Bermuda Constitution Order 1968

Citation and Commencement

1 (1) This Order may be cited as the Bermuda Constitution Order 1968.

(2) This Order shall come into force on 21st February 1968.

[but 2 June 1968 is the "appointed day"]

Interpretation

2 (1) In this Order—

"the Constitution" means the Constitution of Bermuda set out in Schedule 2 to this Order;

"the appointed day" means such day after the return of the writs of election in the general election referred to in section 7 of this Order as may be appointed by the Governor by procla mation published in the Gazette;

[2 June 1968 was appointed by proclamation of the Governor SR&O 55/1968]

"the existing instruments" means the instruments revoked by section 3 of this Order;

"the existing laws" means any laws (including Resolves) made before the appointed day by any legislature for the time being constituted as the legislature of Bermuda and having effect as part of the law of Bermuda immediately before the appointed day [2 June 1968] (whether or not they have then come into operation) and any rules, regulations, orders or other instruments made in pursuance of such laws and having such effect.

(2) The provisions of sections 102, 103 and 108 of the Con stitution shall apply for the purposes of interpreting sections 1 to 10 of this Order and otherwise in relation thereto as they apply for the purpose of interpreting and in relation to the Constitution.

Revocations

3 The instruments set out in Schedule 1 to this Order are revoked with effect from the appointed day [2 June 1968].

Establishment of Constitution

4 Subject to the provisions of this Order the Constitution shall come into operation on the appointed day [2 June 1968].

Existing laws

5 (1) Subject to the provisions of this section, the existing laws shall have effect on and after the appointed day [2 June 1968] as if they had been made in pursuance of the Constitution and shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution.

(2) The Governor may, by order published in the Gazette, at any time within twelve months after the commencement of this Order make such amendments in any existing law as may appear to him to be necessary or expedient for bringing that law into conformity with the

provisions of the Constitution or otherwise for giving effect, or enabling effect to be given, to those provisions; and any existing law shall have effect accordingly from such date (not being earlier than the appointed day) as may be specified in the order.

(3) An order made under this section may be amended or re voked by the Legislature or, in relation to any existing law affected thereby, by any other authority having power to amend, repeal or revoke that existing law.

(4) Where any matter that falls to be prescribed or otherwise provided for the purposes of the Constitution by the Legislature or by any other person or authority is prescribed or provided for by or under any existing law (including any amendment of any such law made under this section) or is otherwise prescribed or provided for, immediately be fore the appointed day, by or under the existing instruments, that pre scription or provision shall, as from the appointed day, have effect as if it had been made for those purposes by the Legislature or, as the case may be, by the other person or authority.

(5) The provisions of this section shall be without prejudice to any powers conferred by the Constitution or any other law upon any per son or authority to make provision for any matter, including the amend ment or repeal of any existing law.

(6) For the avoidance of doubts it is hereby declared that nothing in section 55 of the Constitution shall affect any register of elec tors subsisting under any existing law immediately before construed as applying in relation to any subsequent revision of any such register.

Existing officers

6 (1) Any person who, immediately before the appointed day [2 June 1968] holds or is acting in any office to which this section applies shall be deemed as from that day to have been appointed to or to act in that office or the corresponding office in accordance with the provisions of the Con stitution and to have made any necessary oaths or affirmation under the Constitution:

Provided that any person who under the existing instruments or any existing law would have been required to his office at the expiration of any period or on the attainment of any age shall vacate his office at the expiration of that period or on the attainment of that age.

(2) This section applies to the offices of the Governor, judges of the Supreme Court and the Court of Appeal and the personal staff of the Governor and to any public office.

(3) The provisions of this section shall be without prejudice to the power of any person or authority to abolish any office or to remove from office any person holding or acting in any office.

Holding of general election prior to the appointed day

7 [omitted]

First appointment of Secretary to Executive Council

7A [omitted]

Rules of procedure of Legislative Council and House of Assembly

8 [transitional] [omitted]

Legal proceedings

9 [transitional] [omitted]

Regulations for retirement, compensation, etc. of certain officers

10 [transitional] [omitted]

SCHEDULE 1 TO THE ORDER

INSTRUMENTS REVOKED

Letters Patent, dated 19th January 1888, passed under the Great Seal of the United Kingdom, constituting the office of Governor and Comman der-in-Chief of the Bermudas or Somers Islands [Rev.III, p. 119].

The Bermuda (Amendment) Letters Patent 1953 [S.I. 1953 II, p. 2777].

The Bermuda (Amendment) Letters Patent 1955 [S.I. 1955 II, p. 3179].

The Bermuda Letters Patent 1962 [S.I. 1962 I, p.1025].

Instructions issued under the Royal Sign Manual and Signet to the Gov ernor and Commander-in-Chief of the Bermudas or Somers Islands on 25th November 1915.

Additional Instructions issued as aforesaid on 9th June 1930.

Additional Instructions issued as aforesaid on 30th August 1943.

Additional Instructions issued as aforesaid on 16th May 1953.

CHAPTER I
PROTECTION OF FUNDAMEN TAL RIGHTS AND FREE DOMS OF THE INDIVID UAL

1 Fundamental rights and freedoms of the individual

2 Protection of right to life

3 Protection from inhuman treatment

4 Protection from slavery and forced labour

5 Protection from arbitrary arrest or detention

6 Provisions to secure pro tection of law

7 Protection for privacy of home and other property

8 Protection of freedom of conscience

9 Protection of freedom of expression

10 Protection of freedom of assembly and association

11 Protection of freedom of movement

12 Protection from discrimi nation on the grounds of race, etc

13 Protection from depriva tion of property

14 Provisions for time of war or emergency

15 Enforcement of funda mental rights

16 Interpretation

CHAPTER II
THE GOVERNOR

17 The Governor

18 Office of Deputy Governor

19 Acting Governor

19A Functions of Deputy Gov ernor

20 Personal staff and expen diture of the Governor

21 Exercise of Governor's functions

22 Powers of pardon, etc

23 Establishment and proce dure of Advisory Commit tee

24 Powers to dispose of land

25 Powers to constitute of fices and make appoint ments, etc

CHAPTER III
THE LEGISLATURE

Composition

26 Legislature of Bermuda

27 Composition of Senate

28 Composition of House of Assembly

29 Qualifications for mem bership of Senate and House of Assembly

30 Disqualifications for membership of Senate and House of Assembly

31 Tenure of seats of mem bers of Senate and House of Assembly

32 President and Vice-Presi dent of Senate and Speaker and Deputy Speaker of House of As sembly

33 Determination of ques tions of membership of Senate and House of As sembly

Powers and Procedure

34 Power to make laws

35 Mode of exercise of power to make laws

36 Restrictions with regard to certain financial mea sures

37 Restriction on powers of Senate as to money bills which are not taxation bills

38 Restriction on powers of Senate as to other public bills

39 Provisions relating to sec tions 36, 37 and 38

40 Oath of allegiance

41 Validity of proceedings

42 Presiding in the Senate and House of Assembly

43 Quorum

44 Voting

45 Rules of procedure

46 Privileges of Houses

47 Power of disallowance in respect of laws relating to Government stock

48 Sessions of the Legisla ture

49 Prorogation and dissolu tion of the Legislature

50 Recalling dissolved Legis lature in case of emer gency

51 General elections, bye-elections and appoint ments to Senate

Constituencies and the Fran chise

52 Division of parishes of Bermuda into two-mem ber constituencies

53 Constituency Boundaries Commission

54 Review and alteration of constituency boundaries

55 Qualifications and dis qualifications of electors

CHAPTER IV
THE EXECUTIVE

56 Executive authority

57 The Cabinet

58 Appointment of Premier and other Ministers

59 Tenure of office of Premier and other Ministers

60 Performance of functions of Premier in certain events

60A Performance of functions of other Ministers in cer tain events

61 Allocation of portfolios to Ministers

62 Governor's special re-sponsibilities

63 Parliamentary Secretaries

64 Restriction on appoint ments from House of As sembly

65 Summoning of Cabinet

66 Proceedings in Cabinet

67 Summoning of persons to Cabinet

68 Oaths

69 Secretary to Cabinet

70 Governor's Council

71 Attorney-General

71A Director of Public Prose cutions

72 Opposition Leader

CHAPTER V
THE JUDICIARY

The Supreme Court

73 Constitution of Supreme Court

74 Tenure of office of judges of Supreme Court

75 Acting judges of Supreme Court

76 Oaths to be taken by judges of Supreme Court

The Court of Appeal

77 Constitution of Court of Appeal

78 Tenure of office of judges of Court of Appeal

79 Acting judges of Court of Appeal

80 Oaths to be taken by judges of Court of Appeal

CHAPTER VI
THE PUBLIC SERVICE

General

81 Public Service Commis sion.

82 Appointment, etc., of public officers

83 Delegation of Governor's power

84 Performance of functions of Public Service Commis sion

Particular Offices

85 [omitted]

86 Appointment, etc., of At torney-General

87 Appointment, etc., of Commissioner and Deputy Commissioner of Police

88 Appointment, etc., of the Auditor

89 Appointment, etc., of magistrates and other legally qualified staff of the courts

90 Appointment of Secretary to Cabinet

Pensions

91 Applicability of pensions law

92 Pensions, etc., charged on the Consolidated Fund

93 Grant and withholding of pensions, etc

CHAPTER VII
FINANCE

94 Consolidated Fund

95 Withdrawal of money from the Consolidated Fund or other public funds

96 Authorisation of expen diture

97 Authorisation of expen diture in advance of ap propriation

98 Contingencies fund

99 Public debt

100 Remuneration of certain officers

101 The Auditor

CHAPTER VIII
MISCELLANEOUS

102 Interpretation

103 References to public of fices

104 Appointments

105 Removal from office

106 Resignations

107 Saving for jurisdiction of courts

108 Power to amend and re voke instruments, etc

THE SCHEDULE TO THE CONSTITUTION OF BERMUDA

Forms of Oaths and Affirmations

the subsequent provisions of this Chapter shall have effect for the pur pose of affording protection to the aforesaid rights and freedoms subject to such limitations of that protection as are contained in those provi sions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

Protection of right to life

2 (1) No person shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted.

(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable—

(a) for the defence of any person from violence or for the defence of property;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(d) in order to prevent the commission by that person of a criminal offence,

or if he dies as a result of a lawful act of war.

Protection from inhuman treatment

3 (1) No person shall be subjected to torture or to inhuman or degrading treatment or punishment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any de scription of punishment that was lawful in Bermuda immediately before the coming into operation of this Constitution [2 June 1968].

Protection from slavery and forced labour

4 (1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour.

(3) For the purposes of this section, "forced labour" does not include—

(a) any labour required in consequence of the sentence or order of a court;

(b) any labour required of a member of a disciplined force in pursuance of his duties as such or, in the case of a per son who has conscientious objections to service in a naval, military or air force, any labour that that person is required by law to perform in place of such service;

(c) labour required of any person while he is lawfully de tained that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place in which he is detained; or

(d) any labour required during a period of public emergency (that is to say, a period to which section 14 of this Con stitution applies) or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of such labour is reasonably justifiable, in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the pur pose of dealing with that situation.

Protection from arbitrary arrest or detention

5 (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases:

(a) in execution of the sentence or order of a court, whether established for Bermuda or some other country, in re spect of a criminal offence of which he has been con victed or in consequence of his unfitness to plead to a criminal charge;

(b) in execution of the order of a court punishing him for contempt of that court or of another court or tribunal;

(c) in execution of the order of a court made in order to se cure the fulfilment of any obligation imposed upon him by law;

(d) for the purpose of bringing him before a court in execu-

tion of the order of a court;

(e) upon reasonable suspicion that he has committed, is committing, or is about to commit, a criminal offence;

(f) in the case of a person who has not attained the age of twenty-one years, under the order of a court or with the consent of his parent or guardian, for the purpose of his education or welfare;

(g) for the purpose of preventing the spread of an infectious or contagious disease or in the case of a person who is, or is reasonably suspected to be, of unsound mind, ad dicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the commu nity;

(h) for the purpose of preventing the unlawful entry of that person into Bermuda or for the purpose of effecting the expulsion, extradition or other lawful removal from Bermuda of that person or the taking of proceedings re lating thereto.

(2) Any person who is arrested or detained shall be informed as soon as is reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.

(3) Any person who is arrested or detained in such a case as is mentioned in subsection (1)(d) or (e) of this section and who is not re leased shall be brought without undue delay before a court; and if any person arrested or detained in such a case as is mentioned in the said paragraph (e) is not tried within a reasonable time he shall (without prej udice to any further proceedings that may be brought against him) be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

(4) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person.

(5) Any person who is arrested shall be entitled to be informed, as soon as he is brought to a police station or other place of custody, of his rights as defined by a law enacted by the Legislature to remain silent, to seek legal advice, and to have one person informed by telephone of his arrest and of his whereabouts.

Provisions to secure protection of law

6 (1) If any person is charged with a criminal offence, then, un less the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court estab lished by law.

(2) Every person who is charged with a criminal offence—

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the na ture of the offence charged;

(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice or, where so provided by any law, by a legal representative at the public expense;

(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecu tion before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution;

(f) shall be permitted to have without payment the assis tance of an interpreter if he cannot understand the lan guage used at the trial of the charge; and

(g) shall, when charged on information or indictment in the Supreme Court, have the right to trial by jury,

and, except with his own consent, the trial shall not take place his ab sence, unless he so conducts himself in the court as to render the con tinuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.

(3) When a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall, if he so re quires and subject to payment of such reasonable fee as may be pre scribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings

made by or on behalf of the court.

(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maxi mum penalty that might have been imposed for that offence at the time when it was committed.

(5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the or der of a superior court in the course of appeal or review proceedings re lating to the conviction or acquittal.

(6) No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.

(7) No person who is tried for a criminal offence shall be com pelled to give evidence at the trial.

(8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obli gation shall be established by law and shall be independent and impar tial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.

(9) All proceedings instituted in any court for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public.

(10) Nothing in subsection (9) of this section shall prevent the court from excluding from the proceedings persons other than the par ties thereto and their legal representatives to such extent as the court—

(a) may be empowered by law so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocu tory proceedings or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or

(b) may be empowered or required by law to do so in the interests of defence, public safety or public order.

(11) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of—

(a) subsection (2)(a) of this section to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;

(b) subsection (2)(e) of this section to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused per son are to be paid their expenses out of public funds;

(c) subsection (5) of this section to the extent that the law in question authorises a court to try a member of a disci plined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under that disciplinary law.

(12) In this section, "legal representative" means a person enti tled to practise in Bermuda as a barrister and attorney of the Supreme Court.

Protection for privacy of home and other property

7 (1) Except with his consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

(a) that is reasonably required—

(i) in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development of mineral resources, or the development or utilisation of any other property in such a manner as to pro mote the public benefit; or

(ii) for the purpose of protecting the rights and free doms of other persons;

(b) to enable an officer or agent of the Government, a local government authority or a body corporate established by law for a public purpose to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or due or in or der to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or that authority or body corporate, as the case may be; or

(c) to authorise, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or the entry upon any premises by such order,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably jus tifiable in a democratic society.

Protection of freedom of conscience

8 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this sec tion the said freedom includes freedom of thought and of religion, free dom to change his religion or belief and freedom, either alone or in com munity with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and obser vance.

(2) Except with his consent (or, if he is a person who has not attained the age of twenty-one years, the consent of his guardian) no person attending any place of education shall be required to receive reli gious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a reli gion other than his own.

(3) No religious community or denomination shall be prevented from or hindered in providing religious instruction for persons of that community or denomination in the course of any education provided by that community or denomination whether or not that community or de nomination is in receipt of any government subsidy, grant or other form of financial assistance designed to meet, in whole or in part, the cost of such course of education.

(4) No person shall be compelled to take any oath which is contrary to his religion or belief or to take any oath in a manner which is contrary to his religion or belief.

(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required—

(a) in the interests of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and prac tise any religion or belief without the unsolicited inter ference of persons professing any other religion or belief,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

Protection of freedom of expression

9 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this sec tion the said freedom includes freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

(a) that is reasonably required—

(i) in the interests of defence, public safety, public order, public morality or public health; or

(ii) for the purpose of protecting the rights, reputa tions and freedom of other persons or the pri vate lives of persons concerned in legal pro ceedings, preventing the disclosure of informa tion received in confidence, maintaining the authority and independence of the courts, regu lating telephony, telegraphy, posts, wireless broadcasting, television or other means of com munication or regulating public exhibitions or public entertainments; or

(b) that imposes restrictions upon public officers or teach -

ers,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

(3) For the purposes of paragraph (b) of subsection (2) of this section in so far as that paragraph relates to public officers, "law" in that subsection includes directions in writing regarding the conduct of public officers generally or any class of public officer issued by the Government.

Protection of freedom of assembly and associ ation

10 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

(a) that is reasonably required—

(i) in the interests of defence, public safety, public order, public morality or public health;

(ii) for the purpose of protecting the rights and free doms of other persons; or

(b) that imposes restrictions upon public officers,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be rea sonably justifiable in a democratic society.

(3) For the purposes of paragraph (b) of subsection (2) of this section, "law" in that subsection includes directions in writing regarding the conduct of public officers generally or any class of public officer is sued by the Government.

Protection of freedom of movement

11 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of movement, that is to say, the right to move freely throughout Bermuda, the right to reside in any part thereof, the right to enter Bermuda and immunity from expulsion therefrom.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

(a) for the imposition of restrictions on the movement or residence in Bermuda or on the right to leave Bermuda of persons generally or any class of persons that are rea sonably required—

(i) in the interests of defence, public safety, public order, public morality or public health; or

(ii) for the purpose of protecting the rights an free doms of other persons,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society;

(b) for the removal of a person from Bermuda to be tried or punished in some other country for a criminal offence under the law of that country or to undergo imprison ment in some other country in execution of the sentence of a court in respect of a criminal offence under the law of Bermuda of which he has been convicted;

(c) for the imposition of restrictions on the movement or residence within Bermuda or the right to leave Bermuda of public officers that are reasonably required for the purpose of ensuring the proper performance of their functions;

(d) for the imposition of restrictions on the movement or residence within Bermuda of any person who does not belong to Bermuda or the exclusion or expulsion there from of any such person;

(e) for the imposition of restrictions on the acquisition or use by any person of land or other property in Bermuda;

(f) for the imposition of restrictions, by order of a court, on the movement or residence within Bermuda of any per son or on any person's right to leave Bermuda either in consequence of his having been found guilty of a crimi nal offence under the law of Bermuda or for the purpose
of ensuring that he appears before a court at a later date for trial of such a criminal offence or for proceedings preliminary to trial or for proceedings relating to his ex tradition or lawful removal from Bermuda; or

(g) for the imposition of restrictions on the right of any per son to leave Bermuda that are reasonably required in order to secure the fulfilment of any obligations imposed by law, except so far as the provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

(3) For the purposes of paragraph (c) of subsection (2) of this section, "law" in that subsection includes directions in writing regarding the conduct of public officers generally or any class of public officer is sued by the Government.

(4) Any restriction on a person's freedom of movement which is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section.

(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 naturali sation under the British Nationality and Status of Aliens Act 1914 [1914 c.17] or the British Nationality Act 1948 [1948 c.56];

[NOTE by the British Nationality Act 1981 section 51 without prejudice to subsection (3)(c) thereof in any UK statutory instrument made before 1 Jan uary 1983 "British subject" and "Commonwealth citizen" have the same meaning and in relation to any time after 1 January 1983 means a person who has the sta tus of a Commonwealth citizen under the British National ity Act 1981]

(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.

Protection from discrimination on the grounds of race, etc.

12 (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 af fording 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 advan tages 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—

(a) for the appropriation of revenues or other funds of Bermuda or for the imposition of taxation (including the levying of fees for the grant of licences);

(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 II of, this Constitution;

(c) for the application, in the case of persons of any such description as is mentioned in subsection (3) of this sec tion (or of persons connected with such persons) of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that de scription; or

(d) whereby persons of any such description as is men tioned in subsection (3) of this section may be subjected to any disability or restriction or may be accorded any
privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reason ably justifiable in a democratic society.

(5) Nothing contained in any law shall be held to be inconsis tent with or in contravention of subsection (1) of this section to the ex tent that it requires a person to possess Bermudian status or belong to Bermuda for the purposes of section 11 of this Constitution or to possess any other qualification (not being a qualification specifically relating to race, place of origin, political opinions, colour or creed) in order to be eli gible for appointment to any office in the public service or in a disci plined force or any office in the service of a local government authority or of a body corporate established directly by any law for public purposes.

(6) Subsection (2) of this section shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection (4) or (5) of this section.

(7) Subject to the provisions of subsection (8) of this section, no person shall be treated in a discriminatory manner in respect of access to any of the following places to which the general public have access, namely, shops, hotels, restaurants, eating-houses, licensed premises, places of entertainment or places of resort.

(8) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any restriction on the rights and freedoms guaran teed by section 7, 8, 9, 10 and 11 of this Constitution, being such a re striction as is authorised by section 7(2)(a), 8(5), 9(2), 10(2) or 11(2)(a), as the case may be.

(9) Nothing in subsection (2) of this section shall affect any dis cretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or un der this Constitution or any other law.

Protection from deprivation of property

13 (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say—

(a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, pub lic order, public morality, public health, town and coun try planning or the development or utilisation of any property in such manner as to promote the public bene fit or the economic well-being of the community; and

(b) there is reasonable justification for the causing of any hardship that may result to any person having an inter est in or right over the property; and

(i) for the prompt payment of adequate compensa tion; and

(ii) securing to any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, in terest or right, and the amount of any compen sation to which he is entitled, and for the pur pose of obtaining prompt payment of that com pensation; and

(d) giving to any party to proceedings in the Supreme Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in that Court sitting as a court of original jurisdiction.

(2) Nothing contained in any law shall be held to be inconsis tent with or in contravention of subsection (1) of this section—

(a) to the extent that the law in question makes provision for the taking of possession or acquisition of any prop erty, interest or right—

(i) in satisfaction of any tax, rate or due;

(ii) by way of penalty for breach of any law or for feiture in consequence of a breach of any law;

(iii) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;

(iv) by way of the taking of a sample for the pur poses of any law;

(v) where the property consists of an animal upon its being found trespassing or straying;

(vi) in the execution of judgments or orders of a court;

(vii) by reason of its being in a dilapidated or danger ous state or injurious to the health of human beings, animals or plants;

(viii) in consequence of any law with respect to pre scription or the limitation of actions; or

(ix) for so long only as may be necessary for the purposes of any examination, investigation, trial or inquiry or, in the case of land, for the pur poses of the carrying out thereon of work of reclamation, drainage, soil conservation or the conservation of other natural resources or work relating to agricultural development or im provement (being work relating to such devel opment or improvement that the owner or occu pier of the land has been required, and has, without reasonable and lawful excuse, refused or failed to carry out),

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society; or

(b) to the extent that the law in question makes provision for the taking possession or acquisition of any of the following property (including an interest in or right over property), that is to say—

(i) enemy property;

(ii) property of a deceased person, a person of un sound mind or a person who has not attained the age of twenty-one years, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein;

(iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or

(iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the pur pose of giving effect to the trust.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that the law in question makes provision for the compulsory taking of possession in the public interest of any prop erty, or the compulsory acquisition in the public interest of any interest in or right over property, where that property, interest or right is held by a body corporate established by law for public purposes in which no moneys have been invested other than moneys provided from public funds.

Provisions for time of war or emergency

14 (1) This section applies to any period when—

(a) Her Majesty is at war; or

(b) there is in force a proclamation (in this section referred to as a "proclamation of emergency") made under sub section (3) of this section.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5, any provision of section 6 other than subsections (4) and (6) thereof, or any provision of sections 7 to 12 (inclusive) of this Constitution to the extent that the law in question makes in relation to any period to which this section applies provision, or authorises the doing during any such period of anything, which is reasonably justifiable in the circumstances of any situation arising or existing during that period for the purpose of dealing with that situation.

(3) The Governor may, by proclamation published in the Gazette, declare that a state of emergency exists for the purposes of this section.

(4) Where any proclamation of emergency has been made, copies thereof shall as soon as is practicable be laid before both Houses,

and if for any cause those Houses are not due to meet within five days of the making of that proclamation the Governor shall, by proclamation published in the Gazette, summon them to meet within that period and they shall accordingly meet and sit upon the day appointed by the proclamation and shall continue to sit and act as if they had stood ad journed or prorogued to that day:

Provided that if the proclamation of emergency is made during the period between a dissolution of the Legislature and the next ensuing general election—

(a) the Houses to be summoned as aforesaid shall be the Houses referred to in section 50 of this Constitution un less the Governor is satisfied that it will be practicable to hold that election within seven days of the making of the proclamation of emergency; and

(b) if the Governor is so satisfied, he shall (instead of sum moning the Houses so referred to to meet within five days of the making of the proclamation) summon the Houses of the new Legislature to meet as soon as practi cable after the holding of that election.

(5) A proclamation of emergency shall, unless it is sooner re voked by the Governor, cease to be in force at the expiration of a period of fourteen days beginning on the date on which it was made or such longer period as may be provided under subsection (6) of this section, but without prejudice to the making of another proclamation of emer gency at or before the end of that period.

(6) If at any time while a proclamation of emergency is in force (including any time while it is in force by virtue of the provisions of this subsection) a resolution is passed by each House approving its continu ance in force for a further period, not exceeding three months, beginning on the date on which it would otherwise expire, the proclamation shall, if not sooner revoked, continue in force for that further period.

(7) Where any person is lawfully detained in pursuance only of such a law as is referred to in subsection (2) of this section—

(a) he may from time to time request that his case shall be reviewed under paragraph (b) of this subsection but, where he has made such a request during the period of that detention, no subsequent request shall be made during that period before the expiration of six months from the making of the previous request; and

(b) where a request is made under paragraph (a) of this subsection, the case shall within one month of the making of the request be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice.

(8) On any review by a tribunal in pursuance of subsection (7) of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with such recommendations.

(9) The functions conferred upon the Governor by this section shall be exercised by him after consultation with the Premier:

Provided that if in the judgment of the Governor it is impractica ble for him to consult with the Premier, those functions shall be exer cised by the Governor acting in his discretion.

Enforcement of fundamental rights

15 (1) If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction—

(a) to hear and determine any application made by any per son in pursuance of subsection (1) of this section; and

(b) to determine any question arising in the case of any per son which is referred to it in pursuance of subsection (3) of this section,

and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the foregoing provisions of this Chapter to the protection of which the person concerned is entitled:

Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.

(3) If in any proceedings in any court established for Bermuda other than the Supreme Court or the Court of Appeal, any question arises as to the contravention of any of the foregoing provisions of this
Chapter, the court in which the question has arisen shall refer the ques tion to the Supreme Court unless, in its opinion, the raising of the ques tion is merely frivolous or vexatious.

(4) An appeal shall lie as of right to the Court of Appeal from any final determination of any application or question by the Supreme Court under this section, and an appeal shall lie as of right to Her Majesty in Council from the final determination by the Court of Appeal of the appeal in any such case:

Provided that no appeal shall lie from a determination by the Supreme Court under this section dismissing an application on the ground that it is frivolous or vexatious.

(5) The Legislature may by law confer upon the Supreme Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this section.

(6) The Legislature may by law make, or provide for the making of, provision with respect to the practice and procedure—

(a) of the Supreme Court in relation to the jurisdiction and powers conferred upon it by or under this section;

(b) of the Supreme Court or the Court of Appeal in relation to appeals under this section from determinations of the Supreme Court or the Court of Appeal; and

including provision with respect to the time within which any applica tion, reference or appeal shall or may be made or brought.

Interpretation

16 (1) In this Chapter, unless it is otherwise expressly provided or required by the context—

"contravention" in relation to any requirement includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;

"court" means any court of law having jurisdiction in Bermuda, including Her Majesty in Council, but excepting, save in sec tions 2 and 4 of this Constitution, a court constituted by or under disciplinary law;

"disciplinary law" means a law regulating the discipline of any disciplined force;

"disciplined force" means—

(a) a naval, military or air force;

(b) any police force of Bermuda;

"member" in relation to a disciplined force includes any person who, under the law regulating the discipline of that force, is subject to that discipline.

(2) In relation to any person who is a member of a disciplined force raised under the law of Bermuda, nothing contained in or done un der the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of the provisions of this Chapter other than sections 2, 3 and 4.

(3) In relation to any person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in Bermuda nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter.

CHAPTER II

THE GOVERNOR

The Governor

17 (1) There shall be a Governor and Commander-in-Chief of Bermuda who shall be appointed by Her Majesty by Commission under Her Sign Manual and Signet and shall hold office during Her Majesty's pleasure.

(2) The Governor shall have such functions as are conferred on him by or under this Constitution or any other law and such other func tions as Her Majesty may be pleased to assign to him, and, subject to the provisions of this Constitution and of any law by which any such func tions are conferred, shall do and execute all things that belong to his of fice (including the exercise of any functions that are expressed to be ex ercisable in his discretion) according to such instructions, if any, as Her Majesty may from time to time see fit to give him under Her Sign Manual and Signet or through a Secretary of State:

Provided that the question whether or not the Governor has in

any matter complied with any such instructions shall not be inquired into in any court.

(3) A person appointed to the office of Governor shall, before assuming the functions of that office, make oaths or affirmations of alle giance and for the due execution of that office in the forms set out in the Schedule to this Constitution.

Office of Deputy Governor

18 (1) There shall be a Deputy Governor who shall be appointed by the Governor in pursuance of instructions given by Her Majesty through a Secretary of State and shall hold office during Her Majesty's pleasure.

(2) If the office of Deputy Governor is vacant or the person holding that office is acting in the office of Governor under section 19 of this Constitution or is for any other reason unable to perform the func tions of the office of Deputy Governor, then the Governor, acting in his discretion, may appoint a person to act as Deputy Governor and any such person shall continue to act until his appointment is revoked by the Governor, acting in his discretion.

Acting Governor

19 (1) During any period when the office of Governor is vacant or the Governor is absent from Bermuda or is for any other reason un able to perform the functions of his office—

(a) the Deputy Governor; or

(b) if the office of Deputy Governor is vacant or the Deputy Governor is absent from Bermuda or is for any other reason unable to perform the functions of the office of Governor, such person as Her Majesty may designate in that behalf by instructions given through a Secretary of State (in this section referred to as "the person desig nated"),

shall, during Her Majesty's pleasure, act in the office of Governor and shall perform the functions of that office accordingly.

(2) Before assuming the functions of the office of Governor, the Deputy Governor or the person designated shall make the oaths or affir mations directed by section 17(3) of this Constitution to be made by the Governor.

(3) The Deputy Governor shall not continue to act in the office of Governor after the Governor has notified him that he is about to as sume or resume the functions of that office and the person designated shall not continue to act in that office after the Governor or Deputy Gov ernor has so notified him.

(4) The salary and allowances payable by or under any law en acted by the Legislature to any person while he is acting in the office of Governor under this section shall be a charge on the Consolidated Fund.

(5) In this section "the Governor" means the person holding the office of Governor and "the Deputy Governor" means the person holding the office of Deputy Governor.

Functions of Deputy Governor

19A (1) Subject to the provisions of subsection (2) of this section, the Deputy Governor shall—

(a) assist the Governor in the exercise of his functions re lating to matters for which he is responsible under sec tion 62 of this Constitution;

(b) assist the Governor in the exercise of such of his other functions, being functions in the exercise of which the Governor is not obliged to act in accordance with the ad vice of some other person or authority, as the Governor, acting in his discretion, may direct; and

(c) perform such other functions, not of a ministerial na ture, as (subject to the provisions of this Constitution and of any other law) may be assigned to the Deputy Governor, at the request of the Premier, by the Governor acting in his discretion.

(2) The Governor, acting in his discretion, may by writing un der his hand, authorise the Deputy Governor to exercise for and on be half of the Governor, subject to such exceptions and conditions as the Governor may from time to time specify, any or all of the functions of the office of Governor.

(3) The powers and authority of the Governor shall not be af fected by any authority of the Deputy Governor under subsection (2) of this section and, subject to the provisions of this Constitution and of any law by which any function which the Deputy Governor is authorised to exercise is conferred, the Deputy Governor shall comply with such in structions relating to the exercise of that function as the Governor, act ing in his discretion, may from time to time address to him:

Provided that the question whether or not the Deputy Governor has in any matter complied with any such instructions shall not be en quired into in any court of law.

(4) Any authority given under subsection (2) of this section may at any time be varied or revoked by Her Majesty by instructions given through a Secretary of State or by the Governor, acting in his discretion, by writing under his hand.

(5) In subsection (2) of this section the reference to any func tions of the office of Governor does not include a reference to—

(a) the functions conferred upon the Governor by this sec tion; or

(b) any functions conferred upon the Governor by any Act of the Parliament of the United Kingdom or by any Order of Her Majesty in Council or other instrument made under any such Act other than the Bermuda Constitution Act 1967 [title 2 item 9].

Personal staff and expenditure of the Gover nor

20 (1) The Legislature may, by law, prescribe the offices that are to constitute the personal staff of the Governor, the salaries and allowances that are to be paid to the members of that staff and the other sums that are to be paid in respect of the expenditure attaching to the office of Gov ernor.

(2) Any salaries, allowances or other sums prescribed under subsection (1) of this section shall be a charge on the Consolidated Fund.

(3) The power to make appointments to the offices for the time being prescribed under subsection (1) of this section as being offices constituting the personal staff of the Governor, and to remove and to ex ercise disciplinary control over persons holding or acting in such offices, shall vest in the Governor, acting in his discretion.

Exercise of Governor's functions

21 (1) In the exercise of his functions the Governor shall, subject to the provisions of this section, obtain and act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.

(2) Subsection (1) of this section shall not apply to the exercise by the Governor of—

(a) any function relating to any business of the Government for which he is responsible under section 62 of this Con stitution;

(b) any function conferred upon him by this Constitution which is expressed to be exercisable by him in his dis cretion, or in accordance with the recommendation or advice of, or after consultation with, any person or au thority other than the Cabinet; or

(c) any function conferred upon him by any other law which is expressed to be exercisable by him in his discretion or which he is otherwise authorised by such law to exercise without obtaining the advice of the Cabinet.

(3) Where the Governor is by this Constitution or any other law directed to exercise any function in accordance with the recommendation of any person or authority, then—

(a) before he acts in accordance therewith, he may, acting in his discretion, once refer that recommendation back for reconsideration by the person or authority con cerned; and

(b) if that person or authority, having reconsidered the original recommendation under the preceding para graph, substitutes therefor a different recommendation, the provisions of this subsection shall apply to that dif ferent recommendation as they apply to the original rec ommendation.

(4) Where the Governor is by this Constitution or any other law directed to exercise any function after consultation with any person or authority other than the Cabinet he shall not be obliged to exercise that function in accordance with the advice of that person or authority.

(5) Where the Governor has obtained the advice of the Cabinet or a Minister on any matter in pursuance of subsection (1) of this sec tion, he may act otherwise than in accordance with that advice if in his judgment it is necessary or expedient so to act in the interests of any of the matters referred to in paragraphs (a), (b), (c) and (d) of section 62(1) of this Constitution.

(6) Where the Governor is by this Constitution or any other law directed to exercise any function in accordance with the recommendation or advice of, or after consultation with, any person or authority, the question whether he has so exercised that function shall

Bermuda Consolidated Legislation

Bermuda Constitution Order 1968