Opposition Asks Governor To Withold Assent

June 19, 2015

A letter hand delivered to Governor George Ferguson on behalf of the Progressive Labour Party yesterday [June 18] asks the Governor to withhold his assent for the proposed Criminal Reform Act 2015 and the Criminal Jurisdiction and Procedure Act 2015, noting the PLP’s “vigorous opposition” to the changes during House debate.

After legislation passes both the House of Assembly and Senate, the Governor must give his assent before it officially becomes law.

The letter, from Shadow Attorney General Michael Scott, says, “I accordingly make an official request that you withhold your assent to the two Bills whenever they reach your office, until you have received advice from the Secretary of State on the constitutionality of the two Acts.

“By way of background, I refer to the OBA government’s promotion and passage in the House on June 5, of The Disclosure And Criminal Reform Act 2015 and the Criminal Jurisdiction and Procedure Act 2015.

“Both of these Acts have come under fire and been heavily criticised by no less than the country’s principle legal bodies The Bermuda Bar Association and the Criminal Defence Bar.

“The Opposition Progressive Labour Party mounted a vigorous opposition to the two Acts during the House debate. The consistent concern and criticism of the Acts, shared by these aforementioned bodies is that the Bills are unconstitutional. The Bermuda Bar Association’s position follows:

“Some of the proposed amendments infringe on the constitutional rights of individual and such infringements cannot be justified on the basis of efficiency and cost savings.”

“As the Opposition’s Legal Adviser I believe that I have provided in summary, a sufficient argument and case for you to withhold Your Excellency’s assent on the basis that a mounting case and argument of the Bills unconstitutionality has been made out, and the Opposition accordingly request that Your Excellency hold formal consultation with the Secretary of State and seek his confirmation and advice on the constitutionality of the two Bills before advising your assent.”

The full letter follows below:

June 18, 2015
His Excellency the Governor
Mr. George Fergusson
Government House
11 Langton Hill
Pembroke HM 13

Dear Your Excellency,

Ref: The Disclosure And Criminal Reform Act 2015 and the Criminal Jurisdiction and Procedure Act 2015 With holding of the Governors Assent

On behalf of the loyal Opposition Progressive Labour Party, I write to you on a matter of urgent constitutional and public importance and concern in Bermuda which have direct bearing on your powers under section 35[2] [c] of the Bermuda Constitutional Order 1968 to withhold your assent.

I accordingly make an official request that you withhold your assent to the two Bills whenever they reach your office, until you have received advice from the Secretary of State on the constitutionality of the two Acts.

By way of background, I refer to the OBA government’s promotion and passage in the House on June 5, of The Disclosure And Criminal Reform Act 2015 and the Criminal Jurisdiction and Procedure Act 2015. Both of these Acts have come under fire and been heavily criticised by no less than the country’s principle legal bodies The Bermuda Bar Association and the Criminal Defence Bar.

The Opposition Progressive Labour Party mounted a vigourous opposition to the two Acts during the House debate. The consistent concern and criticism of the Acts, shared by these aforementioned bodies is that the Bills are unconstitutional. The Bermuda Bar Association’s position follows ; “ Some of the proposed amendments infringe on the constitutional rights of individual and such infringements cannot be justified on the basis of efficiency and cost savings.”

The Opposition PLP regard section 5 of the Disclosure and Criminal Reform Act 2015- Duty of Accused to person to give a defence statement, as an infringement of the right to remain silent, which is a fundamental right protected under section 1 [a] of the Bermuda Constitution Order, providing for the right to protection of the law and is not subject to limitation imposed by the Government, minimal or otherwise. It is our view that both Bills contain other provisions that are unconstitutional, including the provision that denies the accused the right to call evidence including evidence of alibi at trial if he has failed to give prior notice to the police or the Prosecution.

In this regard the Opposition is in full agreement with the Bermuda Bar when it states that “We do not believe this legislation, as drafted, can possibly withstand Constitutional challenge. Thus, passing this legislation as it is currently written will only lead to complex Constitutional litigation, wasted court time and increased costs. Until such time as the legislation is struck down, it could also contribute to miscarriages of justice.”

Your Excellency, section 35 [2] [c] of the Bermuda Constitution is the relevant provision that engages your powers to withhold assent to bills , it provides as follows;

When a Bill is presented to the Governor for assent , he shall signify that he assents or that he withholds assent or that he reserves the bill for the signification of Her Majesty ‘s pleasure:

Provided that , unless he has been authorized by the Secretary of State to assent thereto , the Governor shall reserve for the signification of Her Majesty ‘s pleasure any bill which appears to him , acting in his discretion
[a]…..
[b]……
[c] to be in any way repugnant to or inconsistent with the provisions of this Constitution.

As the Opposition’s Legal Adviser I believe that I have provided in summary , a sufficient argument and case for you to withhold Your Excellency’s assent on the basis that a mounting case and argument of the Bills unconstitutionality has been made out, and the Opposition accordingly request that Your Excellency hold formal consultation with the Secretary of State and seek his confirmation and advice on the constitutionality of the two Bills before advising your assent.

All of which is respectfully submitted,

Michael J Scott
Shadow Attorney General and Minister of Justice

Cc: Leader of the Opposition Marc A Bean

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Comments (33)

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  1. Hand delivered? Isn’t the Governor partaking in the upcoming 20th Marion to Bermuda Race? So, how and what time did the Opposition deliver this appeal? :-(
    They, (P.L.P.) didn’t want anything to do with the “Mother Land”. “Now the shoe is on the other foot”, strange how some people behave when finding they have to, “kiss tail” in’na?

  2. Cow Polly says:

    And this is where the PLP’s past behavior comes back to haunt them. If they had remained a credible opposition then may be some attention would be paid to this request, which may or may not be valid, but as it is, this will be viewed as another publicity stunt trying to get their own way even if though they are not the Government anymore – similar to stomping over to Britain to tell tales about the OBA to the BFO.
    SMH.

  3. Unbelievable says:

    So legislation passes in the HoA and the PLP wants to stop it becoming law by petitioning the Governor? Of course, the Governor will reject the PLP’s request and then the PLP will make hay over it.

    • Real Talk (original) says:

      You mean like how the HoA passed a motion for a commission of inquiry into land thefts and the Governor declined to assent?

      • Onion says:

        Now now, let’s not spin the truth. The Governor asked for a specific actionable request with a budget and instead of dealing with the issues the Governor raised it was instead dropped because it was just a stunt and not a serious attempt to create a Royal Commission.

  4. Mockingjay says:

    Thats like asking the fox to guard the hen house.

    • Boom says:

      @Mockingjay. Or it is like asking the PLP to watch over the countries finances.

  5. Terry says:

    Question.

    Where in the Constitution of Bermuda does it say anything about the right to remain silent or similar.

    I know it is in the law.

    Please inform me.

    Shalom.

    • serengeti says:

      Nowhere. There is nothing at all unconstitutional about the new law reforms.

    • Build a Better Bermuda says:

      There is nothing in the law that impedes one right to remain silent, all the legislation does is allow the prosecution to draw inference to the persons choice to remain silent in certain circumstances… i.e. the person is holding or in possession of a weapon or proceeds of a crime and refuses to offer explanation when question by the authorities.

      People still have the right to remain silent, but that they ought have an explanation for it

      As for the ‘provision that denies the accused the right to call evidence including evidence of alibi at trial if he has failed to give prior notice to the police or the Prosecution’, again this does not prevent a person from calling evidence or alibi, it just means they have to give notice to the police or prosecution before they do so… i.e. they can’t just produce these at the last minute during a trial. This will allow the police or prosecution to look into the matters before they have to address it in court, just like the police or prosecution have to produce their evidence to the defence before it appears in court.

  6. sswhite says:

    As if

  7. Rhonnie aka BlueFamiliar says:

    I don’t know if the Bills are unconstitutional or not, I don’t understand the laws involved and the intricacies involved.

    And I think the letter should have been CC’d to the Premier as well as the Opposition leader.

    But other than that, I’m pretty darned impressed with how the concerns are being handled.

    This is how I want to see the Opposition handle things! Bravo!

  8. Bermyman says:

    The governor is Sailing to Bermuda for the next 5 days. He may not get the letter right away! Any bets that the PLP start calling for marches middle of next week, like last time the Governor was away!

    • Bie’ things are “hot” up on the hill! P.L.P. are insisting, “leave the past in the past” in respect to the millions of dollars spent by them :-(

    • Unbelievable says:

      It’s a sure bet. Then Mockingjay is going to say “It’s gonna be HOT HOT SUMMER!”

  9. Terry says:

    More bullsheet by the PLP to gain favor with the votes they lost.

    Back in the 60-80′s they were the best Opposition.
    They had credible and knowledgable MP’s.

    You asked for it you got it ToyPLP.

    Shalom.

  10. Alvin Williams says:

    Sailing to Bermuda and we are paying over a million dollars a year for his upkeep. When will Bermuda give up the delusion that the British appointed governor is here to uphold Bermudian interests?

    • jt says:

      I guess the request should be withdrawn. Right?

      • Franklin Jr says:

        helping to promote an event that brings $$$ to Bermuda… sorry, I’m not following your problem?

  11. swing voter says:

    Hey Alvin I’d rather my 1M support HE’s posh pre-retirement ‘job’ than to trust our ‘politicians’ to run an independent Bermuda. Both sides can never be trusted with that type of power…BOTH SIDES

  12. Sara says:

    This is where the saying keep your friends close and your enemies closer comes to mind. If they hadn’t rocked the boat with the governors past and present, they may have stood a chance. But being what happened in the past I highly doubt the governor feels the need to help the PLP in any way shape or form. Just a guess on my part but what do I know?

  13. Warwick pond Skink says:

    Hey Alvin – short plank – long walk
    Th man is allowed some down time
    maybe he should get some Union representation…

  14. NCM says:

    Oh, the irony. PLP goes crying to Govt. House yet MP Walton Brown has had the following motion on the order paper for the House of Assembly for several months and has yet to move it for debate:

    Motion to be moved by Mr. C. W. Brown, notice which was given on 11th March, 2015: “Pursuant to Article 73 of the Charter of the United Nations which states, inter alia, that “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost…the well-being of the inhabitants of these territories”; and further, “to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses”; and being mindful that the United Kingdom is a founding member of the United Nations and the administering power for the Overseas Territory of Bermuda, this Honourable House observes that the UK government: (1) did not use its authority to eliminate racial segregation in these islands; (2) did not use its authority to grant universal suffrage in these islands; and more recently, given that the UK government has: (1) unfairly and publicly chastised Bermuda over its taxation regime; (2) rejected a decision by this Honourable House calling for a Commission of Inquiry into allegations of systemic property theft in these islands; (3) rejected a bi-partisan call for the appointment of a Bermudian Director of Public Prosecutions; and (4) rejected a bi-partisan call for the appointment of a Bermudian Information Commissioner, this Honourable House concludes that the United Kingdom government is acting in a manner contrary to the best interests of Bermuda and Bermudians.

    • My, my, my…M.P. Walton Brown Sir, (and colleagues) what would you / do you wish to say in your defense?

    • Build a Better Bermuda says:

      Much like his so very precious inquiry bill (that for some reason he has not taken up to fix so that it can meet the requirements of a call for inquiry), they are waiting til they know that they will have more PLP MP’s in the house than OBA MP’s so that they can harp about how it was democratically voted through the house (by less than half the elected MP’s) when it gets inevitably rejected for not being any actual legislation that can be signed into law.

  15. Sony says:

    Bermudians are so stupid

  16. Alvin Williams says:

    I know one thing I would not be asking the British for anything; that would be giving them legitimacy.

    • Zevon says:

      So you agree with me then. By asking the Governor to withold assent the PLP is showing itself to be anti-democratic and anti-Bermudian. You appear to see it the same way Alvin. You disagree with what the PLP is doing. Good, that’s progress.

  17. Ask yourself, “Can I honestly trust the Progressive Labour Party as they are presently presenting themselves? Had we,(once again)”dodged another bullet”?
    I quote another friend. “Irrespective of whether one does support the current airport initiative, this revelation brings into sharp focus just how damned inconvenient the P.L.P.’s election loss was for them.
    We were fortunate to have dodge that bullet! Their noses were “rudely yanked from the Taxpayer’s feeding trough.” Anybody care to guess what the real cost of the P.L.P.s airport would have been?

  18. Alvin Williams says:

    That is not what I mean at all; I don’t see how we are going to get the British to do anything unless they consider that British interests are directly involved.

    • Zevon says:

      But getting anyone to interfere with laws passed by Bermuda’s government is anti-Bermudian and anti-democratic. Surely you agree with that.