Human Rights body warns against 'hateful' rows over status

As Commissioners of the Human Rights Commission we are independent from the Government and from the Opposition. In particular, we were selected by an independent selection committee comprised of individuals from across our community. Our general mandate under the Human Rights Act 1981 (the “Act”) is to educate on Human Rights issues and to adjudicate over Human Rights Tribunals.

The rights (specifically employment rights) of PRC Holders and Bermudians has been raised frequently in the past few weeks by various politicians, spokesman and private individuals. There are clearly polarised positions in respect of whether PRC Holders (who have been here since 1989) should be granted Bermudian status. It is not appropriate for us as Commissioners to comment on this specifically one way or the other – save to say that we, as Commissioners, are guided by a statutory mandate to uphold the Act and support all peoples’ human rights as stipulated in the Act. Our role is relatively straight forward in this regard, as we have no mandate to consider the impact to Bermuda in terms of politics or the economy etc. (save where there is an impact on Human Rights).

We have grown concerned at the increasing amount of general anger in our community, and specific anger directed at politicians, Bermudians, PRC Holders and others who comment or are involved in the current debates. Some of the anger seems to be generated as a result of a misunderstanding of the basic legal position under the Act, and confusion over the sphere of influence the Act actually has. As such, it is prudent to set out the general position of the Act in respect of this issue as follows (please note this is a general summary, as each case brought before a Tribunal is decided on its own merits and facts):

(1)  The Act applies to all who live in Bermuda and, unless specifically excluded in other acts of parliament, is a dominant statute. This means in simple terms that the Act overrules all other statutes, policies etc. unless stated otherwise;

(2)  The Act is superior to Immigration policy (the new 2013 policy or otherwise);

(3)  The Act mandates that employers do not discriminate against anyone on the basis of their place of origin. For example an employer cannot choose a Russian over an American purely on the basis of where they are from.

(4)  The Act creates no hierarchy for hiring Bermudians over non Bermudians. This would be, in other circumstances, a breach of the Act save that Employers may choose, if they wish, to hire a Bermudian over a non-Bermudian when hiring new employees.

To be clear, the Act does not mandate the preferential hiring of Bermudians over others (e.g. PRC Holders or spouses of Bermudians), and there is no suggestion within the Act that employers should carry out such a practice. Indeed, if an employer chooses to exercise this exemption and selects a Bermudian for employment over a PRC Holder purely on the grounds of a PRC Holder’s national origin, advice from an attorney should be sought - as other Bermuda laws may have an impact on such a choice and whether it is lawful. Any Tribunal formed under the Act to adjudicate over a complaint on these grounds would have to consider a large range of issues.

We would urge all those involved in these debates (on all sides) to ensure that, as a starting point, the basic legal position under the Act is understood as per the above. This will ensure that the debates are fruitful and beneficial to all. Whilst a spirited debate is welcome, we are concerned that the debate may degrade into hateful, vexatious and/or harmful words in respect an individual’s national origin (be it Bermuda or otherwise). Such conduct may in itself be a breach of the Act.

Michael Hanson

Chairman