Dear Sir:

This article (Caymanian Compass on 30 December 2009, by Alan Markoff) was headlined “2009 TOP STORY - Referendum passes new Constitution” and was intended to form part of the newspaper's review of significant 2009 events. However, part of it in my view included prejudicial statements against a specific section of the community, namely “the clergy”, whose important contribution to the negotiations was portrayed in a negative light, as well as being outlined inaccurately in most significant areas.

I looked up some information on the internet about standards of journalistic integrity, with the result that a number of areas in which I perceive this article to fall short of acceptable standards were identified, namely, under

“Accuracy and standards for factual reporting”

• Reporters are expected to be as accurate as possible given the time allotted to story preparation and the space available, and to seek reliable sources.
  
  
• Events with a single eyewitness are reported with attribution. Events with two or more independent eyewitnesses may be reported as fact.

Also under

“Slander and libel considerations”

• Reporting the truth is never libel, which makes accuracy very important.
  
  
• Private persons have privacy rights that must be balanced against the public interest in reporting information about them. Public figures have fewer privacy rights in US law, where reporters are immune from a civil case if they have reported without malice. In Canada, there is no such immunity; reports on public figures must be backed by facts.

I should at once make clear that there is no libel lawsuit being contemplated against this reporter (who in the past has in my view demonstrated journalistic integrity), but merely an intention to open up and discuss the areas in which he appears to have gone seriously over the line where his article is concerned.

Here is a summary of what I see to be major inaccuracies. One must bear in mind that the press was not allowed to be present at the various rounds of negotiation and, without accessing the archived recordings or having reliable access to the various drafts that were produced, reporters could not be expected to have a totally accurate picture of what happened.

A major omission in the article was the fact of the revisions made in London of what Markoff described as a “working draft constitution and hopeful results” that came out of the September 2008 first round of meetings.

The draft that was the starting point for the second round of negotiations in January 2009 was not the same as the draft that resulted from the first round. By the end of the first round our negotiators knew that revisions were going to be made to it in London by the UK team.

No accurate knowledge, therefore, of what the working draft constitution was to become after the first round was possible until Mr Hendry had sent it to the Cayman Islands in October 2008. At that time, the second round of negotiations was scheduled to begin in November at a Cayman Brac location.

However, Cayman Brac was in the event devastated by Hurricane Paloma.

The second round was delayed until January 2009 and took place in Grand Cayman. Moreover, public discussion of the document at this stage was made very difficult by the rules that had been set out for the negotiations.

What the article needed but failed to mention, therefore, was the fact that parts of the draft, including section 16 of the Bill of Rights, had been changed in the UK.

Drawing on research about the effects elsewhere of the non-exhaustive language that had been introduced into section 16, the local negotiators were confronted with many grave difficulties, which included such possibilities as the definition of marriage becoming interpreted by the courts to include same-sex arrangements, and the introduction of mandatory teaching of homosexual activity in the classroom curriculum and adoption of children by homosexual partners.

While such examples all have to do with homosexuality, it was realised also that there was a more general problem of incompatibility with local values, in that the section in its current form would permit any person to allege discrimination by Government in respect of any right he or she may care to assert (whether in the Bill of Rights, Freedoms and Responsibilities or not), including those that might be incompatible with Christian and cultural values as they are understood in Cayman.

The government, accordingly, could become embroiled in endless expensive law suits. “The clergy” are pejoratively referred to in the article with the implication that they stand against people's rights, on account of their standing up for the truth and for Cayman.

The solution for the difficulty was provided through a surprising source: the government’s legal advisor. However, he may be surprised to see his solution being characterised, as it is in Markoff’s article, as one in which “Homosexuals did not get rights against discrimination by the government, but neither did many other specific groups of people” – a characterisation that is wholly inaccurate.

To include this inaccuracy is the second major error in Mr Markoff's article. The solution, as has been pointed out many times, originated in none other than the UN’s Universal Declaration of Human Rights, in a form of construction that was repeated in the European Convention on Human Rights.

The Cayman Islands’ Bill of Rights, Freedoms and Responsibilities in particular reflects a similar range of rights over which government is responsible not to allow discrimination as that of the European Convention Article 14, namely “the rights under this Part of the Constitution” – a phrase to be compared with the European Convention Article 14’s “rights and freedoms set forth in this Convention”, and also with the Universal Declaration of Human Rights’ “rights and freedoms set forth in this Declaration.”

These rights are available to one and all, and there are absolutely no “specific groups of people” that are generally excluded from them, or, for that matter, should qualify for them more than others.

The only qualification is that they be human. It would be extremely remiss for any party to the negotiations to let such an error of reportage pass, and a reporter or any other person continuing to insist after rebuttal on such a statement as “Specific groups did not get rights against discrimination by the government” would have to be regarded as deliberately mischievous and misleading.

Nevertheless, as with the UN Declaration and the European Convention, a definition is supplied to the range of rights that are constitutionally supported and a very large number of countries understand such definition to be necessary for themselves, just as we do.

Thirdly, it is quite remarkable to see the assertion stated as a fact that “the key endorsement came in Cayman’s churches the Sunday before the election”.

Did Markoff cut himself up in little pieces and go to all the churches? Did he have two or more independent eye-witnesses attend even ONE of the churches?

But even more extraordinary is the form of the “key endorsement” that he reports as fact, that “many members of the clergy told churchgoers they should vote yes for the constitution.”

Even the great Apostle Paul rarely ordered those he exhorted and advised what to do. An appeal to revelation, guidance and to conscience is the normal way the clergy operate.

I am of the view, therefore, that people voted according to their beliefs and understandings, and may have been encouraged to think positively about the extensively negotiated constitutional draft by those they trusted – and to reject the advice of those they trusted less.

The Cayman clergy have just as much need and even right, to be reported about accurately and without malice and mischief as others do.

We appeal to reporters as well as newspaper editors to adhere to acceptable standards of journalistic integrity in their important role in society.

(Rev) Nicholas Sykes
Member of Negotiating Team and Observer for the Constitutional Negotiations