow the rights set out in the Constitution, there will be the issue of ‘indirect’ horizontal application to private individuals.

  As noted above, the local employment laws will reflect the rights in the Constitution, which will prohibit discrimination based on a person’s sex or race or religion and so on. However, a specific exception may be made under the law for faith-based schools, so that such schools can require its teachers to be of a particular faith. These types of exceptions must serve a legitimate purpose, be reasonable and must be agreed upon by the legislators, provided that there was scope for doing so under the Constitution.

  The concern has been raised that the bill of rights might also apply horizontally to private schools in Cayman since all of these institutions receive Government funding. However, as necessary, Cayman ought to be able to include such a provision which makes it clear that even though the private schools receive Government funding, private schools will not be bound by the bill of rights. In 2003, the Constitutional Commissioners requested such an exemption for Cayman and this was agreed by the United Kingdom.

• Will a bill of rights stop prayer in schools?

  Having a bill of rights will not stop Christian prayers or devotion from being held in schools. It may help to ensure that this practice is protected for those who wish to continue it. Cayman can continue its Christian heritage and practices in that regard.

  A bill of rights should include the right to freedom of religion. This simply means that every person on the Islands will be free to practise his or her religion and to express his or her religious beliefs, subject to local laws, and also that no person can be forced to participate in the religious activities of any faith of which he or she is not a member.

  This would mean, for example, that during the usual devotion at a Government school assembly, a child who is not of the Christian faith and does not wish to join can respectfully stay quiet, while the rest of the students say their prayers as before. The non-Christian child would still be welcome to join the prayers if s/he wishes.

  To assist further: Cayman’s position is very different from that of the United States. The United States decided that their country should have a clear separation of church and state and consequently, prayers are no longer allowed in U.S. government schools. However, this is not the case for Cayman nor will a bill of rights change that position in Cayman.

• Will freedom of religion bring in other religions and diminish Cayman’s Christian heritage?
  Will cults or devil worshipping and other factions now be allowed in Cayman?

  A concern continues to be raised that both Caymanians and Christians may eventually become the minority in Cayman. If so, our Christian community should be aware of the importance of having the right of religious freedom, as one day Christians may need to exercise that same right in order to continuing practicing their faith in peace, without being pressured or forced by the majority of the rest of the population, who might be of a different religious persuasion.

  The right to religious freedom will also be subject to reasonable limitations under the local law. The right to religious freedom is not absolute. For the community’s safety and protection, the local law will still prohibit dangerous cults or harmful religious practices.

  So, the local law would still prevent harmful activity such as circumcising women or girls, even if that practice were a part of a particular religion. Similarly, dangerous cults or devil-worship will not be allowed or encouraged, either through a bill of rights or by local laws.

• Will Cayman be forced to recognise same sex unions? Will Cayman have to follow European law?

  The United Kingdom continues to be a predominantly Christian society and it decided not to allow homosexual couples the right to marry. However, the United Kingdom decided to allow same sex couples to have a legally recognised union, called a civil partnership.

  Nonetheless, the United Kingdom Government has officially confirmed that it will not impose an obligation on its dependent territories to acknowledge civil partnerships for same sex couples. The Cayman Government has also indicated its intention to constitutionally restrict marriage to a man and a woman and to prohibit civil unions between same sex couples in Cayman under local laws.

  However, the HRC firmly advocates that the principles of equality means that Cayman’s constitution should not seek to discriminate against any group of persons - whether on the basis of sexual orientation, or any other ground.

  Cayman’s bill of rights will likely be required, at minimum, to include anti-discrimination language equal to the European Convention on Human Rights. Cayman can add additional rights (such as environmental rights, rights for children and the disabled and so on) but will be obliged to give no less than the basic rights offered by the ECHR: see letter dated 3 April 2008 from UK Parliamentary Under Secretary of State Meg Munn, paragraphs 3-4 (www.caycompass.com/cgi-bin/CFPnews.cgi?ID=1029983).

  The list of grounds of discrimination for Cayman’s constitution will therefore likely be along the lines of:

  “Every person in the Islands is entitled to the fundamental rights and freedoms of the individual, namely the right not to be subject to discrimination of any kind on the basis of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status…”

  The words “or other status” have been interpreted to include ‘sexual orientation’ in certain cases (such as the age of consent for homosexuals) – but so far, NOT a right for homosexuals to marry. To date, the European Court has declined to interpret the right to marry under the ECHR to include homosexual relationships. The European Court has, on more than one occasion, taken the position that the right to marry under the ECHR is clearly intended to apply only to marriage between a man and a woman only. The European Court believes that each signatory country must be allowed a ‘margin of appreciation’ to decide for itself whether it wishes to recognise same sex unions or allow homosexuals to marry.

  So, where Cayman has clearly addressed its mind to the question of same sex unions, the European Court is less likely to disturb that position and will defer to the decision of the country. However, where Cayman has not come to its own view on a matter, the European Court will then apply the European Convention on Human Rights which sets out the basic, minimum standards afforded to all human beings.

• What is the ‘margin of appreciation’?

  The ‘margin of appreciation’ is a concept the European Court has developed when considering whether a signatory country has breached the European Convention on Human Rights. The ‘margin of appreciation’ allows the European Court to take into effect the fact that the Convention will be interpreted differently in different signatory states, since each country has its own cultural, historic and philosophical differences to Strasbourg, while at the same time maintaining integrity and due respect for core human rights principles.

Frequently Asked Constitution Question	Answers
How has the HRC contributed to the constitution reform process?	The Government proposals seek a bill of rights for Cayman. As the national independent body for human rights, HRC decided to get involved: To help educate the public on human rights; and To give independent analysis of the Government’s constitutional proposals. See HRC Report dated 3 April 2008 at www.humanrights.ky.
What is a constitution?	A constitution is a document which establishes the procedures and structure of the government and sets out the government’s powers.
What is a bill of rights?	Since a constitution sets out the Government’s powers, it is also useful for a constitution to set out the rights of the people, which the Government cannot breach – often called a ‘bill of rights’.
How does the Constitution different from ordinary laws?	The Constitution is the ‘supreme’ source of the local laws. Any other laws passed by the government must take account of the principles and rights set out in the Constitution. Ordinary laws can be changed or amended more easily than the Constitution, a constitution offers more stability for human rights.
How do local laws apply the constitution?	Local laws will give more detail of how society can operate on a daily basis but must always follow the aim and spirit of the Constitution. For example: local law may require the RCIPS to get a court order before invading a citizen’s constitutional rights.
Is a Bill of Rights negotiable for Cayman?	No. The UK has made it very clear that Cayman must implement a bill of rights in any new Constitution.
Can the Bill of Rights be included as an ordinary law?	No. The UK has made it clear that a bill of rights must be included in Cayman’s constitution, rather than as an ordinary law, which can be changed or repealed more easily.
What rights have to be in Cayman’s Bill of Rights?	At minimum, Cayman bill of rights must offer the basic protections given by the European Convention of Human Rights, which has been extended to Cayman. Cayman is free to add further rights which the country needs or wants, such as environmental rights, rights for the disabled, the elderly, children and women.
What is freedom of religion?	Freedom of religion means that every person will be free to practise his or her religion, subject to local laws.
What is freedom of conscience?	No person can be forced to participate in the religious activities of any faith of which he or she is not a member.
Will freedom of religion for all faiths prevent Christian prayers in schools?	No. Having a bill of rights will not stop Christian prayers or devotion from being held in schools. It may help to ensure that this practice is protected for those who wish to continue it. Cayman can continue its Christian heritage and practices in that regard. Cayman’s position is very different from that of the United States. The US follows the doctrine of separation of church and state and no longer holds prayers in schools.
Will freedom of religion allow dangerous cults or devil-worship in Cayman?	No. Dangerous cults or devil worship will still be illegal under local laws. Harmful cults or religious practices, such as female circumcision or animal sacrifices will also remain illegal in Cayman.
What is ‘vertical’ application of rights?	‘Vertical application of rights means rights would only be enforced between each person against the Government only.
What is ‘horizontal’ application of rights?	‘Horizontal application’ of rights means rights would be able to be enforced by one private individual against another person or private company. **Horizontal application is not currently being considered by the Government.
What is ‘indirect’ horizontal application of rights?	The Government must take account of human rights principles when passing new laws, such as labour or employment laws. Such laws will prohibit private employers from discriminating against other private citizens on any grounds listed in the constitution.
Can rights be enforced against private schools that receive Government funding?	Unlikely. Cayman should be able to include a provision which makes it clear that even though the private schools receive Government funding, there will not be horizontal enforcement against private schools, neither directly nor indirectly.
Will a bill of rights affect private or church schools hiring policies?	Unlikely. A specific exception can be made to local employment law in the case of faith-based schools, to allow them to require its teachers to be a member of their specific faith.
Will the UK impose same sex unions on Cayman?	The UK has formally stated that it does not intend to do so. The Cayman Government has stated that it will restrict the right to marry in the constitution to a man and a woman, and to prohibit civil unions between same sex couples under local law.
What is the ‘margin of appreciation’?	The ‘margin of appreciation’ is a concept developed by the European Court of Human Rights to acount of a country’s cultural, historic and philosophical views on a particular issue – most notably, the right to marry and on same sex unions.

• What is the right of individual petition? Does this mean Cayman now has to follow Europe’s practices and ideas?

  The right of petition to the European Court of Human Rights has been permanently extended to Cayman.

  At the moment, since Cayman does not have any of its own constitutional rights for its people, this right of petition is a ‘safety net’ only and simply offers Cayman’s people the bare minimum of human rights. However, the right of petition is arguably the weakest level of human rights enforcement and is not a real substitute for Cayman having its own ‘Caymanian’ bill of rights.

  The right of individual petition has a number of weaknesses and disadvantages:

  • It applies to violations committed by the Government only (not against other private individuals);
  • Only the actual victim can apply. There can be no general complaints (for example, the National Trust) and no complaints on behalf of other persons.
  • The option is only accessible after exhaustion of local remedies (non-existent in Cayman);
  • Delay of up to 2 years for a hearing;
  • Costly; and
  • The European Court can only award damages. It is not a court of appeal and so has no ability to overturn or rehear decisions a case decided on by the national courts. It will not intercede on a person’s behalf against their Government.

  Compare this to the position if Cayman implements its own bill of rights: our citizens will have defined rights, capable of enforcement by our local Cayman courts for any breaches by the Government; the process is speedier and more cost effective (legal aid may be available to qualified persons), the Cayman court will also be better placed to take account of the cultural sensitivities, than the European Court. More importantly, the Cayman court will have a more remedies (other than just an award of damages) better suited to the victim’s actual needs, for a more meaningful and beneficial result.

A Comparison	The Right of Petition to the European Court	A Cayman Bill of Rights
What rights do I have?	With no other constitutional rights, the right of petition is a ‘safety net’ only of the bare, minimum rights of the ECHR	Cayman defines and protects human rights and enables citizens to enforce their human rights in Cayman.
Who can apply?	Applicant must be the affected party (no general complaints, no complaints on behalf of other persons except as an official representative)	There is greater scope to sue in a representative capacity
Who can I enforce these rights against?	Violation must be specific and must have been committed by the Government (never against another individual or a private company)	Addresses any breach of fundamental right by the Government (option exists for horizontal application against private individuals or companies)
How do I get access to this court?	Only accessible after exhaustion of local remedies (which are non-existent in Cayman)	Local court is directly accessible at all times
How long will it take?	Delay of up to 2 years for hearing	Comparatively quicker
Is it expensive?	Costly (possibly prohibitively so)	Less costly (Legal aid may be available to qualified persons)
What kind of help can I get?	Limited relief in form of “just satisfaction”, usually a damages award	Full array of different types of relief (including damages) more suitable to the victim’s actual needs and circumstances
Can I appeal?	Not a court of appeal from national courts. Has no ability to overturn or rehear decisions of national courts. Will not intercede on a person’s behalf against the authority complained of.	Appeals process to higher courts (Court of Appeal, Privy Council) is also available
Will they understand the local or cultural context?	Far removed from the local context or cultural sensitivities but will allow a margin of appreciation for a country’s stated position on a specific issue	Cayman court far better placed to take account of the local views and context
Can it help us decide how to prioritize different rights?	No use in determining how the Cayman people want to balance different rights.	Cayman’s Bill of Rights can decide which rights Cayman would like to take precedence where there is a conflict between more different rights. For example: freedom of religion which practices female circumcision should not outweigh a female’s right not to be tortured.