By: P.J Malone

The Government of The Bahamas suggested that the Inter American Commission on Human Rights broke its own rules with respect to its actions and the Resolution the Commission enacted in response to a petition filed requesting precautionary measures.

As is commonly known in The Bahamas, 5 individuals —Fred Smith QC, Francisco Nunez, Joseph Darville, Kirkland Bodie and Romauld Ferreria—are the Save The Bays associates who filed a petition with the Commission asking for precautionary measures to be taken claiming that ‘their lives are in danger and that some had to flee The Bahamas’.

In response to their Petition, the human rights Commission issued a Resolution directing the Government of the Commonwealth of The Bahamas to take precautionary measures to protect these five individuals in The Bahamas without allowing for the Government’s response or presentation of evidence refuting the Petitioners’ claims, as the Commission’s rules mandate.

In the Commission’s “Rules of Procedure Of The Inter-American Court of Human Rights” entered into force on 1 June 2001, it mandates this with respect to a State’s ability to respond and object to petitions filed against its Government.

Article 37: Answer to the Application

1. The respondent shall answer the application in writing within two months of the notification.
2. In its answer, the respondent must state whether it accepts the facts and claims or whether it contradicts them, and the Court may consider accepted those facts that have not been expressly denied and the claims that have not been expressly contested.

Article 36: Preliminary Objections

1. Preliminary objections may only be filed in the brief answering the application.
2. The document setting out the preliminary objections shall set out the facts on which the objection is based, the legal arguments, and the conclusions and supporting documents, as well as any evidence which the party filing the objection may wish to produce.

Yet, the Government’s response was not allowed to be heard before granting the five’s petition. Despite its rules stating that objections can only be filed when submitted in response to the petitioners, and even though the fact that its response must state the facts or contradict the claims, the Commission seemingly went ahead and instituted a Resolution for precautionary measures without receiving the Government’s objections or answer to the charges.

The troubling thing is that, if it is true that the Resolution attests to considering the facts from ‘the parties’, the Commission may have actually told an untruth. As the Government’s response reads, “it is surprising that the Commission states at paragraph 2 of the Resolution that its conclusion to grant the precautionary measures was arrived at “After analyzing the factual and legal arguments put forth by the parties…”.   In fact, there were no factual or legal arguments from the Government.”

The Government also maintains that the exception to the Commission’s rule of granting provisional measures in “extreme gravity and urgency” was not proven: “While respecting the Commission and its role, the Government considers that there was and is no basis in fact or law for the Commission’s grant of such precautionary measures… Further, the Government submits that the Petitioners have failed to satisfy the criteria applied by the Commission in granting precautionary measures pursuant to article 25 of the Commission’s Rules of Procedure (“gravity”, “urgency”, “irreparable harm”)”

Additionally, the Commission’s rules states the following concerning evidence submitted to its body:

Article 43: Admission

1. Items of evidence tendered by the parties shall be admissible only if previous notification thereof is contained in the application and in the reply thereto and, when appropriate, in the document setting out the preliminary objections and in the answer thereto.
2. Evidence tendered to the Commission shall form part of the file, provided that it has been received in a procedure with the presence of both parties, unless the Court considers it essential that such evidence should be repeated.

The Government’s response revealed that this rule was apparently not followed: “The Government notes that it was regularly in touch with the Commission (both in writing and verbally) from the time the Petition was received on 27 September up to the time notification was received of the Precautionary Measures.  At no time during that period did the Commission inform the Government that additional submissions had been received from the Petitioners.”

The Government’s response further states,

“In this regard, the Government notes that the reasoned Resolution containing the grant of the precautionary measures refers in a material way to further information submitted by the Petitioners, in which they “provided further details concerning the risk of the proposed beneficiaries” (paragraph 6).   This report was apparently submitted on the 3 October 2016. The Government was not furnished with a copy of the supplemental report until 11 November, nor was there any reference back to The Bahamas.”

Clearly, the Government received a copy of the further submission to the Commission from the Petitioners on November 11^th, after the Commission had granted the precautionary measures Resolution on November 4^th, 2016.

While these breaches are few in the Commission’s overall process, the Commission’s actions are consequential; they have far reaching implications for the objectivity of the Commission’s process and the sense of fair play in the Commission’s dealings with a country with such “a long history of democratic governance, and with such a tradition of free and fair elections and national stability”, as is the case in the Commonwealth of The Bahamas.

As noted in the Government’s response, in the Commonwealth of The Bahamas,

• There have been changes of government without violence.
• In 2015 a Referendum was conducted. There is respect for the rule of law and the rights and freedoms of the individual, guaranteed by entrenched constitutional rights.
• Freedom of speech and the press are vital to this open democracy, with many privately-owned radio stations and several privately owned television and radio stations operating alongside the State-run media, as well as several major privately owned print media.
• There is no Government-censorship, and broadcasting and television services are regulated by an independent statutory body called the Utilities Regulation and Competition Authority (“URCA”), established by an act of Parliament.

So given these factors, given the fact that our country is not known to have rogue governments that kidnap, torture, and kill its citizens, why was The Bahamas Government treated so unfairly (as evidenced) by the Commission?

These discussions will be continued….