US embassy cable - 05NASSAU1834

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