Is 2017 the year for Bermuda’s Constitution to be updated?

Bermuda is fortunate to have a written Constitution, which is contained in the Bermuda Constitution Order 1968, an Order in Council made by Her Majesty in Council under the UK’s Bermuda Constitution Act 1967. The Constitution has been amended a number of times, by amendments made in 1968, 1973, 1979, 1989, 2001, 2003 and 2010.

Chapter I of the Schedule to the Constitution provides for the “Protection of Fundamental Rights and Freedoms of the Individual“. Section 12 provides, in turn, for “Protection from discrimination on the grounds of race, etc“.

It turns out, however, that the “etc” only expressly prohibits discrimination on grounds of “race, place of origin, political opinions, colour or creed“.

Surely the time has now come (as we fast approach 2017, the 50 year anniversary of the Bermuda Constitution Act 1967) when the Constitutionally protected grounds should be expressly extended to include the following additional grounds (and perhaps others as well)?

  • Gender;
  • Sex;
  • Sexual orientation;
  • Language;
  • Age;
  • Disability.

Writing extra-judicially as long ago as 2004, the current Chief Justice of Bermuda, Dr Ian R C Kawaley, suggested that: “Some refinements to the Bill of Rights, also derived from the Bill of Rights championed by Nelson Mandela (arguably the world’s leading living human rights authority), seem warranted. The protection against discrimination clause would be far broader than those typically found in older Commonwealth bills of rights. But not as broad as the approach taken by the equal protection clause in the 14th Amendment to the United States Constitution which simply prohibits all forms of discrimination, leaving the courts to decide what forms of discrimination deserve protection. It would, therefore, prohibit discrimination on the grounds of “ race, gender, sex, pregnancy, marital status, ethnic orsocial origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”. At present only discrimination on grounds of race, place of origin, political opinions, colour or creed is constitutionally prohibited.

For the full paper, see http://www.justice.bm%2Ffiles%2F18%2Ffiles%2FHistory%2520of%2520Bermuda’s%2520Constitution%2C%252024%2520June%25202004%2520-%2520Kawaley%2520J.pdf&usg=AFQjCNFWAsrgqoaEsJ0a7r1JPGVTNOsjSA

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