THE Human Rights Commission (HRC) is now demanding that residents be means tested if they expect their concerns to be heard before a tribunal.

Free legal assistance had previously been provided to persons with valid complaints. At the end of 2004, however, the Government organ began asking that complainants submit their bank records for scrutiny, with Commission administrators determining who was eligible to receive financial aid.

Political activist Khalid Wasi served on the Commission for 13 years. During that time, he worked diligently to ensure that residents' civil liberties were protected. That such rights should now be afforded at a price is contrary to the spirit of the Human Rights Act of 1981, he said, adding that he had been angered by the change.

"I think we're going down a very dangerous trail in my view," he said. "The Commission was set up to guarantee the rights of the citizens and the posture of the Commission is that it should be there to guarantee the rights of its citizens without regard to their financial circumstances.

"In the 13 years that I was there, I don't know of a single instance where an individual came in with a valid case against an institution where the Commission didn't understand right up front, that the person needed aid ? we signed for it; they gave it.

"What the Human Rights Commission is now saying, is that you've got to set aside funds in case you might some day need to defend your human rights. Whether you're Bermudian or non-Bermudian, black or white, religious or irreligious, they're supposed to be there to defend your rights and they've now basically stepped off."

HRC chairman Rod Attride-Stirling yesterday said the group adopted means testing last year in keeping with practices employed by similar institutions in other jurisdictions.

"There are many practices we've had in Bermuda that aren't necessarily the best practice," he said. "It's a question of always looking to try and improve things. There is a limited amount of funding that is available for boards of inquiry and there's a desire to make sure that no one is unable to actually get before a board of inquiry.

"All applications going before a board of inquiry now would be subject to that procedure.The means test is applied in a similar way to the way that legal aid works. Not everyone will get legal aid. And not everyone will get financial assistance for boards of inquiry."

Asked why, then, someone should bother bringing a case before the Human Rights Commission when they could receive the same results before a court of law, Mr. Attride-Stirling said: "The beauty of it is this, the Human Rights Commission, at no cost whatsoever to either party, will attempt to conciliate the dispute. If that is successful, that might see a successful complaint paid an amount of money in damages, receive an apology, and giving him the things that he wants, all at no cost."

He denied the conciliation process would mean little where there is no resolution and the complainant is forced to pay to have their concerns addressed further.

"There will be cases that fall into that category of course," he said. "But the complainant still gets a lot of value out of the Human Rights Commission. The board of inquiry stage is a part of it, but I think the greater value is at that earlier stage ? providing a free conciliation service and if that isn't sufficient, a free, formalised investigation service."

The HRC is a ten-member body created to review human rights complaints. If the Commission determines that an offence has taken place, that opinion is sufficient to justify the matter be brought before the Minister or a board of inquiry.

According to Mr. Attride-Stirling, fewer than a handful of cases went before a board of inquiry last year. As such, he admitted, only one case had applied for, and received, legal assistance. Asked what the group's operating budget was, he confessed he had no idea, but allowed that it was "a much smaller number" than $100,000.

As stated under the Human Rights Act of 1981, applications for assistance "may" be granted if the Commission considers it fit to do so.

Such assistance, the law continues would be granted ". . . on the ground that it would be unreasonable, having regard to the complexity of the case or the complainant's position, in relation to the person against whom the the complaint is made or another person involved or any other matter, to expect the complainant to deal with the case unaided."

The Act defines the use of the word 'assistance' as "giving advice, arranging for the giving of advice or assistance by an attorney, arranging for representation by any person and any other assistance which the Commission may consider appropriate".

Explained Mr. Wasi: "What it's saying here, generally, is if you're an individual and the person you're complaining against is an institution ? a bank or a large company ? it will be understood their finances will be greater than yours.

"It's my understanding that a great deal of these cases are against Government and that's where it's their position to support those individuals. The Commission has been able to substantiate that there's a prima facie case to take forward.

"In taking that position to send the case forward and not being prepared to help the complainant financially, I think it's a reversal of the spirit of the Human Rights Commission.

"I consider what they've done to be unethical. They've taken the phrase, 'may grant it if it considers it fit to do so' to mean that this is not an automatic. We can grant it, we may grant it, but we don't have to. And what they're doing, if they find out you have the means to hire your own lawyers, then they take the position that you can."

The problem with that view, Mr. Wasi said, is that while someone may appear to have the means to hire a lawyer, financial commitments might have that cash earmarked for other expenses.

"I've heard where individuals have cases against Government, and the Commission is asking them for financial proof that they don't have the means to acquire a lawyer and they've been very obstinate about it. People have taken the trouble of having their own accountants prove they don't have the means and they've still been asked to produce personal papers and financial records." According to Mr. Attride-Stirling, a number of factors are looked at in determining whether a person is eligible for aid.

"The fact that one party may be a large party is something that's taken into account in the means test, but it is not the only thing that's taken into account," he said. "If one party is a large company or institution and the other party is a wealthy individual, would you as a taxpayer be comfortable seeing (aid given)?"

Mr. Wasi was removed from the Human Rights Commission in 1998, when the Progressive Labour Party first came into power. It was shortly after that, he said, that he noticed a change in how the Commission weighed the information presented before it.

"A good part of our budget was spent on seminars for the Human Rights Commissioners themselves. We had all kinds of training to recognise the difference between cultural issues, race issues and genuine issues of discrimination.

"We were trained, in my day, to look at the issues not purely from the law of evidence, but from our own human experiences. The Commissioners are supposed to be sufficiently humane to be able to detect when something inhumane takes place, based on what they feel and sense.

"The first change I noticed in the Commission was that they began to pursue cases on the basis of whether or not there was sufficient evidence. It's very difficult to ever prove an instance of discrimination.

"Unless you have tangible evidence, it'll never happen. And in 1998, they started to vet cases ? on even an administrative level ? on the basis of evidence. The Commissioners themselves never got to the point where they could say, 'I think this person's been discriminated against'."

Mr. Wasi agreed that for the Commission to empathise with a case, and then insist they pink up or prove poverty for the case to move forward, could only be upsetting to the complainant.

"Absolutely I agree," he said. "I've talked to other former members and it's unheard of. I don't think there's any country that would interpret that Act in that fashion.

"It's clear. Certainly if the (party alleged of wrongdoing) is an institution like a bank or Government, it should just become automatic fact that this person can't fight against that institution unaided. The case could drag on and on; their resources could be completely depleted."

He added that he questioned the Commission as to its change in interpreting the Act, without positive resolution.

"What they've said is that the Act says 'may' and they're using that. What I say, is it's a clear case where the Human Rights Commission is now sliding down the same road (as the Bermuda Housing Corporation), taking a position or stance which is not illegal, but is unethical.

"I think that's a serious position for a country to be in. If you think of countries like China and Cuba, countries in the world we feel flagrantly violate human rights, you'll find our Government and other civilised governments try to distance themselves from those kinds of jurisdictions.

"We now have our Premier touting Independence. He's said that he wants the right to choose the Chief Justice. He wants greater control over the police. What kind of jurisdiction can we look forward to having in the future if they reverse all the good the Human Rights Commission has done over the past 25 years?"