Continuing the series of comparisons between many of the sections of our proposed Cayman Islands Bill of Rights and the corresponding Articles of the Convention.

My comments – in italics- are for the most part quite brief, and I hope you find them informative and perhaps thought provoking.

This commentary will be published daily until the topic is exhausted.

I hope you all enjoy this series.


Comparing the Cayman Islands draft Bill of Rights, freedoms and responsibilities with the European Convention on Human Rights. (6)

Comment on CI BRFR Section 10 Conscience and Religion and ECHR Article 9 – Freedom of thought, conscience and religion

It seems to me to be quite possible for any government school to continue to hold school assemblies or to open a class or tutorial with prayers, or to have religious education classes presented with a generally Christian perspective, and that by itself such practice could not be held to hinder anybody’s freedom of conscience. However, parents would be able to request that their children do not attend any such gathering if it had any prayers or instruction of a Christian or religious sort, as happens currently. It might be good for the school specifically to request consent from parents for their children to attend such assemblies or classes at the time the child first enters school. The onus would then clearly be on the parent, if he or she wished it, to request withdrawal of their child from such assemblies or classes subsequently. The religious ethos of ‘religious’ institutions seems particularly well protected.
It would seem to me advisable for the Education Code to have a section within it mirroring the Education Act provision in Britain about school assemblies and religious education (which unfortunately is honoured in the breach there frequently today). There should also be a clear policy statement from the Department of Education, which in the case of any secularist challenge would attract that challenge rather than any specific action under the policy by a school principal. The statement would pay due attention to CI BRFR Section 1 (2)(a). Revision to the Education Law to provide for a modified Education Code might become necessary.

It is certainly true, however, that ‘Freedom of Religion’ constitutional provisions elsewhere have often been interpreted in favour of religious minorities rather than the majority faith, where that is Christian. Under the CI BRFR Article 23, courts cannot directly strike down laws that they declare to be incompatible, but they will present their findings to the Legislature.

ECHR Article 9 looks like an earlier and simpler version of the same sort of provision, perhaps in its lack of complexity one that has allowed or encouraged certain abuses or failures of responsibilities in the name of rights.


Conscience and religion

CI BRFR Section 10.-

(1) No person shall be hindered by government in the enjoyment of his or her freedom of conscience.

(2) Freedom of conscience includes freedom of thought and of religion or religious denomination; freedom to change his or her religion, religious denomination or belief; and freedom, either alone or in community with others, both in public and in private, to manifest and propagate his or her religion or belief in worship, teaching, practice, observance and day of worship.

(3) Except with his or her consent or, in the case of a minor, the consent of his or her parent or guardian, no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance that relates to a religion other than his or her own.

(4) No religious community or denomination shall be prevented from or hindered in providing religious instruction for persons of that community or denomination in the course of any education provided by that community or denomination whether or not that community or denomination is in receipt of any government subsidy, grant or other form of financial assistance designed to meet, in whole or in part, the cost of such education; and this right includes the right of any school or community educational institution to impose requirements on employment, admission or curriculum-design necessary to maintain the religious ethos of that school or institution, subject to applicable employment laws in force.

(5) No person shall be compelled to take any oath which is contrary to his or her religion or belief or to take any oath in a manner which is contrary to his or her religion or belief.

(6) Nothing in any law or done under its authority shall be held to contravene this section to the extent that it is reasonably justifiable in a democratic society –

(a) in the interests of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of adherents of any other religion or belief.

(7) If a court’s determination of any question arising under this Part might affect the exercise by a religious organisation (itself or its members collectively) of the right to freedom of conscience as protected by this section, it must have particular regard to the importance of that right.


ECHR Article 9 – Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.