St Hilda's - The opportunity for a new law

Sometime in the year 2015 the traditional High School St Hilda's High School (for Girls) revoked the appointment of its head girl. No doubt causing hurt to her feelings. Under normal circumstances such a decision by a school principal would not be of concern to the members of the public. However, in this case, the issue of the child's religion seem to have been the reason advanced by the school for the decision and thus the school's decision engages with the issue of religious discrimination in schools.

This for me makes the matter one which can be appropriately described as one which is of wider public importance and as such it is correct that there has been public commentary on the issue. However, I would be the first to remind everyone that as there is a young person involved, we should perhaps seek to protect her privacy by refraining from printing her name in the media.

The Jamaican Constitution at section 13 does prohibit discrimination on the grounds of religion and this is a matter that in the context of our country is of vital importance, especially when one reflects on the history of the Rastafarian religion in our region.

The question that should naturally come to mind is: what exactly does the Constitution prohibits and can there be any defence by the school to such an action? Unfortunately but consistent with constitutional prohibitions against discrimination throughout the Commonwealth, the Jamaican constitution does not outline the manifestations of discrimination that are prohibited.

In this connection we remind ourselves that in a broad sense the common law and in some countries, Statute law, creates or recognises two ways in which discrimination can take place - direct and indirect discrimination. Direct discrimination, in the religious context, occurs when a body "J" has a rule that says persons who adhere to religion "K" will not be given access to the position of Commissioner or Police or Chief of Staff. Such a provision would be directly aimed at persons who adhere to a specific religion. That would be directly discriminatory and there are those of us who do recall that in the field of education it was not long ago that some schools in Jamaica operated a policy of excluding Rastafarian children from attending their institutions and additionally there was a time when the Department of Correctional Services deliberately trimmed persons who were Rastafarians who so happen to have been sentenced by the Court. So let us be clear, there are institutions in our country, educational and non-education ones that have practised direct discrimination for decades, much with the tacit approval of ministers and the society at large.

On the other hand, indirect discrimination refers to the situation where institution "J" has a practise, requirement, provision, or criterion which on the surface is applicable to everyone but on closer analysis that practise or requirement disproportionately affects members who belong to religion "K".

A typical example that comes to mind is a requirement that everyone who wishes to attend a school must wear a straw hat, but young Imani who is a Rastafarian wears a what is not a straw hat but a head gear which is more in keeping with her faith. This policy on the surface seems to be applicable to everyone, but on closer analysis it has the potential of excluding in a disproportionate sense, members of religion X whose adherents wear a different head gear.

Discrimination

Indirect discrimination perhaps occur more often than direct discrimination as individuals and institutions are more sophisticated in their quest to exclude and thus it will require a high degree of vigilance and familiarity with discrimination for indirect discrimination to be identified and challenged. It is instructive to appreciate that in most jurisdictions, indirect and not direct discrimination, can be justified and the laws within most States does provide for specific instances where direct discrimination will be justified but the discriminator will be required in those instances to provide the evidence to support the view that they come within the ambit of permitted discrimination.

In the context of the St Hilda's scenario what we have, if the reports in the media are anything to go by, and if we believe what the Anglican Church has said in response, is an instance of direct discrimination, for which there is no defence at common law. The law rightfully does not facilitate any defence to such conduct and those who are found to be in breach of the Constitution must be made to incur the costs of the injury to the feelings caused to the discriminated.

civic activities

But of course I have heard persons assert that, 'well she knew full well before she entered the school that it was an Anglican School and that attending and participating in civic activities would be required of anyone who is appointed as a head girl of the institution'.

The problem with that argument is that it conflates a religious observation with national duties, and furthermore a school is not an extension of a Church even when the Church is a major influencing factor on the school. Jamaica unlike say Pakistan is not a Religious State, though I accept that Christianity is the dominant religion in our country, but it does not give any public institution the right to discriminate against those persons who choose not to be an adherent to a specific denomination.

The Constitution, by prohibiting religious discrimination, confers on all citizens the right to belong to any religion that he or she decides to adhere without fearing that consequences will flow from the exercise of such a choice and this is a point that the Anglican Church must be reminded of, as if we follow the approach of its head, it is not long before only those who adhere to the Anglican principles or the more traditional Christian principles, will be allowed to occupy positions of influence in either schools or the Society. This would be not only a breach of the Constitution but equally it would undermine the fabric of our country's democratic traditions which is encapsulated in the national motto.

Beyond the immediate St Hilda's issue, it is my view that the very fact that the Constitution is silent on the issue of the types of discrimination (direct and indirect) is reason for parliamentarians to give serious and I would say urgent consideration to the need for an Equality/Discrimination Act.

The benefit of such an Act, in my view, in the first instance, is that it would serve to supplement the very general discriminatory provisions outlined in the Constitution by outlining direct and indirect discrimination. In the case of the latter manifestation of discrimination such a Discrimination Act would make provisions for those instances where indirect discrimination can be justified, as the Constitution is silent on such an important issue.

The importance of such a provision is obvious to those who appreciate that there are some instances where in the context of the provision of a service or goods, there might be a justifiable and proportionate reason (usually business) for a requirement which is indirectly discriminatory.

However, at present we have no such provision (save in the Disability Act 2014) in the Constitution and across the various strands of Jamaican Discrimination law, we will need it as the silence of the Constitution must not be left unchecked on such an important matter. This is the opportunity and a wider lesson that we should take from the St Hilda's lesson: an opportunity to strengthen our weak discrimination laws by enacting an Equality/Discrimination Act.

- Matondo Mukulu is a practising Public Law Barrister.