Haroon Marshall and Others v Deputy Governor of Bermuda and Others
| Jurisdiction | Bermuda |
| Judgment Date | 28 November 2008 |
| Date | 28 November 2008 |
| Docket Number | Civil Appeal 2008 No. 3 |
| Court | Court of Appeal (Bermuda) |
In The Court of Appeal for Bermuda
Before: Zacca, P; Nazareth, JA; Ward, JA
Civil Appeal 2008 No. 3
Mr J Crow, QC, Mr D Duncan and Mr E Johnston for the Appellants
Mr R Singh, QC and Mr H Shepheard for the Respondents
Bedfordshire Police v Liversidge ICR [2003] ICR 88
Peters v The Netherlands (1994) 77A DR 75
Creednz Inc v Governor-General [1981] 1 NZLR 172
Carltona v Commissioner of Works UNK [1943] 2 All ER 560
Whitter v R BDLR [2002] Bda LR 33
Evans v Minister of Education BDLR [2006] Bda LR 52
Bermuda Constitution Order s. 4(2)
Conscription for military service - Whether unconstitutional - Meaning of "forced labour" - Discrimination - Quota
1. The Appellants are members of an organization "Bermudians Against the Draft." They object to performing military service. They have received Call-up Notices pursuant to Section 17 Defence Act 1965. They have not served as required by the Act.
2. They were served with Call-up Notices because the number of persons who enlisted voluntarily was insufficient to enable the Bermuda Regiment to perform its role in Bermuda as envisioned by the Defence Act. In the year 2006 there were two volunteers. The role of the regiment is largely ceremonial but also, as a military unit, it is to support the Civil Power. It must have the structure and attributes necessary for emergency relief work in a national disaster and is to support the Civil Authority with the security of Bermuda, its peoples, property, livelihood and interests in order to maintain normality.
3. Ground 1 of the Grounds of Appeal in essence is that conscription for compulsory military service in the Bermuda Regiment is contrary to section 4(2) of the Constitution and is unlawful.
Section 4 of the Bermuda Constitution Order 1968 provides as follows:
(2) No person shall be required to perform forced labour.
(3) For the purposes of this section "forced labour" does not include
(b) any labour required of a member of a disciplined force in pursuance of his duties as such or, in the case of a person who has conscientious objections to service in a naval, military or air force, any labour that a person is required by law to perform in place of such service;
(d) any labour required during a period of public emergency (that is to say, a period to which section 14 of this Constitution applies) or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of such labour is reasonably justifiable……."
Section 14 (1) of the Constitution provides as follows:
"This section applies to any period when
(a) Her Majesty is at war; or
(b) there is in force a proclamation (in this section referred to as proclamation of emergency made under subsection (3) of this section."
4. The Appellants draw a distinction between a person who is already a member of the Regiment and who can lawfully be ordered or required to perform labour and a person who is only in the process of becoming a member and who is not yet a member and who may not be ordered or required to perform any duties.
5. In support of that interpretation Counsel for the Appellants argued that legislation protecting human rights should be interpreted broadly so as to give effect to its true purpose namely to ensure contemporary protection of the relevant rights in light of contemporary standards. The argument continued that requiring a person to join the regiment against his will involves imposing on him an obligation to perform forced labour which is contrary to section 4 (2).
6. We cannot help but observe that that interpretation ignores the definition of what is not 'forced labour' in section 4 (3). We are reminded of the caveat of Peter Gibson L.J. in Chief Constable of Bedfordshire Police v LiversidgeICR[2003] ICR 88 that in adopting a purposive approach to construction it is impermissible to rely on the general purpose of the Act to construe the Act in a way that eliminates the limitations and qualifications.
7. Persons are required to serve after they are conscripted and not before. After conscription they are men of the regiment and subject to the rules, regulations, and discipline thereof and must obey lawful commands. Pursuant to section 4 (3) (b) the labour or service required of them after conscription is not 'forced labour".
8. Counsel for the Respondents argued that Section 4 of the Constitution contemplates compulsory military service for the concept of conscientious objector is meaningful only where compulsory military service operates. We find that reasoning convincing.
9. Pursuant to Article 4 of the European Convention "forced labour" does not include any service of a military character. Moreover, compulsory conscription is compatible with the Convention unless it breaches another free-standing right such as religious freedom or freedom from inhuman or degrading treatment or torture.
10. In Peters v The Netherlands, Appeal No. 22793/93 it was held that under the European Convention, compulsory military service is not unlawful and may be demanded of a conscript and the mere belief of a conscientious objector to military service is insufficient to gain exemption from the performance of substitute civilian service. Service of one type or the other must be performed once conscripted. We are clearly of the opinion that compulsory service in the Regiment is not forced labour and is not unlawful.
11. Ground 2 of the Grounds of Appeal is that the learned Trial Judge adopted an inappropriately narrow view of the Human Rights Act 1981 in holding that conscription of men only did not involve unlawful discrimination contrary to section 6 (1) (a) and /or (e) and / or (g) of the said Act.
Under Section 2 (2) of the Act a person is deemed to discriminate against another person if he -
"Treats him less favourably then he treats or would treat other persons generally or refuses or deliberately omits to enter into any contract or arrangement with him on the like terms and the like circumstances as in the case of other persons generally or deliberately treats him differently to other persons because -
(ii) Of his sex
Section 6 (1) of the Act deals with discrimination in employment and reads:
"Subject to subsection (6) no person shall discriminate against any person in any of the ways set out in section 2 (2) by
(a) Refusing to refer or to recruit any person or class of person (defined in section 2) for employment;
(e) Establishing or maintaining any employment classification or category that by its description or...
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