Why do we need a Human Rights Act when we already have a Constitution? In a Letter to the Editor published on December 19, Mr Khalid Wasi commented on the recent ruling of the Chief Justice, in the "Bermuda Bred" case concerning the grant of work permits to same-sex and unmarried heterosexual couples.
In that letter, Mr Wasi questioned whether the Chief Justice had supplanted the primacy of the Bermuda Constitution Order, 1968 with that of the Human Rights Act, 1981.
At the outset, I state that I have always appreciated Mr Wasi's insights and I am grateful to him for highlighting this issue.
I also wish to answer Mr Wasi's query concerning the primacy of the Human Rights Act and its position in relation to the Constitution, in my capacity as a human rights lawyer.
In 1968, the United Kingdom provided Bermuda with its own Constitution, which was passed as an Order in Council pursuant to the Bermuda Constitution Act, 1967. As our Constitution is British legislation, it may only be amended by an Act of the Parliament of the United Kingdom.
The primary reason why the British government passed our Constitution was to provide binding directives which defined the roles, powers and responsibilities of the Governor and the legislature of Bermuda. This means that our Constitution is the legal document which empowers our legislature to pass the laws that govern Bermuda. In passing our Constitution, the British government also sought to fulfil Britain's obligation to implement the terms of the European Convention on Human Rights and Fundamental Freedoms into Bermudian law, for the purpose of limiting the powers of the government that may infringe the rights of individuals living in Bermuda.
While many of the rights guaranteed by the European Convention were incorporated into our Constitution, such as the right to life, to a fair trial and not to be deprived of property, the British government failed to implement other fundamental protections such as the right to not be discriminated against on the basis of one's gender. Another thing that our Constitution does not do is prohibit discrimination between private individuals. For that reason, our Constitution is flawed as it does not provide complete protection to the fundamental rights and freedoms that are guaranteed by other North American and Western European jurisdictions.
It was against that backdrop that the government of Bermuda, in 1981, decided to pass legislation which would supplement the rights guaranteed by the Constitution. In doing so, the legislative "holes" left by the Constitution, such as the right to not be discriminated against on the basis of gender, were "filled". Furthermore, the right to be free from discrimination at the hands of private individuals in the workplace, the residential context and service sector were also guaranteed. Some years later, our Legislature also saw fit to provide tribunals and the courts with the power to strike down provisions of Bermudian legislation if the effect of the law in question was to violate rights guaranteed by the Human Rights Act.
The Human Rights Act, however, being an Act of the Bermuda legislature, is subject to the Constitution. For that reason the Human Rights Act's provisions may be judicially amended or struck down by the courts in the event that they are found to violate the terms of the Constitution. It is therefore legally impossible for our Constitution, which is legislation passed by the UK parliament, to be judicially declared by Bermuda's courts to be incompatible or in violation of our own Human Rights Act.
With this in mind, our Constitution may be best described as providing the minimum of human rights that the UK saw fit to give us in 1968. In 1981, however, the government of the day decided to supplement those minimal rights by guaranteeing further rights through our own Human Rights Act, which was passed by Bermudian MPs in Bermuda's House of Parliament, and which may be amended by our own government. The fortification of our human rights in Bermuda is otherwise allowed by our Constitution as long as our own legislation does not violate the terms of our Constitution. Where our Constitution, as provided by Britain, is silent on an issue concerning the rights of an individual, it is open to the government of Bermuda to add to the protections afforded to individuals as guaranteed by the Human Rights Act and to enable our tribunals or courts to enforce those rights.
In providing these observations, and in response to one of Mr Wasi's concerns, I add that on reading the ruling of the Chief Justice as provided in the Bermuda Bred case, the Chief Justice said at paragraphs 23, 72 and 75 that it is presently impossible for same-sex couples to marry in Bermuda. For that reason, it might be inferred that the issue of whether same-sex marriage should be allowed in Bermuda is a subject that the Chief Justice intends to leave to the legislature.
Originally published by The Royal Gazette, December 23, 2015.
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