CCJ: Pros­e­cute Crooked Govern­ment Min­is­ters!

The Star (St. Lucia) - - FRONT PAGE - By Rick Wayne

Sev­eral weeks ago I hap­pened upon a 2011 on­line re­port by the Ja­maica Gleaner en­ti­tled CCJ Hands Down Land­mark Rul­ing: Gives Go-Ahead For AG To Sue For­mer Govern­ment

Min­is­ters. The story be­gan with the five-mem­ber court’s joint judg­ment that it did not share the ap­pel­lants’ view that “recog­ni­tion of a right in the at­tor­ney to sue in tort of mis­fea­sance would lead to the un­leash­ing of po­lit­i­cal vendet­tas in Belize.” The Belize govern­ment had filed a law­suit against for­mer min­is­ters, Floren­cio Marin and Jose Coye, seek­ing to re­cover US$473,923 plus ex­em­plary dam­ages, which the Dean Bar­row govern­ment claimed was lost in the sale of lands be­low mar­ket price value by the pre­vi­ous ad­min­is­tra­tion. The Min­istry of Nat­u­ral Re­sources ac­cused the two for­mer min­is­ters of con­duct un­be­com­ing of govern­ment of­fi­cials while in of­fice dur­ing the ten­ure of for­mer prime min­is­ter Said Musa.

The suit al­leged the two of­fi­cials sold 57 pieces of prime govern­ment lots to a pri­vate com­pany, which re­sulted in the loss of hun­dreds of thou­sands of dol­lars to tax­pay­ers. The land, once owned by the Univer­sity of Belize, was re­port­edly sold to the govern­ment of Belize un­der the Musa ad­min­is­tra­tion for far more than was paid by a pri­vate owner. The case was first heard be­fore the Belize Chief Jus­tice Con­teh, who ruled that the at­tor­ney gen­eral’s com­plaint about abuse by an­other pub­lic of­fi­cer should not seek re­course in the torts of civil courts. The AG ap­pealed the rul­ing and the Belize Supreme Court over­turned the Chief Jus­tice’s rul­ing.

Jus­tices Ja­cob Wit, De­siree Bernard and Win­ston An­der­son said they agreed with the fi­nal con­clu­sion of the Court of Ap­peal of Belize that the state can sue the ap­pel­lants for mis­fea­sance in pub­lic of­fice. Jus­tice An­der­son in his writ­ten judg­ment said he con­cedes that “an ac­tion of the kind ini­ti­ated by the at­tor­ney gen­eral in the case is un­prece­dented and that from one per­spec­tive cen­turies of foren­sic thought and as­sump­tions could be taken to lean against pro­ceed­ing.” On the other hand, he equally ad­mit­ted that to al­low the suit could have sig­nif­i­cant im­pli­ca­tions for the role of the State in the law of torts. To rec­og­nize com­pe­tence in the at­tor­ney gen­eral to bring this suit nat­u­rally raises the prospect of the Crown su­ing, pos­si­bly as parens pa­triae, in a host of other torts in­clud­ing tres­pass, nui­sance and neg­li­gence.

“These are mat­ters for an­other day. What to my mind is presently ob­vi­ous is that none of these con­ces­sions can be suf­fi­cient rea­son to deny the logic of de­vel­op­ments in the tort of mis­fea­sance in pub­lic of­fice which in this case con­verged with the evo­lu­tion of the cor­po­rate na­ture of the State in the law of torts.”

Jus­tice Bernard said there was no doubt that crim­i­nal pros­e­cu­tion will send a strong mes­sage to pub­lic of­fi­cers who uti­lize pow­ers en­trusted to them for their own ben­e­fit, and which re­sult in fi­nan­cial loss to the State. These op­tions of crim­i­nal pros­e­cu­tion, how­ever, are not within the re­mit of the at­tor­ney gen­eral but solely the func­tion of the direc­tor of pub­lic pros­e­cu­tion, as pro­vided for in Sec­tion 50 of the Belize Con­sti­tu­tion and which shall not be sub­ject to the di­rec­tion or con­trol of any other per­son or au­thor­ity.

Jus­tice Bernard said the novelty of the State be­ing ca­pa­ble of su­ing un­der the tort is by no means fa­tal, “but it just widens the cat­e­gory of those en­ti­tled to sue for abuse of power by a pub­lic of­fi­cer as has been done be­fore pro­vided there is suf­fi­cient in­ter­est to found stand­ing and eco­nomic loss has been es­tab­lished. At the end of the day it is the duty of the at­tor­ney gen­eral to pre­serve the pat­ri­mony of Belize by re­cov­er­ing fi­nan­cial loss from those al­legedly re­spon­si­ble for un­der­valu­ing na­tional lands in their quest for per­sonal gain.” In their joint judg­ment for­mer pres­i­dent of the CCJ Michael de la Bastide and Jus­tice Adrian Saun­ders said al­low­ing the State to pur­sue tor­tu­ous mis­fea­sance in cases such as al­leged has the ef­fect of as­crib­ing the same le­gal con­se­quence to qual­i­ta­tively dif­fer­ent vi­o­la­tions.

They said: “The cor­rupt acts of a pub­lic of­fi­cer that cause ma­te­rial da­m­age to the State are placed on the same level, weighed in the same scales and af­forded the same re­dress as abuse of of­fice caus­ing ma­te­rial da­m­age to pri­vate en­ti­ties. It is not un­usual for the law to as­sess obli­ga­tions to and by the State dif­fer­ently from those be­tween cit­i­zens. The sim­i­lar treat­ment ac­corded here re­duces the grav­ity of fidu­ciary obli­ga­tions owed by pub­lic ser­vants to­ward the State, flies in the face of the re­solve of par­lia­ment and un­der­mines the in­ter­na­tional com­mit­ments un­der­taken by the State of Belize.”

Ad­di­tion­ally, the two CCJ judges said pub­lic wrongs should nor­mally at­tract pub­lic sanc­tions and that cor­rupt acts ought to be dealt with by pun­ish­ing the per­pe­tra­tor.

“When al­le­ga­tions are made that a min­is­ter has mis­be­haved in of­fice and the mis­be­hav­ior oc­ca­sions sig­nif­i­cant and fore­seen eco­nomic loss to the State and cor­re­spond­ing per­sonal gain to the min­is­ter and/ or his com­pany, it is in the pub­lic in­ter­est that crim­i­nal pro­ceed­ings be in­sti­tuted. The fail­ure to de­tect, in­ves­ti­gate, pros­e­cute and pun­ish cor­rup­tion has a cor­ro­sive im­pact on democ­racy and the rule of law. We un­der­es­ti­mate at our peril the de­gree to which such fail­ure af­fords en­cour­age­ment to the crim­i­nal el­e­ment in so­ci­ety and con­trib­utes to bur­geon­ing crime rates.

“Ex­tend­ing the tort of mis­fea­sance un­nec­es­sar­ily to give the at­tor­ney gen­eral an­other choice of civil reme­dies does not strike a blow for main­te­nance of pro­bity of pub­lic of­fi­cials. Quite the con­trary, it has the op­po­site ef­fect. It of­fers the mis­cre­ant the softer op­tion of civil li­a­bil­ity.”

NEXT IS­SUE: The CCJ Hands Down Its Judg­ment.

For­mer Pres­i­dent of the CCJ Michael de la Bastide.

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