27 April, 2008

Human Rights

Human Rights Commissioner. We now turn to look at some independent Commissioners who should exist under our new Constitution. The first would be the Human Rights Commissioner. This is a Constitutional body which exists to protect the human rights of citizens when they are infringed by any member of the executive, or by the Assembly itself. It is not a normal provision in a British style constitution of an Overseas Territory. But, it is not unknown to Commonwealth constitutional law.

I have previously written about the role of such a Commissioner in various Commonwealth countries. In African Commonwealth countries there are many different types of national human rights and administrative justice institutions. There are over 30 Ombudsman institutions in that continent alone. Additionally, there are Human Rights Commissions, Gender Commissions, Racial Equality Commissions, and Anti-discrimination Commissions. Many of them operate in challenging environments of corruption, violation of human rights, military coups, and dictatorships. These Administrative Justice Boards are typically given broader jurisdiction and stronger powers than the classic model of Ombudsman. These are called the ‘hybrid model.’

Ghana’s Commission on Human Rights and Administrative Justice is a model of a hybrid institution which performs the triple mandate of acting as the Ombudsman, a Human Rights Commission, and an autonomous anti-corruption agency. Another feature of the hybrid is that some, like the Ghana Commission, have been given power to have their decisions and recommendations enforced in the courts. The Tanzania Commission of Human Rights and Good Governance also has a similar provision empowering it to go to court to enforce its recommendations and decisions where they have not been complied with in a specified period. This is a departure from the classical Ombudsman, who relies on his moral powers of persuasion.

Given the high cost of litigation in Anguilla, it will not surprise anyone to learn that during the public meetings held in the year 2006, this was one of the most frequently heard requests. The Constitutional and Electoral Reform Commission made the appropriate recommendation when it filed its report with government in August 2006.

Such a provision is not difficult to draft. It could be as simple as:

Human Rights Commissioner

95. (1) There shall be an independent Human Rights Commissioner for Anguilla who shall investigate, resolve and prosecute claims of infringement of any person’s rights under this Constitution.

(2) The Human Rights Commissioner shall have such other specific functions and jurisdiction as may be set out in a law.

The general provisions relating to all Commissioners would apply. Thus, he or she would be appointed by the Governor after consultation with the Premier and the Leader of the Opposition. No person would be appointed who has been a member of the House of Assembly or a candidate for election. He would not be subject to any direction or control of any other person or authority. He should have security of tenure, and not be capable of being dismissed by the Governor or the government. He can only be dismissed for cause such as misbehaviour or ill health. His emolumnts are guaranteed by the Constitution in that they cannot be reduced while he is in office. He must report annually to the Assembly, which must publish his report within a specified time.

Such relief is ernestly sought by the average citizen of Anguilla. It will go a long way to ensuring that the rights of the people can really be said to be guaranteed.

Making it a hybrid, combining the Human Rights Commissioner with the police complaints authority and the Ombudsman, will be an obvious cost-saving measure.


  1. By requiring the Commissioner to report annually, would this prohibit this being done more frequently if he or she felt a need to do so?

    Would "publishing" such reports be effective in communicating with the people, or would they be included in the Gazette - an obsolete artifact of the pick and hoe days?

  2. "Human Rights" commissions, in Canada at least, have been a big source of trouble for freedom of speech there. They have virtually unchecked power to accuse people of various forms of political incorrectness, and they have very broad, unchecked, power to bring the full force of the law, including imprisonment, for the most amazing breaches of "human rights."

    Google "Mark Steyn" together with "Human Rights" and "Canada" for the so-called "Human Rights" violations of his book "America Alone", the excerpts of which, published in a Canadian newspaper, had him threatened with possible jail time, and certainly expungement from all Canadian press.

    It was only through the resulting press outcry that the "Human Rights" commission in question conveniently decided to stop its proceedings and declare offhand that even though Mr. Steyn violated their rules, they weren't going to do anything about it. Pretty amazing.

    Madame LeFarge is apparently alive and well and knitting away, sitting on various "Human Rights" commissions in putatively liberal countries around the world...

  3. A Human Rights Commission will only be a threat if it is over-funded, over-staffed, and under-employed in dealing with real issues. In a West Indian context this is so unlikely as to be a non-issue. It is more likely that it will be so under-funded and under-staffed that it will be unable to handle any but the most critical of cases.


  4. ...meanwhile the Anguillian government is hauling in so much in taxes, fees, etc., that it can't spend it fast enough?



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