Cayman's "Legal Duty" - A Response to a recent article

An article entitled "CAYMAN HAS 'LEGAL DUTY' TO AMEND DISCRIMINATORY LAWS" was published in a local newspaper on the 12th February 2015. The article was authored by James Whittaker and quotes some well qualified lawyers. To be fair, it should be conceded at the beginning of this response that the article is not entirely without merit and should be given as much positive response as it deserves. However, the article revealed, in my view, some very disturbingly patent errors, both in the general tenor of its arguments and also in its implied threats of the likelihood of the legal action that it prescribed.

It is my duty publicly to point out the apparent errors and their nature, which I shall try to do as exhaustively as possible, while also humbly acknowledging that though I have consulted with lawyers about the matter I am not myself a lawyer.

The article derives from the lectures that were arranged by the students of the Cayman Islands Law School, in a triple-lecture programme that was promoted under the general heading "Misogyny and Homophobia". This seemed an unfortunate start to describing any lecture series, because the very words are inherently prejudicial from the very beginning: they seemed to show that the promoters and lecturers came to the programme with the underlying but evident bias, ab initio, of levelling accusations against the society that hosted them. It should be obvious that the burden of the proof of the truth of negative claims about the host community such as "Misogyny and Homophobia" should be squarely upon those designing and giving the lectures. The ploy of asserting this accusatory claim as the starting-point for the development of a plea for changing the community's laws must rightly fail in its intention. It was chiefly this accusatory framework being in the initial stated design that confirmed me, and I should think some other right-thinking individuals, in the decision NOT to attend the lectures. My purpose now is not to respond to the lecture series directly, but rather to respond to the 12th February 2015 article that was written in light of the lecture series and supporting the call made by one of the lecturers for a change in the laws of the Cayman Islands.

I want to preface my response with the general observation that the way the word "discrimination" is used in modern legal parlance is extremely misleading and unfortunate, because to discriminate is in fact to make distinctions, and to make distinctions is a fundamental part of being human. If we could not discriminate between concepts we could not think. If we could not discriminate between sounds we could not talk. If we could not discriminate between, say, two objects and three objects, mathematics of any sort would be impossible. It is axiomatic in the Scriptures and in all of moralism and philosophy that distinctions must be drawn between the good and the bad, or between the good and the better, or between the ugly and the elegant, or (say) between the wasteful and the productive - and in Christian thought between law and grace. Indeed, without the possibility of discrimination, there is no possibility of exercising the capacity of being human. It is true that as a result of the fact of the human exercise of discrimination, the "crooked timber" of our humanity can distort and spoil our capacity for discriminating rightly. As our own Cayman Islands constitution correctly implies, to discriminate wrongly involves making UNJUSTIFIABLE distinctions, rather than distinctions that are right (see CI Constitution s. 16(2)). In my view it is urgent for the worldwide legal fraternity likewise to amend their misleading language and error-filled thinking about discrimination, which they have wrongly demonised to the great and enduring hurt of western human society in general and its individual human members. This hurt has now indeed reached the Cayman Islands, and for the well-being of our Islands it needs to be firmly addressed before any substantial damage from this cause is done here.

To cut a long story short about the general trend of the article, it can fairly be said that if the concept of discrimination were "de-demonised" in the way it should be, the article itself would have to be entirely re-written. This is because the general argument of the article as it stands is circular: it begins with the unreasoned premise that making a distinction between different things of what are considered to be of the same class is inherently wrong, and so naturally the conclusion of it is that laws must be changed or introduced that prevent these "inherently wrong" discriminations being made. No reasoned argument or logic needs to made to connect the initial position with the conclusion, because the one is already inherent in the other. Because discrimination is "always wrong" by definition, the conclusion that the various instances of discrimination described should be legally proscribed does not just follow from the premise: it actually inheres in the premise. This is called a tautology, otherwise known as a circular argument. As with so many weak or non-existent arguments, the threat of being called nasty names, such as "bigot", is also introduced to give it some appearance of substance. But I am old enough to remember that Communism was (like what is being advocated now) considered by many in the West to be "ahead of the curve", or "inevitable", and that we too should embrace it ("or else ...."). Yet, just a few decades later the Berlin Wall had been breached and the Communism that had once been seen to be so inevitable had failed throughout Europe, and even in the countries of the once mighty Soviet Union.

A reasoned approach to issues of discrimination must always include questions of justifiability, and the thought habit of most modern lawyers and commentators omits this crucial factor. It is the foremost "Blind Spot" disfiguring today's discrimination legislation. I am going to be blunt. Let someone explain to me in a reasoned argument why making a distinction between sex (sexual intercourse between persons of opposite sex) and its anal counterpart is not a necessary and right thing to do. This kind of failure - one that is bolstered and pandered to by defective non-discrimination ideas - is at the root of the most fundamental defects of this article of the 12th February 2015 and a thousand other articles, as well as radio and TV presentations, all over the West. Disliking or fearing some of the sterner corollary implications of making such a necessary distinction does not provide any good reason for failing to make it in the first place.

In conclusion I want to add the substantial point that the threat of legal action being portrayed in the article is most probably unreal and untrue. Perhaps the most surprising thing about the article is that there is no mention in it of the Cayman Islands constitution, which includes within it the Bill of Rights, Freedoms and Responsibilities. The fact that the Cayman Islands Bill of Rights, Freedoms and Responsibilities (CIBRFR) is in force as the supreme law of the Cayman Islands makes any possibility of a direct influence of the European Convention on Human Rights (ECHR) on compelling a change in local law extremely tenuous, to say the least. One can only speculate that the visiting professor was never told that the Cayman Islands had a constitution and that this constitution contained a Bill of Rights, a reality that does not obtain in the country from which he was visiting. If that is the case, then those who invited him as well as the lecturer himself failed in their responsibility to ensure that he was forearmed with the necessary facts obtaining in a legal environment that differed in important ways from the one he was coming from.

CIBRFR came into force in the Cayman Islands because it was considered to be necessary for rights such as those protected by ECHR to be protected here by our own constitution: moreover, a referendum was held throughout the Cayman Islands in 2009 which provided a substantial popular mandate for its introduction. While the UK itself does not currently have an enforceable national Bill of Rights, relying on its Human Rights Act to connect with the European rights regime, nearly every one of the Overseas Territories of the UK has its own Bill of Rights. Like others, the Cayman Islands Bill of Rights, Freedoms and Responsibilities is compliant with ECHR. Challenges to local legislation on the grounds of rights deficiencies are judged locally on the basis of the provisions of CIBRFR and are not likely ever to be heard by any international court such as the European Court of Human Rights. I am advised that the process for a matter to be brought before the European Court of Human Rights is that it must have first exhausted the local judicial process. In Cayman that means it would have to start in Grand Court then be appealed to the CI Court of Appeal, then, if so given leave, be appealed to the Privy Council. It is then debatable as to whether after Privy Council it could go to the European Court, because the Privy Council is the final court of appeal for Cayman. But in any event the CIBRFR is compliant with the European convention under which such a case could be adjudicated.

To end on a positive note, I certainly agree that our laws ought to be amended wherever it is found necessary to bring them into compliance with our own Bill of Rights. That is what we should be concentrating on, rather than being distracted by red herrings.

Bishop Nicholas Sykes

Chairman, Cayman Ministers' Association

Former member of the CI Human Rights Commission.