319
AC. Wheatley v. Waltham Forest L.B.C. (D.C.) Waterhouse J..
In view of what I have said, I do not consider that this is a case in which
clarification of the justices’ reasons should be sought, or that the case should
be remitted for rehearing before a fresh panel of justices. I would allow the:
appeal and allow the parental rights resolution of July 20, 1977, to lapse.
‘Sin Georce Baker P. I agree. There is nothing that I wish to add.
Appeal allowed.
Resolution to lapse.
Solicitors: Myers, Ebner & Deaner; R. E. Smith, Waltham Forest.
M.B. D.
[privy COUNCIL]
MINISTER OF HOME AFFAIRS anp ANOTHER . . APPELLANTS
AND
COLLINS MACDONALD FISHER AND ANOTHER . —. RESPONDENTS.
(APPEAL FROM THE COURT OF APPEAL FOR BERMUDA]
1979 Feb. 26, 27; Lord Wilberforce, Lord Hailsham of
May 14 St. Marylebone, Lord Salmon, Lord Fraser
of Tullybelton and Sir William Douglas.
Bermuda—Constitution—Person deemed to belong to Bermuda—
“Child "—Whether term includes illegitimate child—Bermuda
Constitution Order 1968 (S.I. 1968 No. 182), Sch. 2, s. 11 (5)
Statute—Construction—Constitutional instrument—Whether rules
of construction of statutes applicable
Section 11 of the Constitution of Bermuda provides:
“ (5) For the purposes of this section, a person shall
be deemed to belong to Bermuda if that person—(a)
possesses Bermudian status; . . . (c) is the wife of a
person to whom either of the foregoing paragraphs of
this subsection applies not living apart from such
person. . ; or (d) is under the age of 18 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.”
The Jamaican mother of four illegitimate children all
bom in Jamaica married a Bermudian in 1972. The mother
and the children took up residence with the husband in
Bermuda in 1975. At all material times the children were
under 18, In 1976 the Minister of Labour and Immigration
ordered the children to leave Bermuda, The mother and
her husband applied to the Supreme Court to quash the
order and for a declaration that the children were to be
deemed to belong to Bermuda The Supreme Court refused
a declaration on the ground that the children were illegiti-320
Min. of Home Affairs v. Fisher (P.C.) (1980)
mate. On appeal by the mother and her husband the Court
of Appeal held by a majority that the children were to be
deemed to belong to Bermuda by virtue of section 11 (5) (d)
of the Constitution.
On appeal by the Minister of Home Affairs (formerly the
Minister of Labour and Immigration) and the Minister of
Education: —
Held, (1) that a constitutional instrument should not
necessarily be construed in the manner and according to the
rules which applied to Acts of Parliament and, therefore
the presumption applicable to statutes concerning property,
succession and citizenship that “child” meant “legitimate
child” did not apply (post, pp. 328a-D, 329n-£),
That, although the manner of interpretation of a
col tional instrument should give effect to the language
used, recognition should also be given to the character and
origins of the instrument; that, since section 11 of the
Constitution was one of the sections dealing with the
fundamental rights and freedoms of an individual and sub-
section (5) (d) in its context was a clear recognition of the
unity of the family as a group and acceptance that children
should not be separated from a group which belonged to
Bermuda, “child” in the subsection was not to be restricted
in its meaning and the mother and her husband were entitled
to a declaration that the children were deemed to belong to
Bermuda (post, pp. 329D-F, 330E-G, 331A).
Decision of the Court of Appeal for Bermuda affirmed.
The following cases are referred to in the judgment of their Lordships:
Brule v. Plummer (unreported), January 23, 1979, Supreme Court of
Canada.
Dickinson v. North-Eastern Railway Co. (1863) 33 L.L.Ex. 91; 2 H. & C.
ane
Galloway v. Galloway [1956] A.C. 299; [1955] 3 W.LR. 723; 1955] 3
All ER. 429, H.L(E,).
Reg. V. Inhabitants of Totley (1845) 7 Q.B. 596.
Sydall v. Castings Ltd. [1967] 1 Q.B. 302; 1966} 3 W.L.R. 1126; [1966]
3 All E.R. 770, C.A.
Woolwich Union v. Fulham Union [1906] 2 K.B. 240; 22 T.L.R. nee
CA.
The following additional cases were cited in argument:
M. (An Infant), In re [1955] 2 Q.B. 479; [1955] 3 W.L.R. 320; [1955] 2
All E.R. 911, CA.
Reg. v. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat
Bibi [1976] 1 WLR. 979; [1976] 3 All ER. 843, C.A.
White v. Barrett [1973] 3 W.W.R. 293.
Appeat (No. 4 of 1978) by the Minister of Home Affairs (formerly
the Minister of Labour and Immigration) and the Minister of Education
from a judgment (July 15, 1977) of the Court of Appeal for Bermuda
offus and Georges JJ.A.; Hogan P. dissenting) allowing the appeal of
Collins MacDonald Fisher (the husband) and Eunice Carmeta Fisher
(as mother and next friend of Cheryl Angela Morgan, Valentine Denver
Morgan, Fitzroy O’Neil Stuart and Samuel Isaiah Tait (the children) )321
AG Min, of Home Affairs v. Fisher (P.C.)
from a judgment of Seaton J. (January 6, 1977) in the Supreme Court
of Bermuda whereby he refused to quash the order made by the Minister
of Labour and Immigration on October 22, 1976, that the children
should leave Bermuda and the order of the Minister of Education that
the children be removed from suitable education at recognised schools
or to grant a declaration that the children were to be deemed to possess
Bermudian status by virtue of the Bermuda Immigration and Protection
Act 1956 and were to be deemed to belong to Bermuda by virtue of sec-
tion 11 (5) of the Constitution of Bermuda. The Court of Appeal declared
that the children were to be deemed to belong to Bermuda by virtue
of section 11 (5) (d) of the Constitution.
The facts are stated in the judgment of their Lordships.
Colin Ross-Munro Q.C. and Christopher Carling for the Minister of
Home Affairs and the Minister of Education. The word “child” used
in section 11 (5) (@) of the Constitution of Bermuda does not include an
illegitimate child and therefore an illegitimate child is not entitled by
section 11 (1) to reside in Bermuda as a person who is “deemed to
belong to Bermuda.”
The Constitution should be construed in the same way as an English
statute. It is scheduled to an English statutory instrument which was
itself made under an Act of the United Kingdom Parliament; there is no
authority to support a different interpretation; and see section 102 (4)
of the Constitution. The correct approach to the construction of the
word “child” is that enunciated by Lord Tucker in Galloway v.
Galloway [1956] A.C. 299, 323 that prima facie “child” means legiti-
mate child and an illegitimate child can only be included by express
words or necessary implication from the context. But see Viscount
Simonds at pp. 310-311 to the contrary and Lord Radcliffe’s criticism
at p. 318. Lord Tucker’s approach has not been criticised in any sub-
sequent decision although before Galloway v. Galloway there was a
number of decisions which favoured the approach of Vaughan Williams
L.J. in Woolwich Union v. Fulham Union [1906] 2 K.B. 240, 246-
247 that the court is to approach with an open mind and see what the
context demands. Although it is conceded that the court cannot auto-
matically apply the reasoning of judges when considering one statute in
construing another when the statutes are of a different class, nevertheless,
the approach or starting point ought to be the same in each case. The
fact that social circumstances in Bermuda are different from 19th century
England and that there is a high proportion of illegitimate births on the
island should not make any difference to the starting point for construction.
By section 100 (c) of the Immigration and Protection Act 1956
(as renumbered) the illegitimate child of a woman is protected from
deportation but the section does not extend a similar protection to the
illegitimate child of a man: that omission could lead to cases of hardship.
Assuming that Lord Tucker’s approach is right there are no express
words in section 11 (5) (d) and “child” means legitimate child unless
there is a necessary implication from the context that it must include
an illegitimate child. It is clear from the terms’ of section 1 of the322
Min. of Home Affairs y. Fisher (P.C.) [1980]
Constitution that the public interest is one of the factors to be taken
into account -in assessing the content of the fundamental rights and
freedoms. Adopting Lord Tucker’s approach and bearing in mind that
immigration is one of the factors which has to be dealt with in the
public interest there is no necessary implication that “child” must
include an illegitimate child. It may be in the public interest that
illegitimate children should not be allowed to enter Bermuda.
The fact that there may be an unjustified attempt to deport a child
does not assist in construing the Constitution. Lord Tucker's approach
does not go so far as to make it necessary to defy a country’s international
obligations as to the child’s rights. The Constitution provides by section
11 (2) that a person is only entitled to the right of freedom of movement
guaranteed by section 11 if he “belongs to Bermuda.” There may be
other legislation which gives some protection to other classes but the use
of “child” in the Constitution is neutral and notwithstanding that there
is a presumption in favour of rights there is no necessary implication that
the word must include an illegitimate child. Even if Vaughan Williams
L.J.’s test were the right one, where a Constitution does not give rights to
everyone but only to a defined class, an illegitimate child would not be
included when, as here, the objects are neutral. There was a series of
Constitutions in the 1960s. Some (e.g. Antigua) used the expression
“belonging to” and others (¢.g., Jamaica) used “citizens.” The term
used picked up terms in existing legislation but in the case of Bermuda
the draftsman had to invent a list of persons “ belonging to Bermuda”
because they were not defined anywhere else. He had in mind constitu-
tions of other states where the age of majority was 18 and overlooked the
fact that in Bermuda it was still 21. He could have included illegitimate
children but he did not. Where it has been necessary to include illegi-
timate children statutes have done so expressly: see the Immigration Act
1938 and sections 18 (3) and 100 (c) of the Immigration and Protection
Act 1956. If the Court of Appeal is right. that “child” includes an
illegitimate child the Government is concerned at the implications: non-
Bermudian women who do not “ belong” who have illegitimate children
will be able to give the children “ belonger” status by finding a Ber-
mudian husband.
The GEEP ations Declaration of the Rights of the Child 1959 is
not a treaty and has no ay or the other on the construction
of the Constitution. Thi fonvention on Human Rights is not
an aid to the construction or interpretation of a United Kingdom statute
(including the Constitution of Bermuda) unless there is ambiguity in the
statute or uncertainty in the law. If “ child” is ambiguous then a court
may look at the Convention for help: Reg. v. Chief Immigration Officer,
Heathrow Airport, Ex parte Salamat Bibi [1976] 1 W.L.R. 979, 984.
It is conceded that this country is presumed to legislate in harmony with
its international obligations but if the statute is clear there is no need
to look further. :
Georges J.A. in the Court of Appeal was wrong to prefer Vaughan
Williams L.J.’s formulation of the correct approach to statutory con-
struction (Woolwich Union v. Fulham Union [1906] 2 K.B. 240, 246-
247) to that of Lord Tucker in Galloway v. Galloway [1956] A.C. 299,323
AG Min. of Home Affairs v. Fisher (P.C.)
323. He read too much into the’ expression “ technical rule of law”
used by Vaughan Williams L.J. at p. 246 and was wrong to draw a
distinction between status and belonging and in saying that the protection
extended by the Constitution was not limited to those persons having
Bermudian status. He was also too impressed by the dissenting judgment
of Lord Denning M.R. in Sydall vy. Castings Ltd. [1967] 1 Q.B. 302:
the majority judgments of Diplock and Russell L.JJ. are to be preferred.
Duffus J.A. was wrong in drawing a distinction between the Constitution
and an ordinary Act of Parliament and in taking the view that it was
inconceivable that the Constitution should have failed to provide for all
children. The view that it would be inhumane to separate a young
child from its mother is irrelevant in construing the Constitution.
Christopher French Q.C., Julian. E. S. P. Hall (of the Bermuda Bar)
and Narinder Hargun for the mother and her husband. There is no
ambiguity in section 11 (5) (d) of the Constitution and the word “ child”
includes an illegitimate child. But if, contrary to that submission, it is
necessary to consider the context of the Constitution then the legislative
and cultural context as well.as the purpose of section 11 (5) (d) displaces
the prima facie meaning.
It is not an absolute rule of construction of a statute that prima facie
“ child’? means a legitimate child. The technical rule does not apply to
statutes whose purpose is to promote the safety and upbringing of persons
of tender years: see, ¢.g., sections 1 and 2 of the Domestic Violence and
Matrimonial Proceedings Act 1976 and 3 & 4 Wm.°4, c. 103 (Labour of
Children, etc., in factories). In White v. Barratt [1973] 3 W.W.R. 293
the approach of the Supreme Court of Alberta was the reverse of that
contended for by the Ministers. In the social context of Bermuda it is
unlikely that there is a universal rule that “ child” means only a legi-
timate child. In Sydall v. Castings Ltd. [1967] 1 Q.B. 302, 316 Diplock
LJ. was very careful in defining the class of document to which the prima
facie rule of construction applies.
The purpose of section 11) of the Constitution is to promote and
protect the upbringing of persons of tender years (ie., those under 18 who
are owed a duty of parental care by someone who is entitled to reside in
Bermuda). Section 11 is as wide as section 1 of the Constitution. The
use of express words in section 100 (c) of the Immigration and Protection
Act 1956 is not inconsistent with “‘ child ” in section 11 of the Constitution
including an illegitimate child, If illegitimate children had been included
in section 16 of the Act of 1956 an express provision in section 100 would
not have been necessary. The draftsman of the Constitution had the Act
of 1956 in mind and the omission of express words excluding illegitimate
children as used in section 16 (4) (6) of the Act of 1956 was deliberate.
If section 11 (5) (d) of the Constitution is ambiguous a court may use
the European Convention on Human Rights as an aid to construction:
see Reg. V. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat
Bibi [1976] 1 W.L.R. 979. Reliance is placed on articles 8 and 14 of the
Convention and on the United Nations Declaration of the Rights of the
Child 1959: see Jacobs, The European Convention on Human Rights (1975),
pp. 125, 126, 134, 188, 226. The United Kingdom has made a declaration
under article 63 (1) of the Convention covering Bermuda. If under the324
Min. of Home Affairs v. Fisher (P.C.) [1980]
Constitution properly construed the children are not entitled to reside in
Bermuda the fundamental human rights of both the mother and her
husband are infringed because although belonging to Bermuda they are
inhibited in their choice of residence through the state’s interference with
the children of their family.
The Constitution of Bermuda is not strictly entrenched. It may be
altered by an Act of the United Kingdom Parliament.
Hall following. The mother and her husband do not concede that the
Court of Appeal was correct in deciding that the children were not deemed
to possess Bermudian status by reason of their illegitimacy.
Ross-Munro Q.C. in reply. The prima facie meaning applies in sta
tutes relating to the safety and upbringing of a child of tender years: see
Galloway v. Galloway [1956] A.C. 299, 310, per Viscount Simonds.
Although in White v. Barrett [1973] 3 W.W.R. 293 the court appears to
adopt the opposite approach to that contended for, in relation to wills
the prima facie rule is to be applied (see p. 296) and compare In re M.
(An Infant) [1955] 2 Q.B. 479 where Denning L.J.’s aporone aaa
removed from that of Lord Tucker in Galloway v. Galloway.
line of English authorities on which White v. Barrett does not impinge.
A comparison of section 16 (4) of the Immigration and Protection Act 1956
with section 11 (5) of the Constitution merely shows that it would have
been easy to include illegitimate children expressly. It is conceded that
the European Convention on Human Rights applies to Bermuda but since
there is no ambiguity in section 11 (5) (d) of the Constitution it is not
necessary to have recourse to it. Even if there were an ambiguity the
Convention would not be helpful.
Cur. adv. vult.
May 14. The judgment of their Lordships was delivered by Lorp
WILBERFORCE,
This is an appeal from a judgment of the Court of Appeal for
Bermuda, which by a majority (Duffus and Georges JJ.A.; Hogan P.
dissenting) allowed the appeal of the respondents from a judgment of
the Supreme Court of Bermuda (Seaton J.) dated January 6, 1977.
The proceedings relate to the status in Bermuda of four illegitimate
children of Mrs. Eunice Carmeta Fisher (the mother), all under the age of
18. They were born in Jamaica, as was the mother herself. In May 1972
the mother married Mr. Collins MacDonald Fisher (the husband) who
Possessed Bermudian status. As from the date of the marriage the
husband has accepted all four children as children of his family. On
July 31, 1975, the mother came with the four children to take up resi-
dence with the husband in Bermuda; they were admitted by the
immigration authorities, and soon afterwards were placed in state
schools. Following a routine check carried out in the school year 1976-
77 the husband was informed that the Ministry of Labour and
Immigration had refused permission for two of the children to remain
at school, and on October 22, 1976, the ministry informed the mother that
she and the four children must leave Bermuda by October 30, 1976.
Separate legal proceedings (later consolidated) were then started by
both the mother and the husband seeking to establish (i) under the325
AG Min, of Home Affairs v. Fisher (P.C.)
Bermuda Immigration and Protection Act 1956, section 16 (4) that the
four children are “deemed to possess and enjoy Bermudian status”
and (ii) under section 11 (5) (@) of the Constitution of Bermuda that
they “belong to Bermuda ”—the procedural details of these proceedings
are no longer material. At the hearing the Minister of Education gave
an undertaking to reinstate the children in recognised schools in Ber-
muda, and this undertaking has been honoured.
It was decided by Seaton J. in the Supreme Court that (i)
the children were not entitled to Bermudian status because, although
section 16 (4) of the Act of 1956 applied to stepchildren of persons
enjoying Bermudian status, and Mr. Fisher, whose stepchildren they
were, enjoyed that status, the word “stepchild” did not include an
illegitimate child; (ii) that they did not “belong to Bermuda” because
the words “child” and “ stepchild” in section 11 (5) of the Constitution
did not include persons who were illegitimate. On appeal, the Court
of Appeal unanimously upheld the decision of Seaton J. on point ()—
namely that the children were not deemed to enjoy Bermudian status.
On point (ii) the majority held, reversing Seaton J., that the children
belonged to Bermuda. There is no appeal against the decision on
point (i), and the only question left is whether the four children “ belong
to Bermuda” within the meaning of section 11 of the Constitution. The
appellants, the Minister for Home Affairs and the Minister for Educa-
tion, have undertaken in any event to treat the children as if, under
section 100 (c) (as renumbered in 1971) of the Act of 1956, they enjoyed
immunity from deportation. The question therefore for decision is
whether the word “child” in section 11 (5) (d) of the Constitution
includes an illegitimate child. The clause must first be placed in its
context.
The Bermuda Constitution was brought into existence by the
Bermuda Constitution Order 1968 (S.I. 1968 No. 182) made under the
Bermuda Constitution Act 1967 of the United Kingdom. It opens with
Chapter I headed “Protection of Fundamental Rights and Freedoms
of the Individual.” Section 1 reads as follows:
“1, Whereas every person in Bermuda is entitled to fundamental
rights and freedoms of the individual, that is to say, has the right,
whatever his race, place of origin, political opinions, colour, creed
or sex, but subject to respect for the rights and freedoms of others
and for the public interest, to each and all of the following,
namely :— (a) life, liberty, security of the person and the protection
of the law: (6) freedom of conscience, of expression and of assembly
and association; and (c) protection for the privacy of his home
and other property and from deprivation of property without
compensation, the subsequent provisions of this Chapter shall have
effect for the purpose of affording protection to the aforesaid
rights and freedoms subject to such limitations of that protection
as are contained in those provisions, 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.”326
Min. of Home Affairs v. Fisher (P.C.) {1980}
Section 11 deals with freedom of movement; the following subsections
are relevant:
“(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— . . . (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 therefrom
of any such person; . . . (5) For the purposes of this section, a
person shall be deemed to belong to Bermuda if that person—(a)
possesses Bermudian status; . . . (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 18 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 sub-
section applies.”
Thus fundamental rights and freedoms are stated as the right of every
individual, and section 11 is a provision intended to afford protection
to these rights and freedoms, subject to proper limitations. Section 11
states the general rule of freedom of movement, which is to include the
Tight to enter and to reside in any part of Bermuda, but it allows, as
a permissible derogation from this right, restrictions in the case of any
person who does not “belong to Bermuda.” Section 11 (5) then
defines the classes of persons who “belong to Bermuda.” Among these
is “the child of a person to whom any of the foregoing paragraphs
of this subsection applies.” One such person is the wife of a person
who possesses Bermudian status. What is meant, in this context, by
the word “child”?
The meaning to be given to the word “child” in Acts of Parliament
has been the subject of consideration in many reported cases. One
finds in them a number of general statements:
“The law does not contemplate illegitimacy. The proper descrip-
tion of a legitimate child is ‘child.’ Reg. v. Inhabitants of Totley
(1845) 7 Q.B. 596, 600 per Lord Denman C.J.
“... the word ‘child’ in the Act means legitimate child.”
Dickinson v. North-Eastern Railway Co. (1863) 33 L.J.Ex. 91 per
Pollock C.B. similarly in 2 H. & C. 735).
Then, as society and social legislation become more varied, qualifi-
cations come to be made:
“Tt is of course true that that is only prima facie the meaning to
be given to the word, and that a wider meaning may, in the case of327
AG. Min, of Home Affairs v. Fisher (P.C.)
some statutes, be given to it, so as to include an illegitimate child
or illegitimate children, where that meaning is more consonant with
the object of the statute.” Woolwich Union v. Fulham Union
[1906] 2 K.B. 240, 246-247, per Vaughan Williams L.J.
“.. Ido not think it necessary to refer to the authorities which
establish beyond question that prima facie the words ‘child’ or
‘children’ in an Act of Parliament mean a legitimate child or
legitimate children, and that illegitimate children can only be
included by express words or necessary implication from the
context.” Galloway v. Galloway [1956] A.C. 299, 323 per Lord
Tucker.
Founding on these statements, counsel for the appellants took as his
starting point the compound proposition: (a) that we are here concerned
with the interpretation of an Act of Parliament; (b) that in all Acts of
Parliament the word “child” prima facie means “ legitimate child”; (c)
that departure from this meaning is only possible upon the basis indi-
cated in the words used by Vaughan Williams LJ. or upon that
indicated in other words by Lord Tucker. Thus they invited their
Lordships to consider the merits of the two formulae, to prefer that of
Lord Tucker, and in any event to say that the preferred test, or, in
the last resort, either alternative test, was not satisfied as regards the
Constitution of Bermuda. :
Their Lordships approach this line of argument in two stages. In
the first place they. consider that it involves too great a degree of
rigidity to place all Acts of Parliament in one single class or upon the
same level. Acts of Parliament, particularly those involving the use of
the word “child” or “children,” differ greatly in their nature and
subject matter. Leaving aside those Acts which use the word “child”
apart from any relationship to anyone’ (in which cases “child” means
simply a. young person) there is a great difference between Acts con-
cerned with succession to property, with settlement for the purposes of
the Poor Law, with nationality, or with family matters, such as custody
of children.
In cases concerned with the administration of the Poor Law, recog-
nition is given to the existence of “illegitimate children and to their
dependence upon their mother. To this extent their Lordships
respectfully think that Viscount Simonds may have gone too far when
he described the common Jaw of England as not contemplating
illegitimacy and shutting its eyes to the facts of life: Galloway v.
Galloway [1956] A.C. 299, 310-311. Matrimonial law in England has
increasingly diminished the separation of illegitimate from legitimate
children by adoption of the concept “child of the family.” Indeed the
Matrimonial Causes Act 1974, as well as recognising the “child of the
family,” contains a definition of “child,” in relation to one or both of
the parties to a martiage, as including “ an illegitimate or adopted child
of that party-or, as the case may be, of both parties”: section 1 (1).
This is, it is true, by way of express statutory enactment, but the fact that
the: separation is, for many purposes, less sharp than it.'was in the last328
Min. of Home Affairs v. Fisher (P.C.) [1980]
century enables and requires the courts to consider, in each context in which
the distinction between legitimate and illegitimate is sought to be made,
whether, in that context, policy requires its recognition.
In matters of succession, and the same applies to the interpretation
of wills and trust instruments (see Sydall v. Castings Ltd. [1967] 1 QB.
302 per Diplock L.J.), the rule that “child”? means legitimate child is
firmly rooted in the common law and in the sources of the laws of
property, so it has always been insisted that clear words are needed if
illegitimate, or adopted, children are to be treated in the same way as
legitimate children. Instances of such clear words are becoming more
frequent in modern legislation. But even without such clear words in
a statute, a movement towards a biological interpretation of the word
“child,” even in this context, is appearing: see Brule v. Plummer
(unreported), January 23, 1979, Supreme Court of Canada.
In nationality Acts, which provide for acquisition of nationality by
descent, the assumption is a strong one that “child” means legitimate
child: the fact that such Acts often contain a definition to this effect,
and provide expressly for exceptions, for example in favouring legiti-
mated, or illegitimate, children, does not detract from the strength of
this rule. In Bermuda, the Bermuda Immigration and Protection Act 1956
proceeds on this basis, referring in certain places section 16 (4), 100
(c) to legitimated or illegitimate children; and it was the existence of
these express exceptions, coupled with the general rule, that led both
courts below to conclude that “ stepchild,” in section 16 (4) (6), did not
include the illegitimate child of a Bermudian man’s wife.
So far the discussion has been related to Acts of Parliament con-
cerned with specific subjects. Here, however, we are concerned with a
Constitution, brought into force certainly by Act of Parliament, the
Bermuda Constitution Act 1967 United Kingdom, but established by a
self-contained document set out in Schedule 2 to the Bermuda Constitu-
tion Order 1968 (United Kingdom S.I. 1968 No. 182). It can be seen
that this instrument has certain special characteristics. 1. It is,
particularly in Chapter I, drafted in a broad and ample style which lays
down principles of width and generality. 2. Chapter I is headed
“Protection of Fundamental Rights and Freedoms of the Individual.”
It is known that this chapter, as similar portions of other constitutional
instruments drafted in the post-colonial period, starting with the
Constitution of Nigeria, and including the Constitutions of most
Caribbean territories, was greatly influenced by the European Convention
for the Protection of Human Rights and Fundamental Freedoms (1953)
(Cmd. 8969). That Convention was signed and ratified by the United
Kingdom and applied to dependent territories including Bermuda. It
was in turn influenced by the United Nations’ Universal Declaration
“of Human Rights of 1948. These antecedents, and the form of Chapter
J itself, call for a generous interpretation avoiding what has been called
“the austerity of tabulated legalism,” suitable to give to individuals the
full measure of the fundamental rights and freedoms referred to. 3.
Section 11 of the Constitution forms part of Chapter I. It is thus to
“have effect for the purpose of affording protection to the aforesaid329
AG. Min, of Home Affairs v. Fisher (P.C.)
tights and freedoms” subject only to such limitations contained in it
“being limitations designed to ensure that the enjoyment of the said
rights and freedoms by any individual does not prejudice . . . the public
interest.”
When therefore it becomes necessary to interpret “the subsequent
provisions of” Chapter I—in this case section 11—the question must
inevitably be asked whether the appellants’ premise, fundamental to
their argument, that these provisions are to be construed in the manner
and according to the rules which apply to Acts of Parliament, is sound.
In their Lordships’ view there are two possible answers to this. .The
first would be to say that, recognising the status of the Constitution as,
in effect, an Act of Parliament, there is room for interpreting it with less
rigidity, and greater generosity, than other Acts, such as those which are
concerned with property, or succession, or citizenship. On the particular
question this would require the court to accept as a starting point the
general presumption that “child” means “legitimate child” but to
recognise that this presumption may be more easily displaced. The
second would be more radical: it would be to treat a constitutional
instrument such as this as sui generis, calling for principles of interpre-
tation of its own, suitable to its character as already described, without
necessary acceptance of all the presumptions that are relevant to
legislation of private law.
It is possible that, as regards the question now for decision, either
method would lead to the same result. But their Lordships prefer the
second. This is in no way to say that there are no rules of law which
should apply to the interpretation of a Constitution. A Constitution
is a legal instrument giving rise, amongst other things, to individual
rights capable of enforcement in a court of law. Respect must be paid
to the language which has been used and to the traditions and usages
which have given meaning to that language. It is quite consistent with
this, and with the recognition that rules of interpretation may apply, to
take as a point of departure for the process of interpretation a recogni-
tion of the character and origin of the instrument, and to be guided by
the principle of giving full recognition and effect to those fundamental
rights and freedoms with a statement of which the Constitution
commences. In their Lordships’ opinion this must mean approaching the
question what is meant by “child” with an open mind. Prima facie, the
stated rights and freedoms are those of “ every person in Bermuda.” This
generality underlies the whole of Chapter I which, by contrast with the
Bermuda Immigration and Protection Act 1956, contains no reference to
legitimacy, or illegitimacy, anywhere in its provisions. When one is con-
sidering the permissible limitations upon those rights in the public interest,
the right question to ask is whether there is any reason to suppose that in
this context, exceptionally, matters of birth, in the particular society of
which Bermuda consists, are regarded as relevant.
Section 11 opens with a general declaration of the right of freedom of
movement, including that of residence, entry and immunity from expulsion.
These rights may be limited [section 11 (2) (d)] in the case of persons
“not [belonging] to Bermuda ”—a test not identical with that of citizen-330
Min. of Home Affairs v. Fisher (P.C.) (19801
‘ship, but a social test. Then, among those deemed to belong to Bermuda
are (section 11 (5)) a person who
“(@) possesses Bermudian status; . . . (c) is the wife of [such a
person]; or (d) is under the age of 18 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.”
In their Lordships’ opinion, paragraph (d) in its context amounts to a
clear recognition of the unity of the family as a group and acceptance of the
principle that young children should not be separated from a group which
as a whole belongs to Bermuda. This would be fully in line with article
8 of the European Convention on Human Rights and Fundamental Free-
doms (respect for family life), decisions on which have recognised the family
unit and the right to protection of illegitimate children. Moreover the
draftsman of the Constitution must have had in mind (a) the United
Nations’ Declaration of the Rights of the Child adopted by resolution
(1386 (xiv) ) on November 29, 1959, which contains the words in principle
6: .
“ [the child] shall, wherever possible, grow up in the care and under
the responsibility of his parents . . . a child of tender years shall not,
save in exceptional circumstances, be separated from his mother.”
and (b) article 24 of the International Covenant on Civil and Political
Rights 1966 which guarantees protection to every child without any dis-
crimination as to birth. Though these instruments at the date of the
Constitution had no legal force, they can certainly not be disregarded as
influences upon legislative policy.
Their Lordships consider that the force of these arguments, based
purely upon the Constitution itself, is such as to compel the conclusion
that “child” bears an unrestricted meaning. In theory, the Constitution
might contain express words forcing a contrary conclusion, though given
the manner in which Constitutions of this style were enacted and adopted,
the possibility seems remote. But, in fact, their Lordships consider it most
unlikely that the draftsman being aware, as he must have been, of the pro-
visions of the Bermuda Immigration and Protection Act 1956, could have
intended a limitation of the word “child” to legitimate children. In the
first place, if he had intended this limitation, he must surely, following
the example of the Act of 1956, have felt it necessary to spell it out. In
the second place the concept of “belonging” of itself suggests the inclu-
sion of a wider class: yet if the appellants are right, those described under
section 11 (5) (d) of the Constitution would largely coincide with persons
having, or deemed to have, Bermudian status. Thirdly, under section
100 of the Act of 1956, these illegitimate children would enjoy immunity
from deportation until they were 21. It seems most unlikely that such
children should not be treated as “belonging to Bermuda” or that a
stricter test—in respect of their right to freedom of movement—should
‘be imposed on such children under section 11 of the Constitution than is
imposed: under the earlier Act. Their Lordships fully agree with the
majority of the Court of Appeal in regarding thése points as significant
although they prefer to base their judgment on wider grounds. :331
AG Min. of Home Affairs v. Fisher (P.C.)
Their Lordships are therefore of opinion that the judgments of the
majority of the Court of Appeal are right and accordingly they will
humbly advise Her Majesty that the appeal be dismissed. The appellants
must pay the respondents’ costs of the appeal.
Solicitors: Charles Russell & Co.; Hewitt, Woollacott & Chown.
T.J.M.
[privy councit]
ENG MEE YONG anp Ornerns . = 2 2. SS APPELLANTS
AND
V. LETCHUMANAN s/o VELAYUTHAM. : RESPONDENTS-
[APPEAL FROM THE FEDERAL COURT OF MALAYSIA]
1979 Feb. 14, 15; Lord Diplock, Lord Morris of Borth-y-Gest,
April 4 Lord Hailsham of St. Marylebone,
Lord Edmund-Davies and
Lord Fraser of Tullybelton
Malaysia—Land—Registration of title—Private caveat—Registered
proprietors’ application to remove caveat—Conflicting affidavit
evidence —Caveator’s evidence lacking credibility — Whether
order to remove caveat from register justified—National Land
Code (No. 56 of 1965), s. 327
The caveatees were the registered proprietors of land. The
caveator was 4 purchaser of the land who had defaulted on the
final payment of the purchase price on the date due under the
terms of the written contract with the caveatees as vendors.
On that default the caveatees had served notice on the caveator
terminating the contract for breach. The caveator started an
action for specific performance of the contract and entered a
private caveat on the register to the extent of a whole share.
The caveatees applied to the High Court under section 327
of the National Land Code’ for the removal of the caveat.
‘They supported their application by an affidavit exhibiting the
written contract of sale. The caveator also filed an affidavit
which contained assertions which conflicted with that of the
caveatees and also with the terms of the written contract. The
judge rejected the conflicting assertions made by the caveator
as false, inadmissible and unlikely, and he ordered the removal
of the caveat. The caveator appealed to the Federal Court
which set aside the judge’s order on the ground that once the
caveator had asserted that the contract of sale had not been
1 National Land Code, s. 327: (1) Any person or body aggrieved by the existence
of a private caveat may at any time apply to the court for an order for its removal,
and the court (acting, if the circumstances so require, ex parte) may make such order
on the application as it may think just.”