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Constitutional
Review
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This page current consists of nine documents and articles:
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The Governor's statement on Constitution Review The following statement concerning the Constitutional Review was issued by HE the Governor, Mr. Peter J. Smith, CBE. A review will commence shortly of the constitutional framework within which a renewed and modernised partnership should operate between Cayman and the UK. The review will be based on recognition of mutual responsibilities and obligations and will be completed following extensive public consultation and debate within a nine-month period following the commencement. A Constitutional Review Commission will be formed to carry out the review process and will consist of three people, two of whom, including the Chairman, will be Caymanian, and one of whom but not necessarily the Chairman, will be a lawyer. The public is invited to submit recommendations for individual members of the Commission to my office, either officially or in private, before close of play on Friday 23 March 2001. The review is well timed. The present Constitution of the Cayman Islands dates from 1972 and there has been a series of interim amendments in the intervening 29-year period. A draft revised Constitution was produced in 1992 but never promulgated. Furthermore, there has been considerable social and economic development and change in the Cayman Islands since 1972, as well as a substantial change in the international climate on, for example, human rights issues generally. In addition the UK is now a full member of the European Community with its additional attendant responsibilities. Constitutional review is being carried out in many of the Overseas Territories in line with the spirit of the White Paper. In order to assist that review process and to see if any changes are needed, a Constitutional Modernisation Checklist has been drawn up. This gives an indication of the standards which Overseas Territories should seek to achieve, the obligations which they should strive to meet, and the expectations of HMG in key areas of modernisation. In the interests of transparency and open debate, I am attaching the 18-point checklist, which is not meant to be exhaustive. I would hope to be in a position to give details of the Review Commission in a Proclamation in the first few days of April. CONSTITUTIONAL MODERNISATION CHECK-LIST
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Commentary
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| The following two articles are from a series by Mr. Olivaire Watler, one of the Council Members of the Caymanian Bar Association, as published in the 'Cayman Executive' magazine. The views expressed do not necessarily reflect the views of the CBA or its Council but are published here with the kind permission of the Council. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Article 1 - Constitutional Review: The Whys and Wherefores His Excellency the Governor has recently announced a review of the Cayman Islands Constitution. This decision is timely and important and should be welcomed by all Caymanians in light of the many significant social and political changes since the last constitutional review. The size as well as the composition of our population in terms of national origins have changed dramatically. The British Government has pressed for its Overseas Territories to recognize human rights in the areas of homosexual acts, capital punishment and judicial corporal punishment. There is also an emerging awareness within the community of civil and human rights, such as, for example, the legal action brought to assert the right of a Rastafarian child to attend school wearing 'dreadlocks'. Britain has sought to redefine its relationship with the Overseas Territories in the White Paper and has offered British Citizenship to all British Dependent Territories Citizens. Finally, there is an evolving national consciousness among Caymanians. But what has all this got to do with our Constitution? How does a constitution affect our daily lives? At its simplest level, a constitution sets out the relationship between individuals and the Government. It defines the powers of the state and its agencies. It determines who can do what and where the limits of power are. More particularly, it provides for: representation of the people in Government and the accountability of Government to the people; division of power within Government i.e. the executive, legislative and judicial branches of Government each have a separate function and serve as a check on the exercise of power by the others; the rule of law i.e. a Government which is guided by a set of laws rather than the dictates of an individual or group; and the protection of rights and freedoms of citizens against encroachment by the Government. However, not all elements of a constitution are necessarily contained in a written document. In some countries, such as the United Kingdom, it is a collection of documents, statutes, and traditional practices that are generally accepted as governing political matters. States that have a written constitution may also have a body of traditional or customary practices that may or may not be considered to be of constitutional standing. Most of us are more familiar with the features of the U.S. constitution than we are of our own. This is because much of American jurisprudence and politics involves a discussion about what is or is not constitutional, or ought to be or ought not to be constitutional and U.S. media (to which we are greatly exposed) avidly reports these discussions. Hence, most of us are aware that 'taking the Fifth' is a reference to the Fifth Amendment to the U.S. constitution which provides (amongst other things) a privilege against self-incrimination. However, aside from the fact that the British constitution is largely unwritten, there is a fundamental difference between the U.S. constitution as a document and so-called Westminster model constitutions derived from Britain. In the U.S., the constitution as interpreted by the Supreme Court is sovereign while in Westminster model constitutions Parliament is supreme so that whatever one Parliament has passed another can repeal. The U.S. constitution, on the other hand, is entrenched so that Congress would require special majorities to be able to amend the U.S. constitution. The effect of this is that the U.S. Supreme Court can declare an Act of Congress or of the legislatures of individual states unconstitutional and therefore void. The British courts and the Cayman Islands courts do not have a similar power. Instead, the role of our courts in this respect is to interpret statutes to be consistent, so far as possible, with the Constitution and, in the extreme case, for example, to set aside an administrative action or procedure as being unconstitutional, but not to declare void the statute or subsidiary legislation on which the action or procedure is based. The presence of a constitutional document, however, has made American politics more consciously "constitutionalist", at least in the sense that politicians in the United States take more frequent recourse than their British counterparts to constitutional legal argument and to litigation. But what about our present Constitution? How did come into being? In 1863, the Cayman Islands formally became a dependency of Jamaica,
whose legislature had the final authority over locally passed
laws in the Islands. In 1959, the Islands ceased to be a dependency
of Jamaica and became a unit territory within the Federation of
the West Indies. In the same year, a new constitution provided
for an elected majority in a Legislative Assembly. At the dissolution
of the Federation in 1962, the Islands chose to remain under the
British Crown and received a revised constitution which, in 1972,
was modified to allow for a Government directly responsible to
the Crown. The Constitution was reviewed in 1991 but the new draft
was later shelved. The 1972 version was instead amended to provide
for (amongst other things) ministerial government and an increase
in the number of elected representatives in the Legislative Assembly
from 12 to 15. Modernizing our Constitution is an imperative. Advancing our Constitution, which is a slightly different issue, is a matter that demands our serious consideration. To what extent does our Constitution fulfil all the functions of a constitution as described above? How will a Bill of Rights in our Constitution alter the norms in our society, and are the likely changes acceptable to us? These are the primary questions to which we must address our minds and on which we should provide input to the Constitutional Commission during the Constitutional review. In my next article I will address these questions in some detail. Olivaire Watler |
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| Article Two - 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: 1. 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? 2. How should the rights of individuals be balanced against society's rights? 3. What rights should be included in a Bill of Rights? 4. How should those rights be enforced and by whom? 5. What may justify a breach of the Bill of Rights? 6. 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. Olivaire Watler |
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CBA Constitutional Review Committee
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