The Cayman Islands Human Rights Committee issued a response last week refuting ministers of government and ministers of religion stating free-standing rights against discrimination would not hurt Caymanians.
The response came after the Caymanian Compass ran an article last Monday under the title ‘Discrimination said to be necessary’ that detailed comments made by Cabinet Minister Alden McLaughlin and Pastor Al Ebanks at a public meeting about the proposed constitution on 19 February.
‘The government’s belated statements about threats to Caymanian interests are wholly misleading,’ the HRC said in its response. ‘The draft Constitution goes to great lengths legitimately to protect Caymanian interests.’
Both Mr. McLaughlin and Pastor Ebanks expressed strong opinions about the ramifications for the Cayman Islands had there been a general or ‘free-standing’ right against discrimination in the bill of rights, part of the proposed constitution.
Among other things, Mr. Ebanks said on behalf of the Cayman Ministers’ Association that a free-standing right against discrimination would cause Caymanians to lose control of their own destiny; jeopardise their employment; negatively impact the immigration system and law enforcement; and empower and embolden criminals to manipulate the legal system in inappropriate ways.
‘The call for a free-standing discrimination clause would, in our opinion, be a disaster not waiting to happen, but one invited or welcomed to happen for Caymanian business infrastructure,’ he said, adding that it would also increase taxation and be ‘a death blow to traditional Caymanian values’.
Minister McLaughlin also warned that a free-standing right against discrimination would create the need for a different kind of taxation because the government would no longer be able to give preferential treatment to Caymanians with regard to things like healthcare, education and collage scholarships.
‘There are reasons why government needs to discriminate in certain circumstances,’ he said.
The HRC said in its response the Cayman Islands Government would not accept the obligation not to discriminate against women, children, the disabled, the elderly, gays and lesbians and other groups listed in Section 16 (2) of the draft constitution in relation to the provision of healthcare, employment, housing, access to public spaces and many more important aspects of daily life.
‘During the constitutional negotiations, the reason put forward for this was that the government could not accept a full obligation not to discriminate against gays and lesbians,’ the response stated. ‘The result was the ‘half-a-loaf’ compromise, where everybody is listed in section 16, but the right which is granted is not as full or wide ranging as originally intended.’
The HRC noted that the government never put forward any of the objections outlined by Mr. McLaughlin at the 19 February meeting at the Family Life Centre as reasons for cutting back the effect of Section 16 in the bill of rights.
‘Leading up to the constitutional talks, the government supported the inclusion of a free-standing right [against] discrimination for all,’ the HRC stated. ‘However, the Government seems to have changed its position on Section 16 and is now making statements, such as those addressed in this [response] – for example, the inability to protect Caymanians, the implication for educational obligations – which are completely inaccurate and misleading and could only therefore be interpreted as an attempt to stir up fear amongst Caymanians on this issue, perhaps so that out of fear, they will not demand their full rights.’
The HRC explained the effects for Caymanians of a free-standing right against discrimination.
‘The inclusion of a free-standing right would not mean that the government would be prevented from acting to protect Caymanians where it is justified to do so,’ the HRC said. ‘Section 16 will only prevent unjustifiable discrimination. Section 16 will not prevent government acting in favour of Caymanians or giving Caymanians preferential treatment where there is reasonable and objective justification for doing so.’
The HRC pointed out that Section 16 (4) of the proposed constitution ensures Caymanians’ rights are protected.
‘It says that no law passed by the government will be discriminatory simply because it discriminates in favour of Caymanians in relation to employment, business, any profession or movement within the Cayman Islands,’ the HRC response stated.
‘It is simply wrong to say that we will lose control of our immigration law as a result [of a free-standing right against discrimination].’
HRC Chair Sara Collins said her group understands the need for discrimination in certain cases.
‘Our position is that the constitution allows justifiable discrimination,’ she said. ‘Otherwise you wouldn’t have any immigration controls.’
With regard to education, the HRC pointed out that Section 20 of the constitution contains an aspirational right to education that the government agreed should be included.
‘It obliges the government to take reasonable steps, within its resources, to achieve the progressive realisation of the goal of providing every child with primary and secondary education,’ the HRC’s response said. ‘Even if section 16 were removed entirely, the government would still have that obligation.’
The HRC said Section 16 did not impose an obligation to provide free healthcare or free education.
‘It does not prevent the government giving preference to Caymanian nationals for these things,’ the HRC said. ‘However, it could and should prevent the government from discriminating where it is not reasonable to do so.’
Speaking afterwards, Ms. Collins expressed her disappointment with some of the claims made during the 19 February meeting.
‘In this debate, we should all be held accountable and should not make casual and inflammatory statements that we cannot back up,’ she said. ‘Can Pastor Al please explain to us how a right not to be discriminated against… emboldens criminals to manipulate the system?’
Ms Collins also commented on Mr. Ebanks’ claim that a free-standing right against discrimination would cause Caymanians to lose control of their destiny.
‘The way you give people control over their destiny is by giving them rights to control it,’ she said.
As for a free-standing right against discrimination being a death blow to traditional Caymanian values as suggested by Mr. Ebanks, Ms Collins said traditional Caymanian values have always been to treat others in the way you want to be treated.
Speaking about a claim made by Mr. Ebanks that only 16 countries had free standing rights against discrimination and that ‘they were all communist, except for two’, HRC Deputy Chair Melanie McLaughlin said the claim was false and added that Mr. Ebanks should be aiming to educate his church members instead of misinforming them.
Other countries she mentioned that have free-standing rights against discrimination in their constitutions include the United States, Spain, Ireland, South Africa and the British Virgin Islands.
Ms Collins noted the BVI’s constitution goes so far as to list ‘sexual orientation’ as basis on which the government cannot discriminate.
‘And the sky hasn’t fallen in the BVI, and they’re just as conservative as Cayman is,’ she said.