Hardtman and Others v Bermuda Regiment

• Jurisdiction: Bermuda
• Judgment Date: 17 November 2011
• Docket Number: Civil Appeal 2011 No. 7
• Date: 17 November 2011
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Before : Zacca, P; Ward, JA; Baker, JA

Civil Appeal 2011 No. 7

BETWEEN:

Jamel Hardtman

Lamont Marshall

Larry Marshall

Appellants

and

The Commanding Officer of the Bermuda Regiment

The Chairman of the Defence Exemption Tribunal

Interested Parties

Respondents

Mr E Johnston for the Appellants

Ms S Dill for the Respondents

The following cases were referred to in the judgment:

Bayatyan v Armenia ECHR 253/03

Khan v Royal Air Force Summary Appeal CourtUNK [2004] EWHC 2230 (Admin)

R (Limbuela) v Home SecretaryELR [2006] 1 AC 414

Abstract:

Constitutional rights - Forced labour - Conscientious objector - Military service

JUDGMENT of Ward, JA

Introduction

1. On the 7th day of November 2011 we dismissed the appeal and said our reasons would follow. We now give the reasons.

2. This is not the first attempt by the appellants to avoid having to serve in the Bermuda Regiment.

3. In Civil Appeal No. 3 of 2008 in which the same parties and others appeared, the Court held that conscription is not forced labour and is not unlawful. The effect of conscription was that conscripts are subject to the rules, regulations and discipline of the Regiment. Once conscripted, service of one type or another must be performed, unless the conscript is exempted. The mere belief of a conscientious objector does not excuse him from performing his duty of service in the Regiment.

4. The appellants and others appealed to the Privy Council in Appeal No. 0074 of 2009 [2010] UKPC 9 in which the Board held that conscription does not constitute unlawful discrimination against men in breach of the Human Rights Act 1981 and further that there was nothing to suggest that sufficient women volunteers could be found to fill any quota of women that might be settled upon.

5. The appellants having lost their argument about conscription being in breach of the Human Rights Act 1981 have taken new wind and argue that their constitutional rights have been violated in that pursuant to section 4(3)(b) of the Constitution, their right to be protected from forced labour has been violated. Section 4 of the Bermuda Constitution Order 1968 reads:

"Protection from slavery and forced labour

4 (1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour.

(3) For the purposes of this section, "forced labour" does not include …

(a) any labour required in consequence of the sentence or order of a court;

(b) any labour...