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Chief Justice reaffirms role of Parliament

Results matter, of course, but so, too, do the reasons that leads to those results. This is particularly true of decisions of the court. They ought not to be overlooked; and while not everyone is an attorney with the time and the inclination to pore over lengthy judgments, pronouncements of the bench are often worth a deeper, second look.

Chief Justice Narinder Hargun (File photograph by Akil Simmons)

A judge’s analysis — and comments — may well serve as useful guidance on how the court might respond in future cases.

A case in point was that of the unsuccessful challenge of the Corporation of Hamilton on the Government’s legislative plan to overhaul the municipalities — and the decision of Chief Justice Narinder Hargun.

First, there was in his ruling clear reaffirmation under the Bermuda Constitution Order 1968 of:

1, The right of any person or body to challenge any law that they regard as an infringement of any fundamental right or freedom

2, The right of the Supreme Court to strike down or modify the law in question to the extent that it infringes the rights or freedoms under challenge

But secondly, and arguably most interesting — not to mention illuminating and instructive — were some of the comments the Chief Justice made on the respective roles of the legislature and the judiciary specifically, as well as generally on matters of governance.

They are worth highlighting here and the following is my take on what the CJ had to say:

• Notwithstanding that the proposed legislation had prompted highly charged and emotive debate, the legislature is the body that has been charged with the responsibility for considering, debating and adopting laws, not the courts

• In fact, courts will traditionally refrain from expressing an opinion on the wisdom of a particular piece of legislation, in accordance with a longstanding principle of judicial self-restraint

• It is the duty of the courts to administer, interpret and apply laws, and not to question them, except — and this is the important exception — to the extent that may be necessary to give effect to constitutionally protected freedoms and rights

This then was the starting point for the Chief Justice’s decision. He went on to elaborate further:

• Beyond considering whether proposed legislation is a breach of the Bermuda Constitution Order, the court will not concern itself with such issues as whether any proposed legislation is arbitrary or an unfair exercise of power

• The court cannot set aside legislation passed by the legislature, and subsequently assented to by the Governor, on the grounds that the complainant — or even the court itself — considers that there was inadequate consultation

• Indeed, there is no duty of consultation and, in any event, the legislature is not required to be fair. There may be an exception, though: where legislation under which regulations have been made expressly requires prior consultation and, further, set out a means by which consultation was to occur, but did not (my opinion)

• But the overriding principle is one well known to all of us: Parliament is supreme and the vehicle by which we give voice and consideration to conflicting and different views

• Further, Parliament establishes the procedure and rules by which it will govern itself and resolve those differences. The Speaker is in charge and their decisions are final. There is no appeal. MPs can take up their complaints in meetings of the rules committee — typically held behind closed doors — and/or they take the matter up by motion on the floor of the House.

One query arises here in Bermuda, though, on the principle of the supremacy of Parliament.

Which Parliament?

There is no reference to “Parliament” in the body of the Bermuda Constitution Order 1968. Instead we have a legislature, the definition of which includes a reference to the Crown: “There shall be a Legislature in Bermuda which shall consist of Her Majesty, a Senate and a House of Assembly”. (Emphasis mine)

I would note, too, that the Bermuda Constitution Order itself happens to be an Act of the British Parliament: “made by Her Majesty in Council under the Bermuda Constitution Act 1967 of the United Kingdom”.

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Published May 11, 2021 at 1:13 pm (Updated May 11, 2021 at 2:07 pm)

Chief Justice reaffirms role of Parliament

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