A v Attorney General

• Jurisdiction: Bermuda
• Judgment Date: 23 October 2017
• Date: 23 October 2017
• Docket Number: Civil Jurisdiction 2017 No 197
• Court: Supreme Court (Bermuda)

[2017] Bda LR 111

In The Supreme Court of Bermuda

Civil Jurisdiction 2017 No 197

Between:

A

Plaintiff

and

Attorney General

Defendant

Mr P Sanderson for the Plaintiff

Mrs L Sadler-Best for the Defendant

The following cases were referred to in the judgment:

Minister of Home Affairs and Attorney General v Williams [2016] Bda LR 40

Minister of Home Affairs v Fisher [1980] AC 319

Mirbel v The State and ors [2011] 2 LRC 196

R v Secretary of State for the Home Department ex parte Salem [1999] UKHL J0211–3

The People v Rattigan [2015] IECCA 7

Minister of Home Affairs and Attorney General v Barbosa (Costs) [2017] Bda LR 32

Application for declaration of constitutional invalidity — Statutory provisions discriminating one class of belonger in favour of another — Right to own land — Right to control local companies and benefit from local trusts

JUDGMENT of Kawaley CJ

Introductory

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

2. 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.

3. 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.

4. 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

5. 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…”

6. 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

7. 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.

8. 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

9. 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 Constitution1, which includes, in brief, a citizen of the United Kingdom who has been naturalized as a citizen of the United Kingdom in respect of Bermuda2.

10. 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.”

11. 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…”

12. It is noteworthy that the business, profession and residence rights are, on their face, to be enjoyed equally by persons who do “belong 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.

13. 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...