The right to non-discrimination

The right to non-discrimination is an important human right. Like the right to equality, the right to non-discrimination is mentioned in numerous international, regional, and local documents. However, unlike equality, which is just fleetingly mentioned in the preamble to Saint Vincent and the Grenadines’ Constitution (“SVG’s Constitution”) under the concept of “equality before the law”, the right to non-discrimination appears to be expanded upon more under the Bill of Rights.

Section 13 of SVG’s Constitution titled “Protection from discrimination on the grounds of race, etc.” explicitly protects persons in SVG from discrimination. However, according to SVG’s Constitution, what exactly is discrimination? On what grounds is discrimination prohibited? And who is prohibited from discriminating against others? We will look closer at these questions in this article.

Section 13 (3) of SVG’s Constitution states:

“In this section, the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by sex, race, place of origin, political opinions, color or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are recorded privileges of advantages which are not accorded to persons of another such description.”

From section 13 (3) of SVG’s Constitution, the word “discriminatory” in the context of SVG’s Constitution is defined.

Moreover, from section 13 (3) of SVG’s Constitution, we can see that discrimination based on six (6) grounds is expressly prohibited. These grounds are sex, race, place of origin, political opinion, color or creed.

There is a view espoused in certain Privy Council cases that because certain grounds are expressly excluded under the Constitution, it means that the framers of the Constitution deliberately intended for them to not be considered. However, I disagree. It is obvious that there are many grounds absent from section 13 (3) of SVG’s Constitution upon which persons can be discriminated against that are not expressly included. The Constitution is a living instrument and should be given a generous interpretation, especially when it comes to protecting people’s fundamental rights and freedoms!

The Declaration of Principles on Equality provides a more expansive list of grounds upon which discrimination can be prohibited against, article 5 of the same states:

“Discrimination must be prohibited where it is on grounds of race, colour, ethnicity, descent, sex, pregnancy, maternity, civil, family or carer status, language, religion or belief, political or other opinion, birth, national or social origin, nationality, economic status, association with a national minority, sexual orientation, gender identity, age, disability, health status, genetic or other predisposition toward illness or a combination of any of these grounds, or on the basis of characteristics associated with any of these grounds.”

Maybe in the future, when hopefully there will be another attempt at Constitutional reform in SVG, more grounds can be taken into consideration and the grounds upon which discrimination is currently prohibited can be expanded.

Now that we have briefly looked at the expressed grounds upon which discrimination is prohibited under section 13 (3) of SVG’s Constitution, let us look at who exactly is prohibited from discriminating against others based on the expressed grounds.

Section 13 (2) of SVG’s Constitution states:

“(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no persons shall be treated in a discriminatory manner by any persons acting by virtue of any written law or in the performance of the functions of any public office or any public authority.”

In the case of Digital Wings Ltd. and Lekeicha Caesar-Toney et SVGHCV2016/0214, the court stated that this section forbids:
“1. the State from making any law which is discriminatory of itself or by its effect; and

2. state functionaries such as the registrar from treating any person in a discriminatory manner…”

From the above, we can see that section 13 of SVG’s Constitution does not protect persons from discrimination from private individuals or entities. It only focuses on discrimination from the State or public authorities.

Today, I encourage us to continue to educate ourselves on the right to non-discrimination.

Author: Jeshua Bardoo is a Vincentian Barrister-at-law and Solicitor. He is also the President of Equal Rights, Access and Opportunities SVG Inc. He can be contacted via email at jeshuabardoo@gmail.com