By Rev Nicholas Sykes

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)

Comment on
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.

ECHR Article 14- prohibiting discrimination

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.