Opinion

Constitutional rights and freedoms

  • Gubernatorial guidance: health minister Kim Wilson (File photograph by Akil Simmons)
  • Allan Doughty practises human rights law and medical law, and is part of MJM Ltd’s dispute resolution team

On June 19, 2020, the House of Assembly passed a Bill to amend the Public Health Act. The effect of the amendment is that the Minister of Health now has the power to declare a “Public Health Emergency” if she is satisfied that a communicable disease or the threat of a communicable disease endangers the public’s health.

The amendment also empowers the Governor, after consulting with the minister, to pass regulations similar to those passed in April. Such new regulations would allow for restrictions to be placed on the movements of individuals, classes of people or the population in general for the purpose of protecting the public from the disease in question.

Given the restrictions that were imposed, subsequent to the declaration of the constitutional “State of Emergency” on April 2, 2020, it may seem that nothing new arises from these new powers. From a constitutional perspective, however, the new powers do constitute a significant change, as they now allow for substantially greater oversight by the courts during the course of a “Public Health Emergency”.

To understand the significance of the change, we must first appreciate the basis for the declaration of the original state of emergency on April 2. Section 14 of our Constitution allows the Governor to declare a “State of Emergency”, which may be extended by the legislature for a total of 3½ months. During a “State of Emergency”, the Governor may pass regulations that lawfully infringe most of an individual’s rights and freedoms that are normally guaranteed by the Constitution. The individual rights and freedoms that may superseded by such regulations include the right to:

• Be free from arbitrary arrest or detention

• A fair hearing before an impartial court or tribunal

• Be free from unreasonable search and seizure by the state

• Freedom of conscience

• Freedom of expression

• Freedom of assembly

• Freedom of movement

• Freedom not to be discriminated against, by the Government, on the basis of race, place of origin, political opinions, colour or creed

• Not have one’s property seized by the Government without compensation

That these powers were last invoked in 1977 is indicative as to how rarely this authority has been exercised by Britain through the office of the Governor.

It was on the basis of the Governor’s emergency powers that he was able to order, in April, that we shelter in place and impose other restrictions, which, on their face, violated the right to be free from detention, to freedom of assembly and freedom of movement.

In doing so, it is noteworthy that the Governor did first consult with the Premier before exercising his emergency powers and relied on guidance provided by the Minister of Health, the Chief Medical Officer and the Attorney-General in the drafting of the regulations, which gave legal effect to those restrictions. As a result of those actions, it is arguable that Bermuda has been spared the worst of the Covid-19 pandemic so far and that Section 14 of the Constitution served its purpose in the face of that extraordinary threat.

So why then, does the Government wish to provide the Minister of Health with the power to declare a public health emergency? In considering this question, it must be noted that Section 14 of the Constitution does not define what an emergency is. Furthermore, Section 14 does not expressly require the Governor to consult with the Premier before making regulations, which otherwise may supersede our constitutional rights and freedoms.

The new power afforded to the Minister of Health, however, allows for her to declare a public health emergency only after she has consulted with the Chief Medical Officer and is satisfied that a public health crisis is in effect or is about to take place in Bermuda.

Furthermore, if measures are to be taken to deal with a health crisis, they must be implemented through regulations that may be passed by the Governor only after he has consulted with the Minister of Health. This means that the Governor will serve as a check on the power of the Minister of Health and, conversely, the Minister of Health will serve as a check on the power of the Governor.

Another feature of this new power, is that the Public Health Act now says that any regulations passed by the Governor, as part of a “Public Health Emergency”, will supersede any other law in Bermuda, save for that of the Constitution. This means that when regulations are issued for a “Public Health Emergency”, they will be subject to the Constitution and their legality may be reviewed by the courts.

In stating this, one must also understand that, while the Constitution guarantees certain rights and freedoms of the individual against the Government, these rights are not absolute. The Constitution expressly places limits on such rights and freedoms where the public interest requires it, but it is up to the courts, and not the legislature, to determine what the limits of an individual’s rights and freedoms are.

In summary, it seems that the Government, by passing this amendment, is seeking to channel the broad emergency powers of the Governor into a mechanism that is tailor-made for the purpose of dealing with a public health crisis.

In doing so, the decision on whether to declare the public health emergency lies with the elected government. The Governor, in turn, may pass emergency regulations only after consulting with the Minister of Health, and the regulations or actions of the agents of the Government may be later scrutinised by the court. For these reasons, Britain will likely see this amendment as desirable in that it will afford a member of the elected government the power to declare a more focused type of public health emergency as warranted.

Put another way, the new powers allow for further accountability in the face of the global catastrophe that we are now facing, which seeks to strike a finer balance between the rights of the individual against the needs of society as a whole.

Allan Doughty practises human rights law and medical law, and is part of MJM Ltd’s dispute resolution team