THE ESTABLISHMENT OF A NATIONAL HUMAN RIGHTS INSTITUTION FOR MONTSERRAT

TABLE OF CONTENTS

1. Introduction

2. The Way Forward

3.The Need for a National Human Rights Institution

4.Types of National Human Rights Institutions

5.Mode of Establishment

6.Funding

7.Composition of the National Human Rights Institution

8.Mandate and Powers

9. General Complaint Procedures

10. Accountability and Relationships with Other Institutions

11. Accessibility

1.Introduction

Montserrat is one of fourteen OverseasTerritories of the United Kingdom.

In 2004 the Executive Councilauthorised the establishment of a Human Rights Reporting Committee (HRRC) for the Territory. The HRRC was established to assist the Government of Montserrat with its reporting obligations under the various United Nations international human rights instruments which extend to the Territory. In addition the HRRC was also conferred with the mandate to monitor the implementation of the human rights instruments within the Territory and advise the Government regarding any shortcomings and make suggestions for remedying such shortcomings. The HRRC was also to assist in the establishment of a Human Rights Commission for Montserrat.

In November 2005 a consultant was retained to advise the HRRC on the establishment of a human rights public education strategy for Montserrat with the view towards the drafting of a Human Rights Commission Act for the Territory. A Report was prepared by the consultant and submitted in February 2006.

In November 2006 the HRRC commissioned a consultant to visit Montserrat in order to meet with target groups and hold public meetings on the status of human rights in the Territory, with a view to providing direction to the HRRC on the establishment of a Human Rights Commission for Montserrat. Following these consultations it was decided that a detailed report on the establishment of a human rights commission for Montserrat would be prepared. The report would set out the issues to be addressed in the enabling legislation, with a view to holding further discussions with stakeholders and more comprehensive and focused public consultation. Draft legislation would then be prepared for the creation and operation of the Montserrat Human Rights Commission.

2. The Way Forward

The purpose of this Report is to set out the options available for the creation of a NHRI for Montserrat and to direct attention to some of the key issues that will need to be determined and addressed in the enabling legislation.

The Report has been compiled on the basis United Nations and Commonwealth best practice in the creation of NHRIs. The Report has been structured to reflect the provisions that will have to be included in any enabling legislation.

The next stage will be to focus public attention towards these key issues and facilitate debate as to how options may be determined. In this respect the Human Rights Reporting Committee may act as the steering committee. The steering committee will determine how the public consultation element of the project will take place. For example it may be that key issues will be discussed and determined by the steering committee in consultations with key stakeholders and then put to the public, and in effect defended, at a series of public meetings. Alternatively public meetings could be held to discuss the Report before any decisions are taken by the steering committee or discussions held with stakeholders.

Following focussed public consultation and the discussion of issues with relevant stakeholders the steering committee should be in a position to approve a drafting scheme which will form the basis for the proposed legislation and facilitate the speedy production of a draft Bill. The draft Bill may then be published and further public comment invited.
3.The Need for a National Human Rights Institution

National human rights institutions (NHRIs) are now acknowledged as being an integral part of a democratic society

When governments ratify or accede to an international human rights instrument they either incorporate its provisions directly into their domestic legislation or undertake to comply in other ways with the obligations contained in the instrument. Often, however, the existence of a law that protects certain rights is not enough if that law does not also provide all the legal powers and institutions necessary to ensure the effective realisation of those rights. It is therefore important for a State committed to human rights to establish a national infrastructure, including relevant institutions, whichcan promote and protect human rights.

NHRIs have the capacity to make a substantial contribution to the realisation of human rights at the domestic level by transforming the rhetoric of international instruments into reality. Their ability to understand national circumstances and local challenges often means that NHRIs are better placed than external evaluators to monitor the human rights performance of governments. Today NHRIs play an important role in the promotion and protection of human rights.

The Montserrat Constitution Order 1989 which sets out the constitutional arrangements for the Territory contains in Part IV provisions relating to the “Fundamental Rights and Freedoms of the Individual” These freedoms correspond to the generally recognised civil and political rights and may be enforced through action in the High Court.

Of the six core United Nations human rights instruments – International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic, Social and Cultural Rights (ICESCR); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); Convention on the Rights of the Child (CRC); Convention on the Elimination of all Forms of Racial Discrimination (CERD); and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), all except CEDAW have been extended to the Territory. In addition several other international human rights instruments have been extended to the Territory. In addition English Common Law applicable in Montserrat will also recognise those human rights provisions reflective of customary international law.

It may be seen therefore that the people of Montserrat have been granted a host of rights and freedoms in addition to their inherent Common Law freedoms. What is now required is a mechanism to promote, protect and enforce those right and freedoms at the domestic level within the Territory.

4.Types of National Human Rights Institutions

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Introduction

In recent years States have come to show their commitment to human rights by acceding to international instruments for the protection and promotion of human rights. However simply ratifying or acceding to an international human rights instrument may be little more than an empty gesture. What matters is not simply being one of a list of State parties to the instrument, but the extent to which the State puts the international instrument into domestic effect. It is important for a State committed to human rights to establish a national infrastructure, including relevant institutions, which can promote and protect human rights at the domestic level.

NHRIs take many forms. In this respect each State or territory must choose the framework which best suits its particular needs. Some deal only with human rights issues, often narrowly defined so as not to include the full range of issues covered by the international human rights instruments. Others have wide mandates to address all issues covered in the international instruments. Some combine a number of functions relating to the international instruments with the traditional role of the ombudsman who has oversight over operations in the public sector, others subsume an administrative law function, and yet others have few powers beyond those of a traditional ombudsman. In many cases, the size and resource base of the country dictates the characteristics of NHRI.

The Vienna Declaration and Programme of Action adopted by the 1993 World Conference on Human Rights specifically recognised the right of each State to choose the framework for a NHRI which is best suited to its needs. This provision represents a clear acknowledgment of the fact that the great differences which exist between States will necessarily be reflected in the structures which they create to implement international human rights standards.

However, for whatever reason NHRIs are formed, the ideal is for each of them to have the capacity to deal with the protection and promotion of all rights recognised by international law as human rights.

There are three broad categories of NHRI.

i)Human Rights Commission.

ii)Classic Ombudsman.

iii)Hybrid Human Rights Commission/Ombudsman.

Human Rights Commissions

Increasingly States are creating Human Rights Commissions to implement in the domestic arena international obligations of the State with regard to the protection and promotion of human rights. The legislation creating such commissions may confer upon them various powers and functions including the powers to:

● undertake investigations of alleged violations of rights. Such investigation may be based on an individual public complaint or the initiative of the NHRI itself;

● provide advice to the Government on legislation, policies and programmes;

● promote rights and educate the public;

● conduct public inquiries; and

● act as a link between the Government and civil society and between groups within civil society.

In many countries, commissions have been established to ensure that the laws and regulations concerning the protection of human rights are effectively applied. Most human rights commissions function independently of other organs of government, although they may be required to report to the legislature on a regular basis.

In keeping with their independent nature, commissions are generally composed of a variety of members from diverse backgrounds, each with a particular interest, expertise or experience in the field of human rights.

Human rights commissions are concerned primarily with the protection of persons against all forms of discrimination and with the protection of civil and political rights. They may also be empowered to promote and protect economic, social and cultural rights. The precise authority and functions of a particular commission will be defined in the legislative act or decree under which it is established. This law or decree will also serve to define the commission’s jurisdiction by, inter alia, specifying the range of discriminations or violations which it is empowered to investigate or otherwise act on. Some commissions concern themselves with alleged violations of any rights recognised in the Constitution. Others may be able to consider cases of discrimination on a broad range of grounds, including race, religion, gender, national or ethnic origins, disability, social conditions, sexual orientation, political opinion, ancestry, age and marital status.

One of the most common functions vested in a human rights commission is to receive and investigate complaints from individuals (and occasionally from groups) alleging human rights abuses committed in violation of existing national law. In order to carry out its tasks properly, the commission will usually be capable of obtaining evidence relating to the matter under investigation. This power is important in that it guards against the possibility of frustration through lack of cooperation on the part of the person or body complained against. While there are considerable differences in the procedures followed by various human rights commissions in the investigation and resolution of complaints, many rely on conciliation and/or arbitration. In the process of conciliation, the commission will attempt to bring the two parties together in order to achieve a mutually satisfactory outcome. If conciliation fails to resolve the dispute, the commission may be able to resort to arbitration in which it will, after a hearing, issue a determination.

It is not common for a human rights commission to be granted authority to impose a legally binding outcome on parties to the complaint. However, this does not mean that the settlement or appropriate remedial steps recommended by the commission can be ignored. In some cases, a special tribunal will hear and determine issues outstanding from an unresolved complaint. If no special tribunal has been established, the commission may be able to transfer unresolved complaints to the regular courts for a final and binding determination.

Another important function of many commissions is systematically to review the Government’s human rights policy in order to detect shortcomings in human rights observances and suggest way of improving it. Human rights commissions may also monitor the State’s compliance with its own legislation and with international human rights laws and if necessary, recommend changes. The ability of a commission to initiate inquiries on its own behalf is an important measure of its overall strength and probable effectiveness. This is particularly true in regard to situations involving persons or groups who do not have the financial or social resources to lodge individual complaints.

The full realisation of human rights cannot be achieved solely through adequate legislation and appropriate administrative arrangements. In recognition of this fact, commissions are often entrusted with the important responsibility of improving community awareness of human rights. Promoting and educating about human rights may involve informing the public about the commission’s own functions and purpose; provoking discussion about various important questions in the field of human rights; organising seminars and training courses; arranging counselling services and meetings; and producing and disseminating human rights publications.

Classic Ombudsman

In the Commonwealth Caribbean the tendency of States has been to create an office of ombudsman, usually based on the English system of a public official appointed by the Executive investigating complaints of injustice through maladministration in the public service. In this context maladministration has been given a broad interpretation but generally concerns any decision of an administrative nature that appears to be wrong. Accordingly, the ombudsman will often act as an impartial mediator between an aggrieved individual and the Government. There is no express human rights mandate conferred on the classic ombudsman. The Constitution of the State may provide for the appointment of the ombudsman. However it will be the act of the Legislature implementing the Constitutional provision that will set out the legal extent and limitations on the powers and jurisdiction of the ombudsman. No legal remedies may be available but the ombudsman may report to Parliament and will publish an annual public report of his findings.

While the institution of ombudsman is not exactly the same in any two countries, all follow similar procedures in the performance of their duties. The ombudsman receives complaints from members of the public and will investigate these complaints provided they fall within the ombudsman’s competence. In the process of investigation, the ombudsman is generally granted access to the documents of all relevant public authorities andmay also be able to compel witnesses, including government officials, to provide information. The ombudsman will then issue a statement or recommendation based on this investigation. This statement is generally transmitted to the person lodging the complaint as well as to the office or authority complained against. In general, if the recommendation is not acted on, the ombudsman may submit a specific report to the legislature. This will be in addition to the annual report to the same body, which may include information on problems which have been identified and contain suggestions for legislative and administrative change.

While any citizen who believes that his or her rights have been violated may submit a complaint to the ombudsman, many countries require that the complainant first exhaust all alternative legal and administrative remedies. There may also be time-limits imposed on the filing of complaints. Moreover, while the ombudsman’s authority usually extends to all aspects of public administration, most ombudsmen are prevented from considering complaints involving members of the legislature or the judiciary.

Access to the ombudsman also varies from country to country. In many countries, individuals may lodge a complaint directly with the ombudsman’s office. In other countries, complaints may be submitted through an intermediary, such as a local member of parliament. Complaints made to the ombudsman are usually confidential and the identity of the complainant is not disclosed without that person’s consent.

The ombudsman is not always restricted to acting on complaints and may be able to begin an investigation on his own initiative. As with human rights commissions, self-initiated investigations by ombudsman offices often relate to issues which the ombudsman may have determined to be of broad public concern, or issues which affect group rights and are therefore not likely to be the subject of an individual complaint.

In many respects, the powers of the ombudsman are quite similar to those of human rights commissions with competence to receive and investigate complaints. Both are concerned with protecting the rights of individuals and in principle, neither have the power to make binding decisions. There are nevertheless some differences in the functions of these two bodies which reveal why some countries establish and simultaneously maintain both types of institutions. The primary function of most ombudsmen is to ensure fairness and legality in public administration. In contrast, commissions are more generally concerned with violations of human rights, particularly discrimination. In this respect, human rights commissions will often concern themselves with the actions of private bodies and individuals as well as of the Government. In general, the principal focus of activity for the ombudsman is individual complaints against public entities or officials. However, distinctions are becoming more and more blurred as ombudsman offices engage in a wider range of activities for the promotion andprotection of human rights. Increasingly, offices of the ombudsman are assuming responsibilities in the area or promoting human rights, particularly through educational activities and the development of information programmes.