“The actions taken by the Governor to date are expressly permitted by the Constitution and are appropriate in the circumstances,” the Bermuda Human Rights Commission said in reference to the “shelter in place” order made by the Governor, in consultation with the Premier.
A spokesperson said, “The coronavirus [Covid-19] pandemic has created a global crisis which now directly impacts the population of Bermuda. In response, the Governor, in consultation with the Premier, has taken action by passing a “shelter in place” order which is meant to slow the spread of the disease. Although this is an extraordinary exercise of the Governor’s power, in that it temporarily curtails residents’ rights to freedom of movement and assembly as guaranteed by the Bermuda Constitution Order 1968 [Constitution], the Office of the Human Rights Commission [Commission] is of the view that the actions taken by the Governor to date are expressly permitted by the Constitution and are appropriate in the circumstances.
Governor’s Proclamation & Subsequent “Shelter in Place” Regulations
“On the 1st of April 2020, the Governor exercised his powers under Section 14[3] of the Constitution to proclaim that a “State of Emergency” exists on the island, in the face of the Covid-19 pandemic. This proclamation further summoned both Houses of the Legislature to meet and appointed the date of that meeting to be at 10 a.m. on the 6th April 2020.
“Subsequent to that proclamation, the Governor passed the Emergency Powers [Covid-19 Shelter in Place] Regulations 2020 [Regulations] on the 3rd of April, 2020, pursuant to his powers under Section 3 of the Emergency Powers Act, 1963. Those regulations, which took effect on the 4th of April 2020, acknowledged that the World Health Organization had declared Covid-19 to be a global pandemic and that Covid-19 is an unprecedented and severe threat to public health in Bermuda.
“The Regulations require that all residents of Bermuda remain within their residential properties for at least 23 hours a day. The only exceptions to that requirement are to allow non-exempted individuals to buy food and medicine, attend medical appointments, assist an elderly relative and engage in a limited period of walking or running for exercise.
“Unless the Regulations are extended, they will cease to have effect at 6 a.m. on the 18th of April 2020.
Constitutional Provision for State of Emergency Proclamations
“Section 14 of the Constitution, among other things, allows the Governor, after consultation with the Premier, to proclaim a “state of emergency” which may last for up to 14 days. During that time, regulations or acts of parliament may be lawfully passed which would otherwise infringe rights that are guaranteed by the Constitution. Section 14 also requires that the Legislature and Senate convene during the state of emergency, at which time, they may authorise an extension of the state of emergency by up to three months. Section 14 also authorises the Governor, in consultation with the Premier, to issue another proclamation of emergency at or before the end of that period.
State of Emergency: Implications for Constitutional & Human Rights
“While the Commission recognises that the actions taken to date have been necessary to slow the spread of Covid-19, the Commission wishes to remind the Government of Bermuda [Government] that the state of emergency confers it with extraordinary powers. For that reason, and moving forwards, the Commission urges the Government to only act in a manner that is strictly necessary, in the face of the pandemic, and which minimally impairs the constitutional and human rights all of Bermuda’s residents for the duration of the emergency.
Communication with the Office of the Human Rights Commission
“During this challenging time in Bermuda, the Commission will continue to issue regular statements to media outlets [and via our independent website] to ensure that the community remains vigilant and aware of human rights considerations. Pursuant to Section 14 of the Human Rights Act, 1981, the Commission has a duty to encourage an understanding of the fundamental rights and freedoms that are guaranteed by the Constitution. Accordingly, the Commission will include constitutional considerations in its Covid-19 statements, where it deems this to be appropriate for the fulfilment of this statutory duty.
“The Commission stands ready to provide guidance and to work with the Government, industry associations, businesses and individuals in accordance with our statutory mandate. The exercise of powers by Government officials under the Regulations and any related Covid-19 legislation needs to continue to be in alignment with human rights principles and the Commission will be undertaking an independent review of the Regulations and any related legislation from this perspective in the coming weeks.
“The Human Rights Commission has a statutory remit to protect and promote human rights under the Human Rights Act, 1981. As the National Human Rights Institution for Bermuda, our mission is to eliminate discrimination through advocacy, education and enforcement.
“Find out more by phone 295-5859, email humanrights@gov.bm, on our independent website www.humanrights.bm, Facebook and Twitter.”
