Famous and Others v Attorney-General of Bermuda, Chairman of the Defence Exemption Tribunal and the Governor

• Jurisdiction: Bermuda
• Judgment Date: 15 September 2011
• Date: 15 September 2011
• Docket Number: Civil Jurisdiction 2011 No. 13
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2011 No. 13

In the matter of the Bermuda Constitution Order 1968

And in the matter of the Defence Act 1965

And in the matter of the Bermuda Regiment Governor's Orders 1993

And in the matte of Applications for Exemption from Military Service on the Grounds of Conscience

BETWEEN:

James Famous, Shaki Easton, Seth Ming, Tekle Ming

Applicants

and

The Attorney-General of Bermuda, The Chairman of the Defence Exemption Tribunal, HE the Governor of Bermuda

Respondents

Mr E Johnston for the Applicants

Ms S Dill for the Respondents

The following cases were referred to in the judgment:

Bayatyan v Armenia ECHR 253/03

American Cyanamid Co v Ethicon LtdELRWLR [1975] AC 396; [1975] 2 WLR 316

Hardtman v Bermuda RegimentBDLR [2011] Bda LR 28

Abstract:

Compulsory military service - Unconstitutional - Impartiality - Interim injunction pending trial

JUDGMENT of Greaves, J

Introduction

1. The Applicants are members of the group Bermudians Against the Draft, also known as BAD. By Originating Summons dated 19 January 2011 they are seeking certain constitutional relief. In particular, they are seeking various declarations and orders relating to their objection to compulsory military service. Such declarations include a finding that they are conscientious objectors, that their compulsory service would be forced labour, that certain provisions of the Defence Act are unconstitutional, that the Defence Exemption Tribunal is unconstitutional for lack of independence and impartiality, an order for the legislature to consider and alter the constitution.

2. This action is the latest in a series of actions taken by the members of the group. Such actions have reached as high as the Privy Council without success. At the time of this hearing another, Jamal Hardtman et al v The Commanding Officer of the Bermuda Regiment and othersENR No. 216, 218 and 213 of 2010 had been scheduled for trial before another judge.

3. The relevant issues and facts to be raised in the present suit appear to be identical to those being raised in the Hardtman case. Pursuant to this suit, the Applicants have by way of summons dated 19 January 2011 made application for an interim injunction against the Respondent in the following terms inter alia;

i. Until after the trial of this action or further order of the court, the Respondent must not;

(i.a) arrest and or detain each or any of the Applicants to this action;

(i.b) use of any form of compulsion whatsoever for the purpose of disciplining, punishing and or forcing the Applicants collectively or individually to perform mandatory military service to the Regiment.

4. The injunction matter was heard in chambers before me on 27th January 2011 and adjourned to 31 January 2011. At the conclusion of the hearing on 31st January 2011, the parties agreed that no decision should be handed down until the sister matter, Jamal Hardtman et al v The Commanding Officer of the Bermuda Regiment and others was heard. As earlier said, that matter was scheduled to be heard before Justice Wade-Miller shortly and consisted of the identical issues and similar facts raised by other members of BAD with both counsel leading in that case. The Crown undertook not to enforce any orders against the Applicants until that decision or further order of this court. The matter was consequently adjourned pending the decision in the Hardtman case.

5. The Hardtman matter was heard between 7th February 2011...