21 April 2010

Centre for Justice emphatically, and without reservation, welcomes the Government’s proposal to amend the Human Rights Act to prohibit discrimination on the grounds of sexual orientation.

However, we have grave concerns about a clause that has been added to the new legislation, and which may have escaped the general public attention. In our view, if it becomes law, this clause would allow the police to harass people with impunity.

Given that the legislation is apparently scheduled for debate in the House of Assembly soon, we urge Government to delete this clause from the Act’s amendment. We do not in any way want to hold up the passage of the Human Rights Act amendment, which has been so long awaited. But it would be a sad day for Bermuda if the amendment went forward as proposed – on the one hand granting rights to a group who should have been included decades ago, and on the other potentially taking away the rights of other groups.

We urge members of the community to write to their MPs and ask them to pass the Human Rights Act amendment – after removing subsection 3.

The section we are referring to provides that:

6C(1) No person shall pursue a persistent course of conduct-

(a) Which amounts to harassment of another person based upon-

(i) age; or

(ii) any of grounds as set out in section 2(2); and

(b) which the person knows or ought to know amounts to harassment of another person.

(2) For the purpose of subsection (1), the person whose persistent course of conduct is in question ought to know that it amounts to harassment of another person if a reasonable person, in possession of the same information, would think the persistent course of conduct amounted to harassment of the other person.

(3) Subsection (1) does not apply to a persistent course of conduct if the person who pursued it shows that-

(a) it was pursued for the purpose of preventing or detecting a crime;2

(b) it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; or

(c) in the particular circumstances the pursuit of the persistent course of conduct was reasonable.

Whilst there will be a general prohibition against harassment under the Act, if the Amendment Act passes as is, the Act would in effect allow the police to harass people. If you are harassed by the police, supposedly, for the purpose of preventing or detecting crime or for example stopped and searched under section 315F of the Criminal Code Act, you could lose existing remedies available under the Human Rights Act.

Of course, you could challenge the constitutionality of section 315F or this section in the courts, but the average person simply does not have the resources and means to pursues his/her rights in the courts.

The Police and Criminal Evidence Act (PACE) provides comprehensive provisions on the powers of the police in relation to stopping and searching, powers of entry search and seizure, detention, questioning and treatment of people in detention whilst safeguarding the rights of suspects. In our view this already gives the police sufficient powers.

In our view, at first sight, the Human Rights Act amendment appears to be unconstitutional because it expressly permits discriminatory behaviour and profiling.

We have contacted the Minister of Community and Cultural Development and the Minister of Justice to ask them to reconsider their position in respect of subsection 3.