Williams v Minister for Home Affairs and Attorney General

• Jurisdiction: Bermuda
• Judgment Date: 15 July 2015
• Date: 15 July 2015
• Docket Number: Civil Jurisdiction 2015 No 127
• Court: Supreme Court (Bermuda)

[2015] Bda LR 67

In The Supreme Court of Bermuda

Civil Jurisdiction 2015 No 127

In the matter of the Bermuda Constitution

Between:

MELVERN WILLIAMS

Applicant

and

MINISTER FOR HOME AFFAIRS

ATTORNEY GENERAL

Respondent

Mr P Sanderson for the Applicant

Mr P Perinchief for the Respondent

The following cases were referred to in the judgment:

Minister of Home Affairs v FisherELR [1980] AC 319

Minister of Home Affairs v Carne and CorreiaBDLR [2014] Bda LR 47

Attorney General v Grape Bay LtdBDLR [1998] Bda LR 6

Nagle v Feilden and OthersUNK [1966] 1 All ER 689

The Case of the Tailors &c of IpswichENR (1572-1616) 11 Co Rep 53

Salem v Chief Immigration Officer of Zimbabwe 195 (4) SA 280

Thompson v Bermuda Dental Board (Human Rights Commissioners Intervening)UNK [2009] 2 LRC 310

Bohn v Republic of VanuatuUNK [2013] 5 LRC 211

Commercial Farmers Union v Minister of Lands, Agriculture and ResettlementUNK [2001] 2 LRC 521

Innis v Attorney GeneralUNK [2009] 2 LRC 546

Attride-Stirling v Attorney-GeneralBDLR [1995] Bda LR 6

Application for declaration that a work permit is not required — Compensation for loss and interference with constitutional rights — Discrimination on the grounds of place of origin — Meaning of ‘belonging to Bermuda’— Freedom of movement — Right to work - Damages

EX TEMPORE JUDGMENT of KAWALEY CJ

Introductory

1. The Applicant in this case by an Originating Summons issued on March 25, 2015 seeks a declaration that, as a person who belongs to Bermuda pursuant to s.11(5) of the Bermuda Constitution ‘he does not require the specific permission of the Minister to engage in employment or business’.

2. In addition, the Applicant seeks compensation for loss and damage for interference with his constitutional rights which are particularised in his Originating Summons as follows:

‘(1) The Plaintiff earned approximately $6,200 per month in his job at D & J Construction and seeks damages for loss of earnings in the amount of $6,200 per month from the 13 March and interest thereon until the date of judgment;

(2) The Plaintiff… seek[s] constitutional damages for the anxiety, stress and hardship caused by the discriminatory interference with his constitutional rights…’

3. The application is supported by the First Affidavit of the Applicant who deposes most significantly as follows. He exhibits a Certificate of Naturalisation as a British Overseas Territories Citizen indicating that he is of Jamaican birth and also indicating that on the 16th December 2014 the Governor issued the relevant Certificate. He also deposes that on the 13th March 2015 he was terminated from his employment ‘on the grounds that the Department of Immigration (for which the 1st Defendant has ministerial oversight) had notified them that my employment must cease immediately’. He exhibits a copy of the relevant termination letter.

The constitutional provisions

4. The application is ultimately based on an analysis of a few discrete provisions of the Bermuda Constitution. Most significantly it is common ground that section 11(5) is a pivotal provision in terms of providing the central underpinning of the Applicant's case. Section 11 (5) provides:

‘(5) For the purposes of this section, a person shall be deemed to belong to Bermuda if that person-

(a) possesses Bermudian status;

(b) is a citizen of the United Kingdom and Colonies by virtue of the grant by the Governor of a certificate of naturalisation under the British Nationality and Status of Aliens Act 1914;

(c) is the wife of a person to whom either of the foregoing paragraphs of this subsection applies not living apart from such person under a decree of a court or a deed of separation; or

(d) is under the age of eighteen years and is the child, stepchild or child adopted in a manner recognised by law of a person to whom any of the foregoing paragraphs of this subsection applies.’

5. The next provision which is of significance, having regard to the way in which the Applicant's case was advanced, is 12 of the Constitution which provides, so far is relevant for present purposes, as follows:

‘(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.

(2) Subject to the provisions of subsections (6), (8) and (9) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.

(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.

(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…’

The offending provisions of the Bermuda Immigration and Protection Act 1956

6. The Applicant submits that the effect of these provisions read in the way that fundamental rights and freedoms provisions are meant to be read, in a broad purposive manner, is to very clearly indicate that the following provisions of the Bermuda Immigration and Protection Act 1956 are in violation of his constitutional rights. Section 60 of the Act provides as follows:

‘60. (1) Without prejudice to anything in sections 61 to 68, no person-

(a) other than a person who for the time being possesses Bermudian status; or

(b) other than a person who for the time being is a special category person; or

(c) other than a person who for the time being has spouse's employment rights; or

(cc) other than a permanent resident; or

(d) other than a person in respect of whom the requirements of subsection (6)1 are satisfied,

shall, while in Bermuda, engage in any gainful occupation without the specific permission (with or without the imposition of conditions or limitations) by or on behalf of the Minister.’

7. It is submitted on behalf of the Respondents that although the quoted provisions of section 60(1) clearly exclude the Applicant from the exemption from the need to seek employment permission, despite the fact that he is somebody who appears on the face of it to fall within the provisions of those persons who belong to Bermuda under section 11(5) of the Constitution, the Minister and/or the Bermuda Legislature have the constitutional authority to regulate employment in Bermuda in the manner reflected in the current law.

The Applicant's Case

Freedom of movement

8. The Applicant's counsel, Mr Sanderson, relied on a number of authorities in addition to the plain words of the Constitution itself to fortify his application. Firstly, it is I think helpful to refer to the Fisher case which is still, 35 years later, one of the leading Commonwealth authorities on the approach to be followed in interpreting fundamental rights and freedoms provisions in Commonwealth constitutions. This case, reported as Minister of Home Affairs v FisherELR[1980] AC319, the judgment of the Board being delivered by Lord Wilberforce, contains the following statement which has been followed by numerous subsequent courts (at 328):

‘Chapter I is headed ‘Protection of Fundamental Rights and Freedoms of the Individual.’ It is known that this chapter. as similar portions of other constitutional instruments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the Constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). That Convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda. It was in turn influenced by the United Nations” Universal Declaration of Human Rights of 1948. These antecedents, and the form of Chapter I itself, call for a generous interpretation avoiding what has been called “the austerity of tabulated legalism,” suitable to give to individuals the full measure of the fundamental rights and freedoms referred to…’

9. That was a case, coincidentally, which concerned section 11 of the Constitution as well. And the Privy Council, upholding the Bermuda Court of Appeal, that the word ‘child’ in section 11(5) of the Constitution should be given a broad interpretation so as to include children born out of wedlock as well as children born in wedlock. The essence of the Applicant's case is that the relevant provisions of section 11 of the Bermuda Constitution do not just provide a right to freely move about Bermuda or reside in Bermuda but also, by necessary implication, incorporates the right to unrestricted work as well.

10. Another case which perhaps can be looked at briefly at the outset is Minister of Home AffairsvCarne and CorreiaBDLR[2014] Bda LR 47. Mr Sanderson relied in particular on the following passage from my own Judgment in...