A v Attorney General

JudgeKawaley, C.J.
Judgment Date23 October 2017
Neutral CitationBM 2017 SC 112
Docket NumberCIVIL JURISDICTION 2017: No. 197
CourtSupreme Court (Bermuda)
Date23 October 2017

In The Supreme Court of Bermuda

Kawaley, C.J.


The Attorney General

Mr Peter Sanderson, Benedek Lewin Limited, for the Petitioner

Mrs Lauren Sadler-Best, Attorney General Chambers, for the Defendant

Application for declaration of constitutional invalidity of statutory provisions discriminating against one class of belonger and in favour of another class of belonger — right to own land — right to control local companies and benefit from local trusts-Bermuda Constitution, sections 11(5) and 12-Bermuda Immigration and Protection Act 1956, section 72(1)-Companies Act 1981, sections 113, 114 and Third Schedule.


(in Court)


By an Originating Summons issued on 5 th June 2017, the Applicant (whose place of origin is the United Kingdom) seeks the following relief.


Firstly, a declaration that, as a person who belongs to Bermuda pursuant to section 11(5) of the Constitution and has a right to engage in employment or any business or profession without discrimination pursuant to section 12 of the Constitution, he is not subject to the “60/40” restrictions for the ownership of local companies as set out at sections 113, 114 and the Third Schedule of the Companies Act 1981, and that the words “or belongs to Bermuda” must be read into section 113(1)(b) (and (f) as regards trusts) of the Companies Act.


The Appellant further seeks a declaration that as a ‘belonger’, the discriminatory provisions of Part VI of the Bermuda Immigration and Protection Act 1956 (“BIPA”) regarding ownership of land do not apply to him, and that the definition of “restricted person” in section 72(1) of BIPA must be read so as to exclude all persons who belong to Bermuda, not just Bermudians, from the definition of restricted person.


The essence of the present application is to seek vindication of the proposition that as regards matters such as employment, business and professional activities, the Bermuda Constitution creates one class of ‘belonger’ and does not entitle Parliament to discriminate as between:

  • • those who possess Bermudian status; and

  • • those who “belong to Bermuda” for the purposes of section 11(5) of the Constitution who do not.

The evidence

The present application was supported by an Affidavit sworn by the Applicant which made the following key averments in paragraphs 5 and 9 respectively:

  • 5. Pursuant to the 60/40 rule I am not allowed to own shares or be a director of a company unless 60 percent of the ownership and control of the company is in the hands of Bermudians. This is a hindrance to my ability to engage in business in Bermuda. It means that I am required to have a 60% majority of Bermuda partners in any local business venture I am part of and these disabilities also diminish my attractiveness to a business.

  • 9. Pursuant to part 6 of the Bermuda Immigration and Protection Act 1956 (“BIPA”), I am a restricted person in terms of ability to acquire land…”


The deponent then goes on to set out the various restrictions that apply under the 1956 Act, including restrictions in respect of acquiring land without a licence.

The issues in controversy

The Respondent in this case did not advance any positive opposition to the proposition that the relevant statutory provisions did on their face discriminate against persons who belong to Bermuda for the purposes of Section 11(5) but who did not possess Bermudian status. The only opposition which was raised addressed two issues. Firstly the issue of standing was raised, albeit shortly prior to the present hearing. And, secondly, the entitlement of the Applicant to damages if he succeeded was also disputed. In the event Mr Sanderson for the Applicant abandoned his claim to damages and so the only real issue in controversy was the question of standing.


Before addressing the standing issue, it is perhaps helpful to consider the merits of the application because the standing issue to my mind is closely intertwined with the merits of the discrimination argument.

The relevant provisions of the Bermuda Constitution

In this case the Applicant relies on the following constitutional provisions. It is conceded that he is a person who falls within the provisions of section 11(5)(b) of the Constitution 1, which includes, in brief, a citizen of the United Kingdom who has been naturalized as a citizen of the United Kingdom in respect of Bermuda 2.


The next provision that is relevant is section 12(4). I should start off with subsections (1) and (3) of that section, which provide:

  • (1) Subject to the provisions of subsections (4), (5) and (8) of this section, no law shall make any provision which is discriminatory either of itself or in its effect…

  • (3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”


Those are the primary anti-discrimination protections in the Constitution which are of course subject to very important, and carefully delineated, exceptions. Subsection (4) provides crucially as follows:

  • “(4) Subsection (1) of this section shall not apply to any law so far as that law makes provision


    • (b) with respect to the entry into or exclusion from, or the employment, engaging in any business or profession, movement or residence within, Bermuda of persons who do not belong to Bermuda for the purposes of section 11 of, this Constitution..:”


It is noteworthy that the business, profession and residence rights are, on their face, to be enjoyed equally by persons who dobelong to Bermuda” under section 11, and not solely by reference to the possession or enjoyment of Bermudian status. There are two other provisions which may be distinguished from section 12(4)(b) of the Constitution upon which the Respondent was unable to rely.


Firstly Section 12(4)(d), which provides:

  • “(d) whereby persons of any description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society..:”


That exception, it seems to me, is designed to facilitate any exceptional measures being taken, for example to exclude from Bermuda persons coming from a particular part of the world where, at a particular point and time, there may be contagious diseases. The other provision which permits discrimination in favour of Bermudians ahead of other persons who “belong to Bermuda” is subsection (5) of section 12, which again it was implicitly conceded did not apply here. That subsection provides:

  • “(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that it requires a person to possess Bermudian status or belong to Bermuda for the purposes of section 11 of this Constitution or to possess any other qualification (not being a qualification specifically relating to race, place of origin, political opinions, colour or creed) in order to be eligible for appointment to any office in the public service or in a disciplined force or any office in the service of a local government authority or of a body corporate established directly by any law for public purposes.”


So the circumstances in which there can be a two-tier legislative scheme for persons who belong to Bermuda by virtue of possessing Bermudian status and persons who “ belong to Bermuda” by virtue of some other gateway are limited, and cannot be relied upon in the present case.

Relevant judicial authority

The one authority that Mr. Sanderson relied upon in support of this way of reading these constitutional provisions is the Court of Appeal's decision in Minister of Home Affairs and Attorney General v Melvern Williams [2016] Bda LR 40, where Sir Scott Baker (P) gave the judgment of the Court, and made the following crucial findings which merit reproduction in full (starting at paragraph 24):

  • 24. The Chief Justice held that section 12 gives rise to a separate freestanding ground of complaint. It arises on this way. Section 12(1) provides that ‘no law shall make any provision which is discriminatory either of itself or in its effect.’ ‘Discriminatory’ is defined in section 12(3) as meaning affording different treatment to different persons attributable to place of origin as one of the things protected. Section 12(4) provides for certain exclusions from the general non-discrimination rule in section 12(1). These include 12(4)(b) people who do not belong to Bermuda in relation to work. As the respondent does belong to Bermuda he is not within this exclusion and is protected by section 12(1). One turns therefore to section 60(1) of the 1956 Act which plainly prohibits someone in the respondent's shoes from engaging in any gainful occupation without the specific permission of the Minister…

  • 26. Although not formally conceding that the appeal must fail on indirect discrimination Mr Guthrie did not pursue the point with any great vigour in the light of Thompson v Bermuda Dental Board (Human Rights Commissioner Intervening) [2008] UKPC 33 . In order to practise in Bermuda a dentist must register with the Bermuda Dental Board, which has a policy of limiting registration to Bermudians or the spouses of Bermudians. Consequent on...

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