In defence of the HRC

The Human Rights Commission (HRC) has come in for some criticism in recent weeks. First, Tony Brannon was unhappy with their refusal to investigate his complaint against Premier Alex Scott in the now infamous Blackberry saga. Then yesterday UBP Senator Bob Richards chided them for declining to investigate a complaint against PLP Senator Lt. Col. David Burch who referred to a caller to his radio show as a “house nigger”.

Both Mr. Brannon and Mr. Richards are wrong. In order for the HRC to investigate a complaint, a person must have been discriminated against or harassed in a way that is prohibited by the Human Rights Act. This did not happen in either the Brannon or Burch cases.

According to this Act, unlawful discrimination covers public notices; disposal of premises; provision of goods, facilities or services; employers; membership of organisations; taking part in proceedings under the Act; publishing racial material and racial incitement; sexual harassment; and discriminatory covenants. In both the Brannon and Burch cases it’s the racial material and incitement clause that’s appropriate. Here’s what that clause has to say:

8A (1) No person shall, with intent to excite or promote ill will or hostility against any section of the public distinguished by colour, race or ethnic or national origins—

(a) publish or display before the public, or cause to be published or displayed before the public, written matter which is threatening, abusive or insulting; or

(b) use in any public place or at any public meeting words which are threatening, abusive or insulting, being matter or words likely to excite or promote ill will or hostility against that section on grounds of colour, race or ethnic or national origins.

(2) No person shall, with intent to incite another to commit a breach of the peace, or having reason to believe that a breach of the peace is likely to ensue, do any act calculated to excite or promote ill will or hostility against any section of the public distinguished by colour, race or ethnic or national origins.

Section (1)(a) is clearly not appropriate in the Burch case as it refers to “written material”. Section (1)(b) covers public places, defined as

“any highway, public park or garden, any sea beach, and any public bridge, road, lane, footway, square, court, alley or passage, whether a thoroughfare or not; and includes any open space to which, at the material time, the public have or are permitted to have access, whether on payment or otherwise”

and public meetings, which are

“any meeting in a public place and any meeting in any place which the public or any section thereof are permitted to attend, whether on payment or otherwise”.

In other words, not a radio broadcast. Section (2) is clearly not relevant. A lawyer whom I consulted suggested that it would also be difficult to prove “with intent to excite or promote ill will or hostility”.

In the Brannon case, the Premier did not publish the email before the public (it was only sent to Mr. Brannon).

Given this, I am not surprised that the HRC rejected the complaints against both the Premier and Col. Burch. Testicular fortitude has nothing to do with it.

Whether the HRC can investigate a complaint is no more an indicator of appropriate behaviour than whether the police can prosecute someone (remember “unethical but not illegal”). Nevertheless, I believe that the Human Rights Act should be strengthened to a point where Col. Burch’s comments would indeed have been illegal. Perhaps section 8A (1)(a) of the Act should be revised to include “spoken matter”, or the definition of public place extended to include the airwaves.

That kind of hateful public utterance should have no place in today’s Bermuda.

Comments

[Uncle Elvis on 15.12.05 at 23:47]

Amen, mon ami. It SHOULD have been changed a long time ago to cover broadcasts.

Here's a q.

Would Bootsy's "they just have a suntan" thing be covered by the current legislation?
I'm not saying rise up and fight the fight about it, I'm just curious if it would be covered.

[Tim Taylor on 15.12.05 at 23:55]

Joke: "If a Black man takes your money for no apparent reason, you've been mugged.
If a White man does the same thing, you are dealing with a lawyer."

A while back, before you were here Phil, there was a huge debate in the Letters to the Editor (this was pre-internet) about Racist Remarks, and the upshot was that you couldn't be racist if you were black. It was "a white mans disease". Really. I wouldn't kid you about something like that.
The "N" word is in common usage among young black kids, but white kids aren't allowed to use it. It's considered dissing for a white kid (or is that phrase now SOOO twenty minutes ago?).
So it's fine, in fact it's pretty cool, for the Colonel to use the word, but not for you.
Okay, are we all straight on that?

[Chris Broadhurst on 19.12.05 at 11:04]

So true Tim. I also recall a PLP MP stating that if the PLP got into power it would "effectively end racism overnight".

[silencedogood on 19.12.05 at 11:56]

One could argue that the definition for 8(a)(1)(b) does include the broadcast, but it would be weak. You are right this needs changing.

I think the criticisms are more that the HRC doesn't use what authority it does have to address the issue. To the best of my knowledge they haven't said more than that they won't investigate. Please correct me if I'm misinformed. (it happens occasionally :))

If the HRC came out with a strong statement condemning these things and asking that the legislation be amended to include broadcasts or statements by public officials then I think those criticising at present would praise them and they would get a new set of critics. The bully pulpit doesn't require legislation.

[the dude on 19.12.05 at 12:39]

If Burch had said, "You goddamn house nigger!" it would have been wrong. But he probably said it like "shut up nigga!" you know like dave chappel, its ok for black people to talk like that, so I gather.

[Uncle Elvis on 19.12.05 at 12:55]

dude. No.

He didn't. That was not how he said it. It was said as an insult and an epithet.
End of story.

[the dude on 19.12.05 at 13:03]

It's a joke, we all know it was wrong, damn Bermudians are uptight.

[Chris Broadhurst on 19.12.05 at 13:07]

Given that radio has no colour - so you can't see who is talking, it will be interesting if the Broadcast Commission does anything about the 'N' comment. The word gets bleeped out of coutless rap songs on the radio so it must be deemed unbroadcastable (is that a word?).

So why is it OK for Colonal Handbag to say it?

[Uncle Elvis on 19.12.05 at 13:11]

Ummm.. riiiight.
A joke. Sorry. Must have missed the humour. Where was it again?

Sorry. you're right. I am uptight. One of the most uptight people you've ever met.

Got it in one.

Chris, it's not ok for him to say it! *grin*
He's ALLOWED to say it because he "gets things done", I guess.