Hardtman and Others v Bermuda Regiment

• Jurisdiction: Bermuda
• Judgment Date: 04 May 2100
• Date: 04 May 2100
• Docket Number: Civil Jurisdiction 2010 No. 216,218 and 233
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No. 216,218 and 233

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's Treatment Generally of the Question of Conscientious Objection and the Treatment of Conscientious Objectors

BETWEEN:

Jamel Hardtman, Lamont Marshall, Larry Marshall Jr.

Applicants

and

The Commanding Officer of the Bermuda Regiment, The Chairman of the Defence Exemption Tribunal

Respondents

His Excellency the Governor of Bermuda, The Minister of National Security (formerly the Minister of Labour, Home Affairs and Housing)

Interested Parties

Mr E Johnston for the Applicants

Ms S Dill for the Respondents

The following cases were referred to in the judgment:

Sepet v Secretary of State for the Home DepartmentWLR [2003] 1 WLR 856

Fay v Governor of BermudaBDLR [2006] Bda LR 65

R v GoughELR [1993] AC 646

Marshall v Deputy Governor of BermudaBDLR [2008] Bda LR 72

Huang v Secretary of State for the Home DepartmentUNK [2007] UKHL 112

R (Williamson) v Secretary of State for Education and EmploymentELR [2003] QB 13002

Khan v Royal Air Force Summary Appeal CourtUNK [2004] EWHC 2230 (Admin)2

Labita v Italy [2000] ECHR 26772/952

Ireland v UK [1978] ECHR 5310/712

Kudla v Poland [2000] ECHR 30210/962

Yankov v Bulgaria [2003] ECHR 39084/972

Hurtado v Switzerland [1994] ECHR 17549/902

Keenan v UK [2001] ECHR 27229/952

Peers v Greece [2001] ECHR 28524/952

R (Limbuela) v Secretary of State for the Home DepartmentELR [2006] 1 AC 3962

Barraclough v BrownELR [1897] AC 6152

Abstract:

Constitutional rights - Conscription - Conscientious objector - Arrest for failure to appear for military service - Forced labour - Deprivation of liberty

JUDGMENT of Wade-Miller, J

The Parties

1. The Applicants Messers. Jamel Hardtman, Lamont Marshall and Larry Marshall, Jr are members of the Anti-Conscription Campaign Group, Bermudians against the Draft ("BAD").

2. The Respondents are the Commanding Officer of the Bermuda Regiment ("the COBR"), and the Chairman of the Defence Tribunal.

3. The interested parties are His Excellency the Governor of Bermuda and the Minister of National Security (formerly the Minister of Labour Home Affairs and Housing).

Background

4. On the 27th May 2010 the COBR sent each of the first two named Applicants recommencement of military service orders. Each Applicant's history after he received the order is different but each refused to serve on the basis of his claim to be a conscientious objector and brought separate actions.

5. The third Applicant applied to the Defence Exemption Tribunal ("DET") for total exemption from the performance of any form of military service in the Regiment on the ground that he is a conscientious objector. The DET heard the third Applicant who claims that the DET found that it had no authority to determine if he was a "conscientious objector" and deferred his application for a period of one year so he could challenge the lawfulness of the Regiment's policy of enforcing mandatory military service.

Issue

6. The overall issue in this matter is whether the COBR, in arresting the first two Applicants because they failed to appear for military service having not appeared before the Exemption Tribunal, was acting in breach of their Constitutional rights and in particular their right to manifest their belief as conscientious objectors.

7. The Constitutional relief sought by the Applicants pursuant section 15(2) of the Constitution is set out in paragraph 22.1 to 22.13 of their Originating Summons for a Constitutional relief. The Applicants did not address the court on the different forms of relief as they wanted the initial challenge settled before they did so. By an Order of Court dated 26th August 2010 the actions are being heard together with the Application for relief pursuant to the Constitution being heard first.

The Complaint

8. The Applicants overall issue is reformulated and dealt with under six heads.

i. The first is that Messers Hardtman's and Marshall's right to be protected from forced labour was violated.

ii. Second, the Exemption Tribunal does not comply with section 6(8) of the Constitution.

iii. Third, the right to believe whatever one wish, and to manifest that belief has been violated in respect of Messers Hardtman and Marshall.

iv. Fourth, they were deprived of their liberty.

v. Fifth, Mr Lamont Marshall alone, for the purpose of this argument, is entitled to a discharge pursuant to section 28 of the Defence Act 1965.

vi. Sixth, looking at the sum total of the things that took place, what the Regiment has done to Messers Hardtman and Marshall, was to have subjected them to inhumane or degrading treatment, contrary to Section 6 of the Constitution.

9. Mr Johnston, counsel for the Applicants maintained that notwithstanding the Order of the Court 'that the Constitutional issue be heard first' if the Constitutional questions are resolved first the other public law questions fall away and can be decided in one manner only.

10. Mr Johnston developed the six arguments and emphasized that Mr Larry Marshall Jr. is only concerned with the impartiality argument because he has already appeared before the Exemption Tribunal.

11. There is substantial and factual legal similarity in each matter. The Applicants are all members of the campaign group, "Bermudians Against the Draft" ("BAD"). They object to performing military service. Their "collective view is that the Bermuda Regiment ("The Regiment") is administered in an oppressive and unlawful manner." BAD is campaigning to end military conscription in Bermuda. The members of BAD believe, inter alia, that to perform mandatory military service in the Regiment is to "impliedly lend support to the improper way the Regiment is administered". Consequently no person should take up employment or be compelled to perform regimental duties.

12. A summary of the facts as they relate to each of the three Applicants follows: -

Mr Lamont Marshall's case

13. At 11:00 am on 5th July 2010 Regimental Police went to his home to arrest him. He had been previously arrested by the Regimental Police, detained at Warwick Camp for two (2) days and during that incident he resorted to a hunger strike.

Once he learnt Regimental Police were at his home he immediately, on 5th July 2010, applied for and was granted an interim injunction preventing the Regimental Police from arresting or detaining him to allow him to conclude the relevant legal paperwork required to challenge the lawfulness of the COBR's decision to arrest him.

Mr Marshall first attended Warwick Camp during the latter part of 2002; he said at that time he was unaware of his right to object to mandatory military service on conscientious grounds. He was raised as a devout Christian, with beliefs which are contrary to the operations and workings of the Regiment. His experience in the Regiment was a terrible one. Before being enlisted he had to undergo a physical examination. There was no privacy while the men were awaiting medical examination, all the men were brought together into a room where they were ordered to strip down to their underwear. The examination is carried out in a group, in another room which is slightly smaller.

14. In his evidence he listed a number of other matters:-

vii. to teach regimental discipline the recruits were made to watch pornographic films.

viii. the standard of treatment included a number of humiliating experiences. For example, his foot split during a parade due to the weight of various items he had to carry around. Expletives are the words most used, conscripts mothers are called derogatory names, alcohol which is used excessively is the choice beverage for Regimental Officers, soldiers are made to urinate into cans, water for showers is cold and uncomfortable. They were made to run long distance against their will, brought to physical exhaustion in the name of military training, forced into a gas chamber - masks are worn but were ordered to be taken off once they were inside the chambers. The days were long and grueling - between 16 and 18 hour days during recruit camp.

Recent Arrest

15. On May 27th 2010 he was one of the subjects of a service order, as well as Jamel Hardtman, which was sent via his father. The order required him to speak to Regimental Sergeant Major Lee on or before 3rd June 2010. He refused. On 16 June 2010, while on his job, he was arrested by Regimental Police. At about 4:30pm they took him to Warwick Camp and kept him in a hot, humid and poorly ventilated cell, with no toilet and very little room, where he stayed until around 11:00 am the following day. He believes he was charged with "insubordination" and not "complying with orders".

16. When the COBR saw him he took up the role of prosecutor and jury. He fined him $500 and he was ordered to return to Warwick Camp on 4th July 2010 to undergo military training with the Cadet Corp. He told the COBR that he would not be paying the fine nor would he be attending Cadet Camp. Among his reasons was his

unequivocal stated view that his conscience would not allow it. It was his conscience that compelled him to spend his time in the cell on hunger-strike.

Beliefs

17. Mr Marshall says that the Regiment's conscription regime violates the right of every man in Bermuda between the ages of 18 and 33. Notwithstanding the exception of the prohibition against forced labour set out in Bermuda's constitution he believes that conscription to the Regiment is forced labour "undeserving" of constitutional protection. There could be no excuse of forcing young men alone to perform military service. He cannot in good conscious conduct any good service in the Regiment, as through this the Regiment will be supported in violating the rights of all those who may be caught in the vice of conscription. His service would lend support to the idea that young men...