|
Home
Up
Birmuda
| |
for the full report, please
visit the
Human Rights internet site:
|
CORE DOCUMENT FORMING PART
OF THE REPORTS OF STATES PARTIES OVERSEAS
DEPENDENT TERRITORIES AND CROWN DEPENDENCIES OF
THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND |
Distr.
GENERAL
HRI/CORE/1/Add.62
24 January 1996
ENGLISH ONLY |
| [14 September 1995]
Introduction
1. In accordance with the consolidated guidelines for the
initial part of the reports of States Parties (HRI/1991/1) which was
transmitted under cover of the Secretary-General's Note dated 26 April 1991
(HRI/CORE/1), the Government of the United Kingdom submits, annexed
herewith, the core document (the "country profile") in respect of:
(i) Each of its Dependent Territories overseas to
which one or more of the various United Nations human rights treaties
applies, that is to say, Anguilla, Bermuda, the British Virgin
Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Hong Kong,
Montserrat, Pitcairn, St. Helena and the Turks and Caicos Islands (annexes
I-XI).
(ii) Each of its Crown Dependencies to which one or more of those treaties
applies, that is to say, the Isle of Man, Guernsey and Jersey (annexes
XII-XIV).
2. Appendices referred to in the annexes are available for consultation in
the secretariat. |
| |
|
BERMUDA |
| I. LAND AND PEOPLE
|
| .1
Although it is customary to refer to the whole territory of Bermuda as "the
Islands of Bermuda", it in fact consists of a group of approximately 138
islands and islets situated in the Atlantic Ocean some 586 miles due west of
Cape Hatteras in N. Carolina. The 10 principal islands, which form a chain
about 22 miles long, are very close to one another and are connected by
bridges. They vary in size but the main island, which is about 14 miles long
and has an average width of 1 mile, contains about 9,000 acres of land. Its
highest point is only 259.4 feet above sea level. The aggregate area of all
the other islands is about 4,240 acres. There are no rivers or lakes.
|
| 2. The City of Hamilton has been
the capital of Bermuda since 1815. Its population is approximately 1,100.
The Town of St. George was Bermuda's first capital. Its population is 1,648. |
| 3. Bermuda is believed to have
first been discovered by a Spanish navigator in about 1503 but it was
completely uninhabited when it was first settled by emigrants from England,
acting under the authority of a Royal Charter, in 1612. In 1684 the Charter
was annulled and the government of Bermuda was assumed by the British Crown.
It has remained a British dependency ever since. |
4. Background statistical
information, using the most up-to-date information available, is as follows:
- Per capita income $23,980 (1993)
- Gross national product $1,408.8 million (provisional
1992/93)
- Rate of inflation 2.5 (1993)
- External debt $80 million (provisional 1993)
- Rate of unemployment Males 4 per cent (1991) Females 2
per cent (1991)
- Literacy rate N/A
- Population 59,040 (1993)
- Population by reference The great majority of the
settled to mother tongue population of Bermuda have English as their
mother tongue. There is a small Portuguese-speaking community but their
exact number is not known. There are no other linguistic minority
communities.
- Life expectancy Males 78 years (1991) Females 70 years
(1991)
- Infant mortality rate 11.6 per 1,000 live births
(provisional 1992)
- Birth rate 15.5 per 1,000 (provisional 1992)
- Mortality rate 7.9 per 1,000 population (provisional
1992)
- Maternal mortality rate N/A
- Fertility rate 60 per 1,000 women aged 15-44 (1992)
- Percentage of population under 15 years old Males 5.076
per cent (1991) Females 5.699 per cent (1991)
- over 65 years old Males 2.199 per cent (1991) Females
3.197 per cent (1991)
- Percentage of population Rural 0 per cent Urban 100 per
cent
- Percentage of households headed by women 34 per cent
(1991)
|
| 5. A copy of the Bermuda Digest
of Statistics 1993, which contains a number of other useful statistics
compiled and published by the Statistical Department of the Ministry of
Finance of the Bermuda Government, is attached as appendix 1. |
| II. GENERAL POLITICAL
STRUCTURE |
| A. System of government |
| Government |
| 6. The present Constitution,
which came into force on 2 June 1968, is contained in Schedule 2 to the
Bermuda Constitution Order 1968 as amended from time to time. A copy of that
Order in its current form is attached as appendix 2. |
| 7. Chapter I of the Constitution,
which is discussed in more detail in Part III below, contains provisions
which protect the fundamental rights and freedoms of the individual. The
main features of the Constitution, apart from chapter I, are as follows. |
| (a) The Executive |
| 8. The Governor is appointed by
the Queen on the advice of the United Kingdom Secretary of State for Foreign
and Commonwealth Affairs, to whom he is responsible. Executive authority is
vested in the Governor but he is required to obtain, and act in accordance
with, the advice of the Cabinet, or a Minister acting under the general
authority of the Cabinet, in the exercise of all his functions except in
certain specified cases. These principally concern functions involving
external affairs, defence, internal security and the police (for which the
Governor retains direct responsibility, though he may delegate some
responsibility in these matters to a Minister) and certain other specific
functions which he is empowered to exercise either in his discretion (e.g.
the appointment of three members of the Senate) or in accordance with the
advice of, or after consultation with, or on the recommendation of, some
other person or authority (e.g. the appointment of judges). |
| 9. The Cabinet consists of a
Premier and not less than six other Ministers. The Premier is the member of
the House of Assembly who appears to the Governor to be the best able to
command the confidence of a majority of its members. The other Ministers are
appointed by the Governor, in accordance with the advice of the Premier: at
least one but not more than two of them must be appointed from among the
members of the Senate and the remainder from among the members of the House
of Assembly. The Governor, acting in accordance with the Premier's advice,
may also appoint Parliamentary Secretaries (to assist Ministers) from among
the members of the Senate and the House of Assembly, but there may not be
more than 12 Ministers and Parliamentary Secretaries appointed from among
the members of the House of Assembly. |
| 10. The Cabinet is collectively
responsible to the Legislature for any advice which it gives to the Governor
or which is given to him under its general authority and for all things done
by a Minister in the execution of his office. If the House of Assembly
passes, by an affirmative majority of all its members, a resolution of no
confidence in the Government, the Governor must either dismiss the Premier
(and all the other Ministers then also vacate their offices) or dissolve the
Legislature. |
| 11. The Cabinet is summoned only
by the authority of the Premier and he (or, in his absence, another Minister
appointed by him) presides over its meetings. Portfolios are allocated to
individual Ministers by the Governor acting in accordance with the Premier's
advice but, except for certain limited purposes, these may not include the
matters for which the Governor retains direct responsibility (external
affairs, defence, etc.) or certain other specified matters (e.g. the
judicial functions of the courts, the conduct of criminal prosecutions, and
appointments, etc. to public offices). |
| 12. The Constitution also
establishes a Governor's Council for the purpose of considering matters for
which the Governor retains direct responsibility. This Council consists of
the Governor (as Chairman), the Premier, and not less than two or more than
three other Ministers appointed by the Governor after consultation with the
Premier. |
| 13. The Constitution also
requires the Governor to appoint an Opposition Leader whom he is obliged to
consult in the exercise of various of his functions (and on whose advice he
is, in certain cases, obliged to act). The Opposition Leader is the member
of the House of Assembly who is the leader of the largest opposition party
in that House or, if there is no party in that position, the member of that
House who appears to the Governor to be acceptable as Opposition Leader to a
majority of opposition members. |
| 14. Except in relation to certain
offices for which specific provision is made by the Constitution, the power
to appoint persons to public offices and to remove and exercise disciplinary
control over persons so appointed is vested in the Governor, acting in
accordance with the recommendation of the Public Service Commission. This
Commission consists of a Chairman and four other members, all of whom are
appointed by the Governor, acting after consultation with the Premier, who
must first have consulted the Opposition Leader. Members of the Commission,
who may not themselves be public officers or members of the Legislature and
who are not eligible to be appointed to a public office for a period of five
years after they cease to be members of the Commission, are appointed to the
Commission for a fixed term of between three and five years and are in the
meantime protected from arbitrary removal from office. |
| (b) The Legislature |
| 15. There are two Houses of the
Bermuda Legislature: the Senate and the House of Assembly. There are 11
Senators, of whom 5 are appointed by the Governor in accordance with the
advice of the Premier, 3 are appointed by him in accordance with the advice
of the Opposition Leader and 3 are appointed by him in his discretion. There
are 40 members of the House of Assembly, all of whom are elected. To be
qualified for appointment to the Senate or for election to the House of
Assembly, a person must be a Commonwealth citizen of the age of 21 years or
more and must possess "Bermudian status" under the relevant law. A candidate
for election must also be ordinarily resident in Bermuda. There are also a
number of positive disqualifications in both cases: e.g. if the person in
question is of unsound mind, or is currently serving a sentence of more than
12 months' imprisonment, or has been convicted of certain election offences,
or holds a public office, or has failed to disclose an interest in a
government contract. |
| 16. Voters in elections to the
House of Assembly must be Commonwealth citizens of the age of 18 years or
more who possess Bermudian status and are ordinarily resident in the
constituency in which they seek to be registered as voters. Again, there are
certain positive disqualifications: e.g. being of unsound mind, or being
currently under sentence of imprisonment (in certain circumstances), or
having been convicted of certain election offences. |
| 17. For electoral purposes
Bermuda is divided into 20 constituencies, each of which returns two members
of the House of Assembly. Constituency boundaries are reviewed periodically
(not less than three years nor more than seven years from the previous
review) by a Constituency Boundaries Commission. This consists of a Chairman
and a judicial member (i.e. a person who holds or has held high judicial
office) and four other members: the Chairman and the judicial member are
appointed by the Governor, acting in his discretion; the other members are
appointed by him from among the members of the two Houses of the
Legislature, two of them in accordance with the advice of the Premier and
two in accordance with the advice of the Opposition Leader. The function of
the Commission is to recommend such changes (if any) in existing
constituency boundaries as, having regard to certain factors (which
expressly do not include the racial distribution of voters), will ensure
that the constituencies contain, so far as reasonably practicable, equal
numbers of persons qualified to be registered as voters. Its recommendations
are laid before the House of Assembly and, when approved by the House (with
or without modifications), take effect as from the next dissolution of the
Legislature. |
| 18. Sessions of the Legislature
must be held so that the interval between the end of one session and the
beginning of the next does not exceed 12 months. In practice, the
Legislature meets much more frequently than this. The Governor must in
general act in accordance with the advice of the Premier in deciding both
when to prorogue the Legislature (i.e. bring its current session to an end
without dissolving it) and when to dissolve it (and thus cause the holding
of a general election); but he may, exceptionally, reject the Premier's
advice to order a dissolution if he considers that the government of Bermuda
can be carried on without it and that it would not be in the interests of
Bermuda. The Legislature must in any event be dissolved not later than five
years from its first sitting after the previous general election. A general
election must be held not more than three months after each dissolution and
the Governor must, as soon as practicable after each general election,
proceed to the appointment of the members of the Senate. |
| 19. The Legislature has the power
to make laws on any subject. Laws are made in the form of bills which, when
passed by both Houses, are presented to the Governor for assent on behalf of
the Queen. (There are, however, restrictions on the powers of the Senate in
relation to certain financial measures and also on its power to block
indefinitely other bills that have been passed by the House of Assembly.
These restrictions substantially reflect the corresponding restrictions on
the powers of the House of Lords in the United Kingdom Parliament.) When
assented to, bills become law as acts. In deciding whether to assent or to
withhold assent or to reserve a bill "for the signification of Her Majesty's
pleasure" (i.e. for the decision of the Secretary of State), the Governor
must act in accordance with the usual rules regulating the exercise of his
functions, except that he is required to reserve certain categories of bills
unless he has previously been authorized by the Secretary of State to
assent: these categories include bills which appear to him to be
inconsistent with any of the United Kingdom's international obligations or
to affect any of the matters for which he retains direct responsibility. The
United Kingdom Parliament retains the power to legislate for Bermuda, and
various Acts of Parliament (especially those enacted to enable effect to be
given to international obligations) authorize legislation to be made for
Bermuda (as for other dependent territories) by Order in Council. |
| Religion |
| 20. Freedom of religion is
expressly guaranteed by section 8 of the Constitution. |
| B. The law |
| The courts |
| 21. The courts structure in
Bermuda consists of the Supreme Court and the Court of Appeal (from which
appeals lie in certain cases to the Judicial Committee of the Privy Council)
and also a Magistrate's Court, the Special Court, Coroner's Courts and
various administrative tribunals. These are all discussed in more detail in
the following paragraphs. |
| 22. The Supreme Court is
established, and its composition is regulated, by sections 73 to 76 of the
Constitution. The Supreme Court has a very wide original jurisdiction in
both civil and criminal matters and also has jurisdiction to entertain
appeals from subordinate courts, again in both civil and criminal matters.
The judges of the Supreme Court consist of the Chief Justice and such number
of Puisne Judges as a law enacted by the Legislature may prescribe. The
Chief Justice is appointed by the Governor after consultation with the
Premier, who must in turn have consulted the Opposition Leader, and the
Puisne Judges are appointed by the Governor after consultation with the
Chief Justice. The Governor also has the power, acting after consultation
with the Chief Justice, to appoint Assistant Justices (who have the same
powers as Puisne Judges) whenever the state of business in the Supreme Court
so requires. Section 74 of the Constitution contains provisions safeguarding
the security of tenure (and thus the independence) of the judges of the
Supreme Court by protecting them from removal from office except for proven
inability or misconduct as established by a judicial tribunal. |
| 23. The Court of Appeal is
established, and its composition is regulated, by sections 77 to 80 of the
Constitution. The Court of Appeal entertains appeals on decisions of the
Supreme Court given in either its original or its appellate jurisdiction and
in both civil and criminal matters. In certain cases a further appeal lies
from the Court of Appeal to the Judicial Committee of the Privy Council,
either by leave or (as in human rights cases arising under sect. 15 of the
Constitution) as of right. The judges of the Court of Appeal, who consist of
the President and such number of Justices of Appeal, not being less than
two, as a law enacted by the Legislature may prescribe, are appointed by the
Governor in his discretion from among persons who currently hold or who have
held office as a judge of a court having unlimited jurisdiction in civil and
criminal matters in some part of the Commonwealth or a court having
jurisdiction in appeals from such a court. The security of tenure of the
judges of the Court of Appeal is protected, under section 78 of the
Constitution, in the same way as that of the judges of the Supreme Court. |
| 24. The Governor, acting after
consultation with the Chief Justice, has the power to appoint two or more
persons to be Magistrates - one of them is designated as the Senior
Magistrate - and each such Magistrate is empowered to preside over a
Magistrate's Court which has both criminal and civil jurisdiction. In
criminal cases, the Magistrate, sitting alone and without a jury, tries
those offences (the less serious ones) which are classified as "summary
offences" and sits as a court of preliminary inquiry to determine whether
there are sufficient grounds for committing accused persons to the Supreme
Court for trial on indictment (i.e. by a judge and jury) for the more
serious offences. Certain offences, known as "either way" offences, may be
tried either summarily in the Magistrate's Court or on indictment in the
Supreme Court, at the accused person's election. When a person has been
convicted of an "either way" offence after summary trial in the Magistrate's
Court, the Magistrate may, if he thinks that a severer sentence is warranted
than he can impose under his own limited sentencing powers, commit that
person to the Supreme Court for sentence. In civil matters, the jurisdiction
of the Magistrate's Court is limited to cases involving claims, not
exceeding $10,000, for debt or for damages for breach of contract or
ordinary civil wrongs. |
| 25. Bermuda law also provides for
a Special Court to be constituted as occasion requires to exercise any
jurisdiction that may be conferred on it by an Act of the Legislature. Each
Special Court so constituted consists of a Chairman, who is either the
Senior Magistrate or another Magistrate appointed by the Senior Magistrate,
and two other members (of whom at least one must be a woman) selected by the
Chairman from a panel of at least six persons (including at least three
women) appointed by the Governor. A Special Court deals summarily with the
cases coming before it but any party to such a case is entitled to be
legally represented in the proceedings. Cases involving children are
generally dealt with by a Special Court which, when exercising that
jurisdiction, is known as "the Children's Court". All cases involving
persons under 16 years of age are dealt with by a Special Court except for a
few very serious cases, such as those where the charge is murder or
attempted murder or manslaughter. |
| 26. The Governor is empowered by
law to appoint two or more persons to be Coroners in Bermuda and may appoint
one of them to be Senior Coroner. All cases where there is reason to believe
that a person has died of unnatural causes or in suspicious circumstances
must be reported to a Coroner. He then has the function of deciding whether
to order the carrying out of a post-mortem examination and whether to hold
an inquest into the death, for which purpose he may, if he thinks fit, be
assisted by a jury. |
| 27. Bermuda law also provides for
the establishment, and regulates the functions, of a number of
administrative tribunals to inquire into specific matters where a more
informal procedure or more specialist expertise may be required or where the
nature of the inquiry is not essentially judicial. For example, under the
Development and Planning Act 1974 tribunals of three or more persons may be
appointed to hold public inquiries into objections and representations made
in relation to development plans, while under the Misuse of Drugs Act 1972 a
tribunal may be appointed to advise the Minister on whether he should give a
direction prohibiting a particular medical practitioner from supplying
controlled drugs. |
| Procedure in criminal cases |
| 28. As indicated above, criminal
cases in Bermuda are tried either summarily (by a Magistrate's Court) or an
indictment (by a judge and jury in the Supreme Court). In each case, the
procedure is substantially similar to that obtaining in corresponding
circumstances in England and Wales. Trials are "adversarial" in nature and
an accused person is presumed innocent until proved guilty beyond reasonable
doubt. The right of an accused person to a fair trial, with all the
necessary procedural and other safeguards, is guaranteed by section 6 of the
Constitution, which substantially corresponds to articles 14 and 15 of the
International Covenant on Civil and Political Rights. Section 5 of the
Constitution sets out the safeguards for persons in custody and specifically
for those detained in connection with possible criminal proceedings. A
machinery for enforcing these provisions is provided by section 15 of the
Constitution (see para. 34 below). |
| 29. Where a trial takes place on
indictment in the Supreme Court it is conducted by a judge sitting with a
jury. The jury is drawn from persons who are qualified for, and not exempt
from, jury service. All persons who are not over the age of 65 years and who
are registered as parliamentary electors are so qualified unless they are
subject to specific disqualification, e.g. because they cannot read and
write the English language or because they are blind, deaf or dumb or
mentally disabled or because they are detained in prison or in a mental
hospital. Some persons may, though qualified, claim exemption from jury
service: e.g. Ministers, Magistrates and other members of the legal
profession. In a jury trial the judge is the sole arbiter of the law and has
the duty to direct the jury on the law applicable to the case and to sum up
the evidence for its consideration; but the jury is the sole arbiter of the
facts as they appear from the evidence and, as explained above, must be
satisfied beyond reasonable doubt before it may return a verdict of guilty.
If it is not so satisfied, the accused person must be acquitted. In general,
the verdict of a jury must be unanimous but in certain circumstances a jury
which has been unable to reach unanimity may be permitted to return a
majority verdict supported by nine or more jurors. All verdicts must be
delivered in open court by the foreman of the jury in the presence of all
the members of the jury. |
| Responsibility for
prosecutions |
| 30. As
a general rule, the responsibility for initiating criminal proceedings rests
with the Bermuda Police Force. However, the ultimate authority in relation
to the prosecution process is vested by the Constitution (sect. 71) in the
Attorney General who is given the power, in any case in which he considers
it desirable so to do, to institute and undertake criminal proceedings
against any person before any court in Bermuda; to take over and continue
any such proceedings that have been instituted by any other person or
authority; and to discontinue any such proceedings, whether they were
instituted by himself or by any other person or authority. The power to take
over and continue proceedings and the power to discontinue proceedings are
vested in him to the exclusion of any other person, and in the exercise of
all his powers in relation to the control of prosecutions he is expressly
exempted from the direction or control of any other person or authority. As
a rule, the office of Attorney General is a public office (i.e. an office in
the civil service) the holder of which is appointed by the Governor acting
in his discretion; and the Attorney General's security of tenure, and thus
his independence from outside pressure, is safeguarded by provisions (in
sect. 86 of the Constitution) substantially the same as those applying in
the case of judges of the Supreme Court and of the Court of Appeal (see
paras. 23 and 24 above). However, the Constitution contemplates that the
office of Attorney General may sometimes be held by a member of the
Legislature, and it provides that in that case his functions in relation to
criminal prosecutions (and all the safeguards for his status and his
independence in the exercise of those functions) shall be transferred to a
separate Director of Public Prosecutions |
| Police and prisons |
31. The constitution and
administration of the Bermuda Police Force is regulated by the Police Act
1974. Subject to that Act, "ministerial" responsibility for the police
is reserved to the Governor, acting in his discretion (see para. 9 above)
but the Governor may, in his discretion and with the prior approval of the
Secretary of State for Foreign and Commonwealth Affairs, delegate all or
part of that responsibility to the Premier or to another Minister designated
by him after consultation with the Premier. Prisons in Bermuda are
administered by the Prisons Department under the supervision of the
Commissioner of Prisons (a public officer) and subject to the general
direction and control of the Minister of Health, Social Services and
Housing.
|
| III. GENERAL LEGAL FRAMEWORK
WITHIN WHICH HUMAN RIGHTS ARE PROTECTED |
| A. Authorities having
jurisdiction affecting human rights |
| 32. Chapter I of the Constitution
of Bermuda (sects. 1-16) provides the basic legal framework for securing the
fundamental rights and freedoms of every person in Bermuda. This chapter, in
sections 1 to 14, contains legally enforceable provisions ensuring
protection of the right to life, protection from inhuman treatment,
protection from slavery and forced labour, protection from arbitrary arrest
or detention, protection for the privacy of home and other property,
protection of freedom of movement, protection from discrimination on grounds
of race, place of origin, political opinions, colour or creed, and
protection from deprivation of property, and also ensuring the protection of
the law (which covers the right to a fair trial, and all related safeguards,
in both criminal and civil matters). |
| 33. Section 15 of the
Constitution confers on any person who alleges that any of the provisions of
sections 1 to 14 has been, is being, or is likely to be contravened in
relation to him, the right to make direct application to the Supreme Court
for redress. If any question as to the contravention of any of those
provisions arises in proceedings in any subordinate court, that court must
refer that question to the Supreme Court. The Supreme Court has the power to
hear and determine any such application or reference and to make such
orders, issue such writs and give such directions as it considers
appropriate for enforcing or securing the enforcement of the relevant
provisions. An appeal lies as of right from the Supreme Court to the Court
of Appeal and thence to the Judicial Committee of the Privy Council against
any determination made under section 15. |
| 34. The right of access to the
Supreme Court conferred by section 15 of the Constitution is expressly
without prejudice to any other remedy which is lawfully available to the
complainant. Many contraventions of a person's fundamental human rights will
indeed found alternative causes of action in the courts. For example, a
person unlawfully deprived of his personal liberty may bring, or have
brought on his behalf, civil proceedings to secure his release (by making an
application for a writ of habeas corpus). In addition, he may bring an
action for damages for false imprisonment, wrongful arrest or assault or for
other violations of his civil rights, depending on the facts. In some cases,
the criminal law may also be invoked. |
| 35. In the particular field of
discrimination (e.g. on grounds of race, sex, marital or personal status,
etc.) there are also some very far-reaching protective provisions (and
corresponding enforcement machinery) under the Human Rights Act 1981, as
amended. (A copy of this Act in its current form is provided in appendix 3.)
The Act prohibits discrimination in a wide range of activities and
circumstances (e.g. in the provision of goods, facilities and services and
in relation to the membership, etc., of organizations). It expressly
prohibits the publication of inflammatory racist material or incitement to
racial hostility and it also prohibits sexual harassment in employment. It
contains various provisions for the invalidation or rectification of legal
instruments which have a discriminatory element. |
| 36. The principal machinery for
securing compliance with the Human Rights Act 1981 is a Human Rights
Commission whose members are appointed by the Governor on the advice of the
Premier after the Premier has consulted the Opposition Leader. The
Commission is required to investigate complaints of discrimination in
contravention of the Act (and has extensive powers for this purpose) and, if
possible, to settle them by its good offices. Where such a settlement is not
possible, the Commission may (with the consent of the Attorney General)
institute criminal proceedings or, where a prosecution would not be
appropriate, refer the case to the Minister, who may then refer it to a
board of inquiry. A board of inquiry, if it finds that there has been a
contravention of any provision of the Act, has the power to order full
compliance with that provision and also to order the rectification of any
injury caused and the payment of financial restitution for it. If it
considers that such an order will not be obeyed (or if such an order is in
fact not obeyed, which is itself an additional criminal offence), it may
refer the case to the Attorney General with a view to a prosecution. In
addition to its investigative, conciliation and enforcement functions, the
Commission has various educational and promotional duties in connection with
the elimination of discrimination and also has a general duty to encourage
an understanding of the fundamental rights and freedoms of the individual
guaranteed by chapter I of the Constitution. |
| 37. Paragraphs 35 and 36 above
explain the present position in relation to discrimination on grounds of
race, etc. However, the Government of Bermuda has acknowledged that,
although progress has been made in achieving equality in the community,
further measures need to be taken. Accordingly, in June 1994 the Minister of
Human Affairs and Information published a White Paper which set out the
Government's proposals to that end. These include the creation of a
Commission for Unity and Racial Equality to promote equality of opportunity
and to work towards the elimination of systemic racial discrimination; the
enlargement of the powers, scope and function of the Human Rights
Commission; and the designation of certain racist acts as offences under the
Criminal Code. A copy of the White Paper, entitled "Eliminating prejudice
and discrimination", is provided in appendix 4. |
| B. Remedies, compensation and
rehabilitation |
| 38. Paragraph 33 above describes
the powers of the Supreme Court to grant redress for the violation of a
person's fundamental human rights as guaranteed by chapter I of the
Constitution, and attention is also drawn to section 5 (4) of the
Constitution which provides that any person who is unlawfully arrested or
detained by any other person shall be entitled to compensation from that
other person. Paragraph 36 above describes the machinery established by the
Human Rights Act 1981 for securing redress (including, in appropriate cases,
the payment of compensation) to victims of unlawful discrimination. Apart
from these provisions, there is no provision in the law of Bermuda which
expressly confers a right to compensation or rehabilitation on a victim of a
human rights violation as such, but such a person would, as noted above,
very often have a remedy available to him under the ordinary law by virtue
of which he could obtain redress (including damages) for the infringement of
his ordinary civil rights which the human rights violation would also
constitute. |
| 39. Although not solely concerned
with circumstances in which there has been a violation of a person's human
rights, the provisions of the Criminal Injuries (Compensation) Act 1973 are
also relevant in this context. Under this Act, where a person has been
killed or injured and the death or injury is directly attributable to a
crime of violence committed by any other person, an application for
compensation may be made to the Criminal Injuries Compensation Board which
is established by the Act. If satisfied as to the facts, and having regard
to various factors specified in the Act, the Board may order compensation to
be paid out of public funds to or for the benefit of the victim, or (if he
died) to or for the benefit of his dependants, or (in certain circumstances)
to a person who incurs expense in looking after the victim or as a result of
his death. The Board consists of five members appointed by the Governor on
the advice of the Premier, of whom one (the Chairman) is a judge of the
Supreme Court, one is a qualified medical practitioner and one is a lawyer
in private practice in Bermuda. A copy of the Criminal Injuries
(Compensation) Act 1973 in its current form - the original version of the
Act has been amended from time to time - is provided in appendix 5.
|
| Legal aid |
| 40. The law of Bermuda provides
for legal aid to be granted in the following cases:
(a) Trials on indictment, preliminary inquiries into charges of indictable
offences and summary trials of "either way" offences;
(b) Civil proceedings in the Supreme Court or in a
Magistrate's Court; and
(c) Appeals in criminal or civil cases. |
| C. Constitutional protection
of human rights: derogations, etc. |
| 41. As explained in paragraph 32
above, chapter I of the Constitution of Bermuda guarantees and protects the
fundamental rights and freedoms of the individual. This chapter derives
directly from the European Convention on Human Rights and ultimately from
the Universal Declaration of Human Rights. The rights and freedoms specified
in it are subject only to the limitations which are also specified and which
are designed to ensure that the enjoyment of his rights and freedoms by any
individual does not prejudice those of others or the public interest.
Section 14 of the Constitution permits a law to authorize measures to be
taken which derogate from certain specified provisions of chapter I during a
period of public emergency but only to the extent that those measures are
reasonably justifiable for dealing with the situation that then exists.
Whether the measures actually taken are so justifiable is a question that
can ultimately be determined by the courts. |
| D. Effect of human rights
instruments in national law |
| 42. Under the Common Law system
which operates in Bermuda, treaties which apply to Bermuda (including human
rights treaties) do not themselves have the force of internal law and cannot
be directly invoked before the courts as a source of individual rights,
though the courts will, when possible, construe domestic legislation in such
a way as to avoid incompatibility with the United Kingdom's international
legal obligations. The usual method of giving effect to treaty obligations
(when these require some change in existing law or practice) is to enact
specific new legislation or to amend existing legislation or, as the case
may require, to adapt existing administrative practices. Any legislation
that is necessary may take the form of an Act of the Bermuda Legislature (or
an instrument made under such an Act) or an Order in Council made under an
Act of the United Kingdom Parliament specifically authorizing the making of
such an Order. Where these measures result in the creation or definition of
specific legal rights and these are denied or interfered with (or there is a
threat of such action), a remedy will be available in the courts through the
ordinary procedures of civil litigation or, in some cases, by criminal
sanctions. |
| IV. INFORMATION AND PUBLICITY
|
| 43. The text of the Constitution
of Bermuda and other Bermuda laws relevant to human rights are included in
the publication known as the Revised Laws of Bermuda which is kept up to
date under the authority of the Attorney General. Complete sets of the
Revised Laws of Bermuda are maintained by the Bermuda Archives, the Bermuda
College Library and the Public Library and the public have access to these. |
| 44. The drafts of the reports in
respect of Bermuda that are to be submitted to the treaty monitoring bodies
under the relevant human rights instruments are prepared by the responsible
departments of the Bermuda Government and are then finalized by the United
Kingdom Government. |
| |
xxxxxxxxxxxxxxxxxxxxxx
|
