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Political speech will not be hindered by Corporation abolition, court told

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City Hall: home to the Corporation of Hamilton. (File photograph)

No evidence that political speech would be stifled by legislation designed to replace elected officials in the municipalities with appointed quango members has been presented, the court of Appeal has been told.

Delroy Duncan, the counsel for the Attorney-General, said the Corporation of Hamilton had not shown that the voices of city residents would be silenced if it was replaced.

He was speaking after the Corporation suggested the Municipal Reform Act would hinder political speech by ending municipal elections.

But Mr Duncan said: “Nobody whose opinions are purportedly stifled is complaining before the court.”

He added that the Corporation did not have the right to bring the complaint on behalf of its rate payers and there was nothing to suggest that the move was motivated by a desire to “stifle dissent”, as suggested by the Corporation.

Mr Duncan said the argument – which was not made before the Supreme Court – should not be allowed to continue as framed.

He said: “Right now we have no evidence of anybody being hindered.

“The way this case would normally be brought is they would produce some evidence of a hindrance and they would say their rights had been hindered.

“Then we would be able to reply with evidence with respect to if the measures were reasonably required.”

He added: “Bringing this ground now through the back door compromises the way that the evidence would usually be adduced.

“That is a totally unfair way to approach this new ground of appeal.”

The legislation was approved by the House of Assembly but rejected by the Senate.

The Upper House, however, can only delay legislation, not halt it.

The Corporation launched a legal action against the Government and asked for a ruling that the legislation was unconstitutional.

The Supreme Court rejected the Corporation’s argument but the municipality took the fight to the Court of Appeal.

Sir Jeffrey Jowell, the counsel for the Corporation argued on Tuesday that the legislation would deprive the Corporation of property and damage freedom of political speech because elections would cease.

The minister would appoint the mayors of the two municipalities under the legislation and half of the councillors.

The rest of the councillors would be appointed by the minister on the recommendation of a selection committee – also appointed by the minister.

Mr Duncan said Chief Justice Narinder Hargun was correct when he found that the changes were not unconstitutional.

He added the Corporation was trying to “draw crooked lines straight” with their interpretation of the law and the Bermuda Constitution.

He said that Section 1 of the Bermuda Constitution Order said there was protection from deprivation of property, but the courts had ruled that it was a “preamble” and not independently enforceable.

Mr Duncan added that Section 13 of the Constitution protected against compulsory acquisition, but the Corporation could not rely on it because the section covered the “taking” of property rather than “depriving” an owner of property.

He argued that the amendments would not result in the loss of property to the Corporation.

Mr Duncan said: “In this case, the property still rests with the Corporation. They are still owners of the property.

“It may be that they act on the direction of the Government, but they still own the property.”

Mr Duncan added that it would be “speculative” to assume the Government would later try to claim any of the Corporation’s property.

He said that the Corporation would not be deprived of the ability to make decisions about its holdings – although they would be required to consult the Government.

The Corporation of Hamilton asked the Supreme Court earlier this year to find that the legislation was unconstitutional because it would grant government “overwhelming” control over the municipalities and their properties.

But the Government argued that the municipalities would retain control of their properties as quangos and the legislation would improve co-operation between the corporations and the Government.

Mr Justice Hargun ruled in April that Government management control over the Corporation would not amount to deprivation of property and the corporation’s constitutional claim could not succeed.

He added: “Beyond that, the merits of any legislation belonging to the realms of politics are not the proper subject matter of judicial determinations.”

The hearing continues.

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