Notes on Non-Discrimination: the European
Convention, Bermuda and the Cayman Islands plus
A circular argument ?
1. CONSTITUTIONAL COMMENTARY
By Rev Nicholas Sykes, written in March 2009 and published in Cayman Net News
Continuing the series of comparisons between sections of our proposed Cayman Islands Bill and the corresponding Articles of the Convention.
COMPARING THE CAYMAN ISLANDS DRAFT BILL OF RIGHTS, FREEDOMS AND RESPONSIBILITIES WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS. (10)
CI BRFR Section 16 Non-discrimination
and ECHR Article 14-prohibiting discrimination
ECHR Article 14 is written with extraordinary simplicity when compared to later versions such as those of the CI BRFR and the Bills of Rights of the other OTs. It is certain that the words “or other status” in the ECHR and in the Universal Declaration were not at the time designed to include such later linguistic and philosophical constructs as “sexual orientation”, that are claimed for them today. They were possibly designed to expand the category of “birth” – thus including perhaps by implication baptism, confirmation, and marriage and so on.
CI BRFR Section 16 like the other modern versions expands and makes specific derogations to this right. CI BRFR in particular reflects a similar range of rights over which government is responsible not to allow discrimination as that of ECHR Article 14, namely “the rights under this Part of the Constitution.” – a phrase to be compared with the ECHR 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.” That range of rights has been the subject of some controversy here in Cayman, some parties seeking to have the Article applied in a completely free-standing way, as appears to be done in other recent OT constitutions. It was understandably felt however, that applying non-discrimination in a free-standing way, i.e. without defining the range of rights to which it could be applied, would result eventually in the Bill of RFR being expanded in its application by stealth, against the will of the people as expressed in this Constitution and in the Legislature, as has undoubtedly occurred in Canada with their Charter of Rights and Freedoms, which is now in the areas of religion, social norms and morals, effectively an entirely changed document from its original and printed version.
It is instructive to reflect that the addition of Protocol 12 to ECHR Article 14 expands the range of rights to which the Article is applicable, but does not actually go so far as to make the Article free-standing: rather, the range of rights to which Article 14(+ Protocol 12) would apply would be any rights “set forth by law”. It is instructive also to reflect that some years after the creation of this Protocol, fewer than 20 percent of signatory states and their dependants to the ECHR are signed up to the Protocol, and the UK and her Overseas Territories are not among these. For all these reasons it would be highly inconsistent, in addition to bearing a potentially limitless cost, for the Cayman Islands to agree to a non-discrimination provision that would be even wider than the effect in ECHR signatory states of Protocol 12. I suppose that the other OTs that have received, perhaps unwittingly, a free-standing non-discrimination Section will in time regret this. Anyone who denigrates CI BRFR Section 16 on the basis of its not containing a free-standing application, must also denigrate the ECHR and the Universal Declaration of Human Rights on the same basis, yet it is these that detractors usually affect to hold in reverence.
It is notable also that in CI BRFR Section 16 “discriminatory” is wisely defined as “affording different and unjustifiable treatment”, not merely “different” treatment to persons based on their stated categories. The ECHR does not appear to offer any definition of the term “discrimination”. Furthermore there is a derogation provided in CI BRFR Section 16 specifically allowing non-contravention of this section where the action is judged to have an “objective and reasonable justification”, and is proportionate to reasonable aims in a range of social areas. There are further derogations protecting the country’s financial revenues, personal law, Caymanian persons (in specific matters of residence and employment) and practices that accord restriction or advantage on justifiable grounds and are proportionately applied.
Non-discrimination
CI BRFR Section16.-(1) Subject to subsections (3), (4), (5) and (6), government shall not treat any person in a discriminatory manner in respect of the rights under this Part of the Constitution.
(2) In this section, “discriminatory” means affording different and unjustifiable treatment to different persons on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, age, mental or physical disability, property, birth or other status.
(3) No law or decision of any public official shall contravene this section if it has an objective and reasonable justification and is reasonably proportionate to its aim in the interests of defence, public safety, public order, public morality or public health.
(4) Subsection (1) shall not apply to any law so far as that law makes provision -
(a) for the appropriation of revenues or other funds of the Cayman Islands or for the imposition of taxation (including the levying of fees for the grants of licences);
(b) with respect to the entry into or exclusion from, or the employment, engaging in any business or profession, movement or residence within, the Cayman Islands of persons who are not Caymanian;
(c) for the application, in the case of persons of any such description of grounds as is mentioned in subsection (2) (or of persons connected with such persons) of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description; or
(d) whereby persons of any such description of grounds as is mentioned in subsection (2) may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is objectively and reasonably justifiable in a democratic society and there is a reasonable proportionality between the means employed and the purpose sought to be realised.
(5) Nothing in any law shall be held to contravene subsection (1) to the extent that it requires a person to be a Caymanian, or to possess any other qualification (not being a qualification specifically relating to any such description of grounds as is mentioned in subsection (2)) in order to be eligible for appointment to any office in the public service or in a disciplined force or any office in the service of a local government authority or of a body corporate established directly by any law for public purposes.
(6) Subsection (1) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection (3), (4) or (5).
(7) Subsection (1) is without prejudice to any restriction on the rights and freedoms guaranteed by section 9, 10, 11, 12, 13 or 14 if that restriction would, in accordance with that section, be a restriction authorised for the purposes of that section on the ground that –
(a) the provision by or under which it is imposed is reasonably required in the interests of a matter, or for a purpose, specified in that section; and
(b) the provision and the restriction imposed under it are reasonably justifiable in a democratic society.
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. BERMUDA CONSTITUTION ORDER 1968
Protection from discrimination on the grounds of race, etc.
12 (1) Subject to the provisions of subsections (4), (5) and (8) of this section, no law shall make any provision which is discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections (6), (8) and (9) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
(4) Subsection (1) of this section shall not apply to any law so far as that law makes provision—
(a) for the appropriation of revenues or other funds of Bermuda or for the imposition of taxation (including the levying of fees for the grant of licences);
(b) with respect to the entry into or exclusion from, or the employment, engaging in any business or profession, movement or residence within, Bermuda of persons who do not belong to Bermuda for the purposes of section II of, this Constitution;
(c) for the application, in the case of persons of any such description as is mentioned in subsection (3) of this section (or of persons connected with such persons) of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description; or
(d) whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.
(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that it requires a person to possess Bermudian status or belong to Bermuda for the purposes of section 11 of this Constitution or to possess any other qualification (not being a qualification specifically relating to race, place of origin, political opinions, colour or creed) in order to be eligible for appointment to any office in the public service or in a disciplined force or any office in the service of a local government authority or of a body corporate established directly by any law for public purposes.
(6) Subsection (2) of this section shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection (4) or (5) of this section.
(7) Subject to the provisions of subsection (8) of this section, no person shall be treated in a discriminatory manner in respect of access to any of the following places to which the general public have access, namely, shops, hotels, restaurants, eating-houses, licensed premises, places of entertainment or places of resort.
(8) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any restriction on the rights and freedoms guaranteed by section 7, 8, 9, 10 and 11 of this Constitution, being such a restriction as is authorised by section 7(2)(a), 8(5), 9(2), 10(2) or 11(2)(a), as the case may be.
(9) Nothing in subsection (2) of this section shall affect any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Constitution or any other law.
3. VIEW ON MARRIAGE AND NON-DISCRIMINATION AND IDENTIFYING A CIRCULAR ARGUMENT by Bishop Nicholas Sykes
a. The Cayman Islands Constitution Order 2009 follows the European Convention on Human Rights Article 14 in securing without discrimination "the enjoyment of the rights and freedoms set forth in this Convention", in that the CI Constitution's range of application is confined to the "rights under this Part of the Constitution" (s.16) (1)." The optional ECHR Protocol 12 securing "the enjoyment of any right set forth by law" (the "freestanding right of non-discrimination") was not agreed to by the UK and other states, and is not reflected in the CI Constitution. The reasons for this are explained in the 2009 Draft Constitution Explanatory Guide pages 10 - 12.
b. The effect of this is that, for the Cayman Islands, s. 16 "Non-discrimination" cannot be applied to do anything other than to secure "the rights under this part of the Constitution" (s. 16(1)). In the Cayman Islands s.14 provides that "Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family". That is a constitutional right enjoyed by every consenting unmarried man or consenting unmarried woman, irrespective of his or her "race, colour, sex, etc", whether that right is chosen by him or her to be exercised or not. But s.16 cannot be deployed to provide for any further rights than those that are specifically provided for by the Constitution, and this limitation may be strengthened by other considerations as well, e.g. s.16 (4).
c. The Bermuda Constitution (some 40 years older than the current Cayman Islands Constitution) has neither a section on marriage nor a section equivalent to the Cayman Islands' s.23 on a Declaration of Incompatibility, and appears, perhaps by happenstance, to have no such limitation as the Cayman Islands' limitation upon its Nondiscrimination provision, so that it may be argued that its Nondiscrimination provison can legally be given the range of a freestanding provision. This is probably unfortunate and not originally intended, and its effect on marriage also not generally approved by the Bermudian electorate.
d. However, I would argue as a logical thinker that the the decision in Bermuda to allow "same sex marriage" would seem, absent the later Bermudian Human Rights Act, to have been faulty on the following grounds, grounds which would also apply here in the Cayman Islands.
(1) Even lacking any constitutional section on marriage, the understanding of marriage would need to be guided and defined by the territory's precedent.
(2) Marriage as traditionally and legally defined or understood in law would be the right of all qualified persons without discrimination. But such is not forced upon those who for any reason do not choose to exercise the right.
(3) Only if marriage is a priori re-defined as a union between two otherwise qualified persons of either sex (or any gender), might its being forbidden between persons of the same sex then be in breach of any Nondiscrimination section.
(4) It follows from the above that the legal argument for the redefinition, relying on Non-discrimination, would be circular and invalid.
Unfortunately,
however, due to the later (1981) insertion of Bermuda's Human Rights
Act with its quasi-constitutional effect, such an argument may be
unable to stand. This is because of the provision in s.29 that the Act
itself under certain conditions and to a defined extent gives the
capacity to the Supreme Court of Bermuda to overturn "any provision of
law" - even Common Law.