Discrimination

Constitutional Discussions 4: Discrimination. One of the fundamental human rights dealt with in the 1982 Constitution of Anguilla is protection from discrimination. Section 13 enshrines the right. It does not cover every kind of discrimination. It applies to discrimination on the grounds of race, place of origin, political opinion, colour, creed or sex. We will all remember the pride of the National Council of Women when they got the prohibition against discrimination on the grounds of sex included in the Constitution for the first time in the 1990 revision. That was the amendment which made it illegal to pay a woman in Anguilla less than a man for doing the same job. Before that, there were several ways in which the law in Anguilla discriminated against women.

There are exceptions to the right to be protected from discrimination. The Constitution mentions three. The first is numbered (4)(a). It permits us to pass a law discriminating against non-belongers. That is what makes it legal for us to prohibit non-belongers from owning land in Anguilla without a licence. If we did not have this exception, it might be illegal to pass a law discriminating against non-Anguillians who want to purchase property in Anguilla. The second exception is numbered (4)(b). It relates to what is called the “personal law”. This means matters such as adoption, marriage, divorce, burial, devolution of property on death, or other like matters. I cannot think of a good example at the moment. But, this is the exception that would permit us to make a law prohibiting a Christian from adopting a Muslim, or a white family from adopting a black child. We do not do any of this. I am only making up examples of what could be permitted. The third exception is numbered (4)(c). It allows us to discriminate in taxation. That is what makes it legal for us to tax a non-belonger differently from an Anguillian. Without this exception, the Aliens Landholding Licence tax might be challenged as being discriminatory.

The Members of the House of Assembly suggested a fourth exception to be numbered (4)(d). It would add the words, “for the provision of services in favour of Anguillians”. They wanted to make it legal to pass a law discriminating in favour of Anguillians in the provision of services. The problem they were discussing is what is to happen in the future, for example, if Indian contract labour parents begin to demand schools for their children. If we refused might we face the risk of discriminating in the provision of educational services on the basis of race, place of origin, or colour? What if our hospital is inundated by immigrant labour coming with medical problems? Can we make a rule that only Anguillans can get subsidised treatment, and all others must pay the full economic cost. Without this exception, it might be discriminatory for medical services to be provided at one rate for Anguillians and another rate for non-Anguillians.

I do not have a problem with that amendment to the Commission’s recommendations. What about you?