...fundamental human rights and freedoms in The Bahamas

Arriving at a culture of human rights: The case of The Bahamas

By Gaynel Curry

A culture of human rights speaks to how we engage as a people, respecting self, others and property; how we solve our problems, using non-violent responses; how easily and speedily we access justice and services, whether functioning as individuals or on behalf of the state; how we ensure that socio-economic development is inclusive of all members of society; how we strengthen the capacity of government institutions to respond to contemporary social ills, including rising crime and increasing socio-economic challenges; and the freedom with which we assemble and speak our cultural truth.

What are human rights?

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status,” as defined by the United Nations Office of the High Commissioner for Human Rights.  In essence, they are rights that one has simply by virtue of being human and cannot be taken away.  The exception is where rights are taken away according to due process such as in the case of a prisoner whose right to liberty is taken away when found guilty of a crime by a court of law.

The shift in thinking about human rights

Human rights are not a new concept.  Countries were allowed individually to define what human rights meant to them and as a result, some countries interpreted individual’s rights either narrowly (as in Switzerland which only allowed women to vote in 1971) or broadly (as in New Zealand where women were given the right to vote as far back as 1893).  It was the atrocities committed during the Second World War – primarily the holocaust of the Jews – that led the victors of the war to determine limits for countries on how they could treat people within their borders.  Essentially, they established common standards for countries to respect the human rights and dignity of persons.

The Charter of the United Nations can be considered the beginning of these efforts.  In 1945, at the  end of the war, the 51 founding members of the United Nations (UN) agreed that human rights would be a central feature of the organization – “promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”.  Today, 193 member countries, including The Bahamas, have signed the United Nations Charter, each one reiterating this commitment to “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction”.

What was the result of the shift in thinking about human rights?

While the charter established guiding principles to give meaning, purpose and language to the interactions between countries and individuals in terms of rights, the Universal Declaration of Human Rights (1948) became the framework to put meat on the bones by naming specific rights.  It identified two groups of rights: civil and political rights and economic, social and cultural rights.  The declaration was intended to lead one treaty of both groups of rights, but there was no consensus on this approach.  Ultimately, two treaties were agreed to, each one covering one of the two groups of rights – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Both were adopted in 1966 and entered into force 10 years later.  Many of the rights spelled out in these two covenants have been included in the constitutions of countries as constitutional rights, or in national laws such as labor laws, protecting the rights of workers.

ICCPR guarantees, for example, the rights of legal redress; equality; life; liberty; freedom of movement; a fair, public and speedy trial for criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; and freedom of association.  The covenant also forbids arbitrary arrests; torture; cruel, inhuman or degrading treatment or punishment; and slavery.

Having ratified ICESCR, states agree to apply these rights over a period of time (progressive realization): the right to earn a living by work; to safe and healthy working conditions; to join a trade union; to receive social security; to adequate housing; to be free from hunger; to receive health care; to obtain free public education; and to participate in cultural life.  Rights are interrelated and sometimes impossible to detach one from the other, as was highlighted at the 1993 World Conference on Human Rights.  For example, the deprivation of the civil right of association impedes a worker’s social and economic right to join a trade union.

Other international human rights treaties

The two covenants were just the beginning of what has evolved into an elaborate UN international human rights system.  This system includes a number of other treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination, which entered into force prior to the covenants in 1969 as consensus was more easily reached among countries on anti-discrimination issues; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1987); Convention on the Rights of the Child (CRC) (1990); Convention on the Protection of Rights of All Migrant Workers and Members of Their Families (2003); Convention on the Rights of Persons with Disabilities (CRPD) (2006); and the International Convention for the Protection of All Persons from Enforced Disappearance (2006).

Many of these conventions have what may be called spinoff conventions (optional protocols) that allow individuals to submit complaints of violations of their rights or that address specific thematic human rights issues.  For example, CRC has two optional protocols: one on the sale of children, child prostitution and child pornography and the other on the involvement of children in armed conflict.

All countries have ratified at least one of the 19 UN human rights treaties and optional protocols and according to the Office of the High Commissioner for Human Rights, 80 percent of countries in the world have ratified four or more of these core treaties.  Commonwealth Caribbean countries have, on average, ratified five of these core treaties; St. Vincent and the Grenadines have ratified the most among Caribbean states (eight) and St. Kitts and Nevis and St. Lucia the least (three).  All Caribbean countries have ratified CRC and CEDAW.  CRC is the most ratified international human rights treaty – the Unites States of America, Somalia and South Sudan are the only three countries in the world that have not yet ratified.

Where does The Bahamas stand with the international human rights treaties?

Soon after independence in 1973, The Bahamas joined the UN and began engaging with the international human rights system.  To date the country has ratified five UN human rights treaties which is about average for Caribbean countries.  Mindful of the country’s history of slavery and the fight for enfranchisement of persons of African descent, the CERD (Convention on the Elimination of All Forms of Racial Discrimination) was the first International Human Rights Treaty that the country ratified in 1975.  Subsequently, The Bahamas ratified CRC in 1991; CEDAW in 1993; and ICCPR and ICESCR in 2008.  The country has signed and indicated a willingness to ratify CAT.  The government also indicated that it was “acutely aware of the need to protect the rights of persons with physical or mental disabilities”, and reported to the Human Rights Council in January 2013 that it expects to soon sign and ratify CRPD.  To date, The Bahamas has submitted at least one report to each of the committees mandated to monitor and assist countries to implement CERD, CEDAW and CRC.

Do treaties offer the full picture on international human rights?

The UN international human rights system is not just about the treaties, that’s only half of the story.  It is also about the Human Rights Council (formerly the commission) which has an equally important role in the promotion and protection of human rights.  The council includes 47 of the 193 countries of the UN and has developed processes (mechanisms) such as working groups and special rapporteurs to assist it in monitoring country specific situations and thematic human rights issues.  For example, the situation of political and socio-economic rights in Haiti is monitored by a special rapporteur on human rights in Haiti.  Human trafficking is a global thematic issue which is monitored by a special rapporteur on trafficking in persons, especially women and children.

What is unique about the Human Rights Council is that it is the only body that has responsibility for the review of human rights in all 193 UN member states under the Universal Periodic Review (UPR).  The UPR is a peer review (by countries of a country) which results in recommendations to countries on how to improve their human rights record.  The UPR was introduced in 2006 and to date all countries, with the exception of Israel, have accepted the review.  The Bahamas completed its second UPR cycle in January 2013; the first was in September 2008.

Where does The Bahamas stand with the UPR?

Forty-five member states participated in The Bahamas’ UPR process and recommended strengthening legislation to protect the rights of persons with disabilities; establishing a National Human Rights Institution or Ombudsman; criminalizing marital rape; amending the legislation to ensure that Bahamian women can pass their nationality to their children in the same way that men can; placing a moratorium on executions with the view to abolishing the death penalty; ending by law all forms of corporal punishment; introducing legal measures to prohibit discrimination on the grounds of sexual orientation; improving the conditions at the Carmichael Road Detention Centre; strengthening measures to protect women against violence, including domestic violence and rape; increasing the age of criminal responsibility; strengthening measures to combat trafficking; and establishing an independent oversight body to receive and investigate excessive use of force by security forces.

Most of the recommendations are not new or unique to The Bahamas.  Many have been raised by the committees in the human rights treaty reporting process and have also been addressed to other countries, including Commonwealth and Caribbean states with similar historic, legal, socio-economic and cultural realities. The Bahamas recognizes the need to address some of these recommendations immediately and has been proactive in responding.  The Constitutional Reform Commission is expected soon to release its report, which, according to its mandate, should include discrimination and gender equality issues; citizenship and nationality rights; capital punishment and the distribution of state power vis-à-vis individual rights – many of the same issues raised at the UPR.

Embracing human rights and the way forward

As a human rights advocate, I see the recommendations from the UN international human rights system as opportunities rather than challenges for states.  They present an opportunity for governments to set priorities in terms of specific human rights issues and, more broadly, implement a human rights agenda, including with the appropriate allocation of resources.  They also give civil society and donors an opportunity to reflect on priorities and outreach in terms of vulnerable groups and they open a space for discussion and awareness-raising within society on important human rights issues.  Finally, they are fodder for academia to target their research with the view to presenting viable options for the consideration of institutions of governance.

Implementing human rights is not exclusively a function of government.  It should involve several elements of society as we all have a role to play in building a culture of human rights and translating this vision into a shared reality.  The Bahamas is well on its way, 40 years after independence, to building a strong nation.  Each human right should be seen as a building block for developing that strong nation and cultivating an environment in which all people can enjoy their fundamental human rights and freedoms.

 

• Gaynel D. Curry is the gender and women’s rights advisor in the United Nations Office of the High Commissioner for Human Rights in New York.  She has worked with the UN for 15 years in various other human rights advisory capacities in Geneva (Switzerland), East Timor, Afghanistan, and South Sudan. She holds a master’s degree in international human rights law from the University of Oxford; a master’s degree in international affairs (public international law) from the American University in Washington, DC; a degree in law (LLB) from the University of London; a bachelor of arts degree in history and social sciences from the University of the West Indies; and an advanced diploma in public policy and administration from The College of The Bahamas.

June 14, 2013

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Caribbean Blog International

Constitutional reform, pt. 5: ... ...In interpreting the Constitution of The Bahamas, the Court should give a generous interpretation to the constitutional provisions ...and avoid “the austerity of tabulated legalism”... ...In an open democratic society, the protection of human rights is not just the business of judges and lawyers... ...It is everyone’s business... ...As noted by Professor Lung-Chu-Chan, human rights can flourish, only when every member ...and every sector of the community is vigilant in defending and protecting them

Constitutional reform, pt. 5

By Alfred Sears

For the average person in The Bahamas, the most important part of the constitution is chapter III, which deals with the protection of fundamental rights and freedoms of “every person in The Bahamas”.  The constitution makes no distinction between citizens and aliens in relation to fundamental rights.  The fundamental rights, under article 15, are summarized as right to:

(a) Life, liberty, security of the person and protection of the law;

(b) Freedom of conscience, of expression and of assembly and association and;

(c) Protection for the privacy of his home and other property without compensation.

The rights, through articles 15 through 28, are stated broadly followed by varying degrees of exceptions or derogation clauses.  These provisions are known as the Bill of Rights.  The guarantees provided under the Bill of Rights are not static, but represent a continuing process of judicial decisions from the past to the present, in protecting our fundamental values of human dignity.  These guarantees are so highly cherished that they are deeply entrenched in our constitution; they can only be changed, pursuant to article 54 (3), through three quarters of all members of each house of Parliament and by a majority vote in a referendum of the Bahamian electorate.  The Bahamian Bill of Rights is part of the global development of international human rights law.

The Constitution of The Bahamas, like the constitutions of other Commonwealth Caribbean countries, was patterned after the Nigerian Independence Constitution and Bill of Rights of 1957, which itself was patterned after the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953.

 

Emergence of international human rights law

Before World War II how a government treated its own citizens was a matter of purely national concern.  The individual citizen was not considered a proper subject of international law.  However, the treaties concluded by the Allied countries with Germany, Italy, Japan and the Central European countries following World War II imposed obligations to respect human rights.

In the Nuremberg trials, political and military leaders who had acted in the name of the state were held personally responsible and punished for crimes against humanity.  For the first time national leaders were held accountable to an international tribunal for how they had treated their own citizens.

International human rights law was further strengthened by the international human rights conventions ratified after World War II.  For example, the preamble of the United Nations Charter states: “We the peoples of the United Nations determine to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom... .”

The charter, in article 1, sections 2 and 3, state the purposes and principles of the United Nations are: “2. To develop friendly relations among nations based on respect for the principles of equal rights, self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

“3. To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for the fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Furthermore, article 55 states: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: ...c. universal respect for, and observance for, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Article 56 posits a general obligation for member states to enforce human rights: “All Members pledge themselves to take joint and separate action in co-operation with the organization for the achievement of the purposes set forth in article 55.”

The term “pledge” in article 56 has been interpreted by the International Court of Justice, in its 1971 Namibia Judgment (1971 I.C.J 16), to mean that member states of the United Nations have accepted an international obligation to observe the Global Bill of Human Rights and that the provisions of the charter of the United Nations Charter are directly binding on member states.

This international observance of and respect for human rights is assumed as a necessary condition for international peace and security.  This assumption is also reflected in the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights.  Professors McDougal and Riesman have argued that the Universal Declaration, in particular, is now jus cogens, or part of customary international law.  The Bahamas, since its independence on July 10, 1973, has ratified all of these instruments and, therefore, has an obligation under international law to observe the human rights standards established by these international instruments.

Professors McDougal, Lasswell and Chen in the book “Human Rights and World Public Order” have posited that these instruments constitute a global bill of human rights that are now part of customary international law and reflect basic international community policies of the world constitutive process, crystallized in a norm of non-discrimination.

 

Enforcement of the bill of rights

Under the Bahamian Constitution, the Supreme Court is given plenary powers to issue orders, writs and directions it may consider appropriate for the enforcement of the Bill of Rights.  Article 28(1) provides: “If any person alleges that any of the provisions of articles 16 to 27 (inclusive) of the of the constitution has been, or is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.”

Therefore, the Supreme Court, through the power of judicial review, is the ultimate guardian of the freedoms and rights of the individual in The Bahamas and the arbiter of the meaning of the constitution as the supreme law of the land.

The court, informed by this evolving international human rights law, has to give vitality and meaning to constitutional provisions, which are framed, in a high level of generality.  Through judicial interpretation, therefore, that the constitution becomes a living document, constantly evolving in response to the changing circumstances, needs and demands of the Bahamian society.  The Privy Council has constantly held that our courts should take a contextual, rather than a textualist, approach in interpreting and applying constitutional provisions to concrete cases.

The Privy Council in the case Ministry of Home Affairs v. Fisher (1980) AC 319 held that our courts should have full regard for this evolving international human rights law when interpreting our Bill of Rights.  In this case, a Bermudian man had married a Jamaican woman who brought her children, who had been born out of wedlock, to Bermuda.  Under the Bermudian Constitution, a stepchild of a citizen was entitled to Belonger status.  The Crown contended that an illegitimate person could not benefit under the stepchild provision because there was a legal presumption that the word “child” in legislative and other formal documents connotes “legitimate child”.

Lord Wilberforce, writing for the majority of the Privy Council, reasoned that since the Constitution of Bermuda was influenced by the human rights norms in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the United Nations Declaration of Human Rights and the fact that the Bermudian Constitution uses the phrase “every person” in its Bill of Rights enabled the conclusion that the term “child” meant any child and was not restricted to legitimate child.  Specifically, Lord Wilberforce held that: “...Chapter I is headed ‘Protection of Fundamental Rights and Freedoms of the individual’.  It is known that this chapter, as similar portions of other constitutional instruments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms.  That convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda.  It was in turn influenced by the United Nations Universal Declaration of Human Rights 1948.  These antecedents, and the form of Chapter I itself, call for a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.”

In interpreting the Constitution of The Bahamas, the Court should give a generous interpretation to the constitutional provisions and avoid “the austerity of tabulated legalism”.  In an open democratic society, the protection of human rights is not just the business of judges and lawyers.  It is everyone’s business.  As noted by Professor Lung-Chu-Chan, human rights can flourish, only when every member and every sector of the community is vigilant in defending and protecting them.

Over the course of the next several articles of this series, I will examine and critically appraise the individual rights and freedoms of our Bill of Rights and make certain recommendations for reform for the expansion and the more effective protection of our fundamental rights, consistent with the evolving global Bill of Rights.

 

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Sep 20, 2012

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