UNCLAS NASSAU 001834
SIPDIS
STATE FOR WHA/CAR WBENT
E.O. 12958: N/A
TAGS: PHUM, PREL, CASC, KJUS, BF, Human Rights
SUBJECT: LANDMARK CIVIL RIGHTS DECISION PROVIDES REMEDY FOR
CONSTITUTIONAL ABUSES
1. Summary. American Citizen Tamara Merson sued the
Bahamian Government in 1987 for civil rights abuses arising
from wrongful imprisonment. In an October 13, 2005 decision,
the Privy Council, The Bahamas' highest court, held that a
person may seek damages for breach of constitutional rights.
Previously, constitutional violations were subject only to
declaratory relief, and citizens were hesitant to pursue
expensive civil rights cases without the possibility of
financial recovery. The Chief Justice called the decision a
"remarkable" creation of a "new category of damages."
According to human rights attorney Fred Smith, the decision
is a "human rights milestone" which "has given teeth to The
Bahamas' Constitution." End Summary.
2. In 1987, visiting American citizen Tamara Merson was
wrongfully jailed and abused by Bahamian police in Freeport,
Grand Bahama. Following trial, the court awarded Ms. Merson
both traditional compensatory damages for specific injuries
and additional damages for breach of constitutional
protections against degrading treatment or punishment,
against deprivations of personal liberty and against
arbitrary detention. The Government did not contest
liability, but successfully challenged the damages award at
the Court of Appeal on the grounds that no monetary remedy
was available for violation of Constitutional rights. On
October 13, the Privy Council disagreed, supporting the right
to seek compensation for Government violations of civil
rights. "Vindicatory damages", said the Council, "vindicate
the right of the complainant, whether a citizen or a visitor,
to carry on his or her live life in The Bahamas free from
unjustified executive interference, mistreatment or
oppression."
3. Poloff and DCM met with Chief Justice of the Bahamas Sir
Burton Hall on October 19, who called the case "remarkable"
and acknowledged the creation of an entirely new category of
damages for civil rights violations. He said that attorneys
in The Bahamas have been hesitant to take up constitutional
cases because of their complexity and lack of potential
compensation. Few civil rights complainants had the patience
and resources of Ms. Merson, who pursued her case without
promise of reward for nearly 20 years. Sir Burton cautioned,
however, that verdicts against the Bahamian government may
not be sufficient to motivate street-level police officers
and other low-level government actors to protect
constitutional rights.
4. Fred Smith, president of the Grand Bahama Human Rights
Association, called the decision a "milestone in civil
rights" which gives the constitution "muscle and teeth." "We
can not only make the Government talk about rights," he said,
"we can give the Government incentive not to abuse them."
Similarly, local attorney Elizier Regnier has said that the
decision "will allow me to fight for my client's rights in
court without putting me, or them, into the poor house." Mr.
Smith and Mr. Regnier appear ready to use the Merson decision
to address long-standing civil rights concerns in the
immigrant Haitian community and elsewhere.
5. Comment: Depending upon the response by the local bar and
bench, the decision could be the Bahamian equivalent of the
1964 Civil Rights Act in the U.S. For the first time, the
Government has a monetary incentive to avoid civil rights
abuses. While the Bahamian government generally respects
civil rights, specific issues -- conditions in Fox Hill
Prison, civil rights in the Haitian community, conditions at
the Migrant Detention Center, beatings by local police --
have lingered for years and may now face legal attack. While
the Chief Justice doubted that monetary awards will
adequately improve the behavior of low-level government
actors, experience in the U.S. says otherwise. The ultimate
result of the case is still uncertain, but the decision makes
it more likely that that the local bar will make civil rights
a priority and that Government agencies will be more
sensitive to potential vindicatory damages awards. End
comment.
HARDT