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Chief Justice explains referendum ruling

Chief Justice Ian Kawaley (Photo by Akil Simmons)

Chief Justice Ian Kawaley has released a full judgment explaining why he didn’t stop the referendum on same-sex relationships from going ahead despite it being held in a “somewhat shabby and shambolic fashion”.

The 44-page verdict expands on Mr Justice Kawaley’s reasons for rejecting a legal bid by the Centre for Justice to stop the June 23 referendum or postpone it to a later date.

He wrote that the referendum could be held without offending the Constitution or the Human Rights Act and though it would “likely interfere with some freedom of expression and freedom of association rights” it was not to the extent that merited stopping it from happening altogether. “In the context of deciding whether the referendum . . . should or should not be restrained, the rule of law, in fact, required the court to respect the fact that political judgments are for politicians, not judges, to make,” he said.

“There is room for judicial activism when entertaining applications to enforce statutory human rights. There is a need for judicial restraint when courts are invited to thwart the lawfully articulated will of Parliament.”

He added it would be inconsistent with established principles governing the relationship between the judiciary and the legislature for the “judiciary to trespass on the proper domain of the executive and judicial branches of government”; to do so, he said, would be unconstitutional.

Elsewhere in the judgment, the Chief Justice said the application for judicial review by the Centre of Justice “raised complicated issues of considerable public importance which were argued and decided within a necessarily compressed timeframe”.

The referendum asked voters if they were in favour of same-sex marriage and if they were in favour of same-sex civil unions. The turnout for the non-binding ballot was 46.89 per cent and, of those who voted, 69 per cent were against same-sex marriage and 63 per cent were against civil unions.

Mr Justice Kawaley described the referendum as being “organised in a somewhat shabby and shambolic fashion with little or no apparent regard for good referendum practice” and suggested the Premier should have set up a committee to oversee how it was run.

But in relation to the Centre’s claim that it was “repugnant to certain fundamental rights of individuals at common law,” he concluded there was no reason for the courts to intervene to stop it. “Bermuda’s Parliament is competent to override common law rights by clearly drafted legislation, subject to three important caveats,” he wrote.

The caveats, he said, were that Parliament’s law making powers were subject to the Constitution, could not be exercised in a way which conflicted with any UK laws which extend to Bermuda and “cannot effectively be exercised in a way with conflicts with the Human Rights Act 1981, unless Parliament expressly provides that the relevant law is not subject to the primacy provisions of the 1981 Act”.

He said it was open to any interested party to challenge the referendum results.

The judgment refers to an earlier observation made by the Chief Justice that “Bermuda appears to be under a positive international law duty under article of the ECHR (European Convention on Human Rights) to create some coherent legal framework for the recognition of same-sex relationships formed by Bermudians”.

Mr Justice Kawaley said those observations formed no part of his decision in the Bermuda Bred Company case, in which he ordered that same-sex partners of Bermudians be given the same immigration and employment rights as heterosexual spouses, and which was “solely concerned with the Bermuda domestic law position”.