(3)

...FOR A HEALTHY FUTURE [click for audio]

Ideally all legal documents, laws and constitutions should proclaim the fact that "discrimination" is in its essence positive, good and necessary to humanity, but that like all good things in the hands and hearts of humans it can be misused terribly. The prohibitions and sanctions that such laws and constitutions provide for are intended to be applied to such misuse of discrimination, or what we might term "unjust discrimination", rather than to the good, right and necessary thing that is discrimination itself. However, we do not live in an ideal world, and especially in the Western world, where anti-discrimination statutes have been developed - and in Cayman too as part of the Western world - bodies of law have been built up that incorporate the seriously erroneous assumption that discrimination itself is dangerous enough to be sanctioned, or at least are in serious danger of doing so.

The 2009 constitution of the Cayman Islands is particularly notable in this context, not because it is any worse than other constitutions in its characterisation of discrimination, but because it contains significant features that provide for some important limitation of the damaging effects of the erroneous assumption. It will be good for the reader to have a copy of the 2009 Constitution to hand as we look at Section 16 titled "Non-discrimination", to be found in Part One. The very title, of course, implies the erroneous assumption that discrimination itself is dangerous enough to be sanctioned rather than its misuse, and so therefore the whole section must do the same. Nevertheless the section contains features that provide some significant limitation of the effects of such an erroneous assumption, and for that the drafters and negotiators should be commended. It was well-known at the time of its negotiation, though perhaps forgotten by many now, that Part One "Bill of Rights, Freedoms and Responsibilities" ("BR") applies only to what is defined as "government" in its relationship to resident individuals.

Another important limitation is the phrase to be found in s. 16(1) - the first sub-section under Non-discrimination - limiting the application of "Non-discrimination" to treating "any person in a discriminatory manner IN RESPECT OF THE RIGHTS UNDER THIS PART OF THE CONSTITUTION" (emphasis added). Section 16 does not extend to all rights that can conceivably be asserted, but only those the constitution itself protects. This limitation mirrors the equivalent limitations provided by Article 14 of the European Convention on Human Rights to which the UK and her territories are signed up, the limitation, namely, of the "rights and freedoms set forth in this convention."

A third limitation is the definition of "discriminatory" in s.16(2) as "affording different and unjustifiable treatment to different persons", rather than merely "affording different treatment to different persons." This, in my view, does go a long way towards correcting in our Constitution the effect of the basic problem of the mis-characterisation of discrimination that Western law projects at this time, because only "unjustifiable" treatment can be sanctioned under this section.