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That which the legislature giveth, it can taketh away

Recent events here and elsewhere appear to be prompting doubts about the efficacy of democracy. This, in turn, prompted me to remember what Sir Winston Churchill is recorded as having once famously said about democracy at or about the time of the Second World War: democracy may well be the worst form of Government … except for all the others that have been tried from time to time. I tend to agree.

But no question that democracies are not perfect. There is always much work to be done to make any democratic government work, and to make it work better. It takes hard work, commitment and then more hard work.

The point was underscored for me in the recent decisions of the Privy Council in London and our own Court of Appeal here in Bermuda: the first on the contentious issue of same-sex marriage and the latter on contested municipality reform. The Bermuda Constitution Order 1968 featured in both, and in each case the bench had a fair bit to say about our system of government.

The comments were more than just interesting. They were instructive; plus they provide some insight into how our courts are likely to approach future constitutional challenges, particularly those where government legislation is the subject of review and appeal.

The comments also serve as a reminder of what we have here in Bermuda — and on what we need to work to improve.

Herewith, my best short summary of what the two courts had to say, starting first with the decision of the Privy Council. Some may find it surprising; eye-opening, even:

• All legislation represents the expressed will of the legislature. The legislature need not give reasons for enacting legislation. It simply votes up or down proposed legislation as drafted

• Members are not required to give reasons why they voted for or against or why they abstained. Any statements made in support are nothing more than opinions

• Moreover, the way Members vote is usually, but maybe not always, a reflection of party policy, influenced by the discipline imposed by party whips

• It is therefore the actual text of the legislation on which courts will render a decision

• The legislature exists to manage political disagreements to come to a solution, either through negotiation or compromise or both — all of which is achieved through the use of political power derived from democratic elections; the legitimacy of which is accepted precisely because of the democratic credentials of those who make the decisions; ie, they won the last election

• Courts must therefore be careful not to undermine the legislature’s performance of its functions by employing judicial standards, and, in this regard, the judicial model of rational analysis is not suitable for resolving differences of political opinion. Accordingly therefore, “an insistence on transparent and rational analysis would be liable to make the political process of resolving differences through negotiation, compromise and the exercise of democratic power that much more difficult and less likely to succeed”

In view of the above, it is perhaps not so surprising that a majority of the Law Lords upheld the appeal, concluding that the Domestic Partnership Act, including the challenged provision of same-sex marriage “was enacted to bring an end to a dispute between different groups in Bermudian society, and to give effect to an election promise”.

That is the raw political reality of a democracy.

Dissenting voice: Lord Sales was the lone judge on the Privy Council who did not side with the Bermuda Government’s stance on same-sex marriage

On the other hand, Lord Sales, in dissent, fastened on the obvious in his reasoning. He emphasised the importance of fundamental rights and the need for protection for “unpopular minorities” from what is loosely termed the tyranny of the majority. The protection of those rights is the role the courts are meant to play in a constitutional democracy. Therefore, in his words, “[it] makes sense to take such matters off the table so far as concerns politics and majoritarian processes of resolution”.

Of course, a court’s task is made that much easier when those fundamental rights are explicitly spelt out and embedded in any constitution.

The Court of Appeal decision was equally instructive — and again maybe not so surprising.

First, it was decided that the matter of constituting municipal authorities is a matter for the legislature “untouched by the Constitution”. Second, where that body is a creature of public statute it is again a matter for the legislature whether to change or abolish that body.

In short, that which the legislature gives, it can take away.

It very much sounds like the adage: Parliament is supreme — well, up to a point, in Bermuda. It has to be remembered that our legislature is also a creature of statute, governed by the Bermuda Constitution Order 1968, which was made pursuant to the Bermuda Constitution Act 1967 of the United Kingdom.

But it could be, if the past is any guide, that any further amendments to the Bermuda Constitution Order by Britain would have to reflect the expressed will of the people … the people of Bermuda.

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Published April 05, 2022 at 7:45 am (Updated April 05, 2022 at 8:27 am)

That which the legislature giveth, it can taketh away

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