CCJ hands down land­mark rul­ing - AG in Belize can sue for­mer gov’t min­is­ters

The Star (St. Lucia) - - LOCAL -

The Caribbean Court of Jus­tice (CCJ) has ruled in favour of the at­tor­ney gen­eral in Belize tak­ing le­gal ac­tion against two for­mer gov­ern­ment min­is­ters for losses suf­fered by the state as a re­sult of mis­fea­sance.

The five-mem­ber Court in a joint judg­ment said it did not share the view of coun­sel for the ap­pel­lants that “recog­ni­tion of a right in the at­tor­ney gen­eral to sue in the tort of mis­fea­sance would lead to the un­leash­ing of po­lit­i­cal vendet­tas in Belize”.

The Belize gov­ern­ment filed the law­suit against for­mer min­is­ters Floren­cio Marin and Jose Coye, seek­ing to re­cover BZ$924,056.60 (US$473,923) plus ex­em­plary dam­ages, which the Dean Bar­row gov­ern­ment claims was lost in the sale of lands be­low mar­ket price by the pre­vi­ous ad­min­is­tra­tion.

The Min­istry of Nat­u­ral Re­sources ac­cused the two of con­duct un­be­com­ing of gov­ern­ment of­fi­cials while in of­fice, dur­ing the ten­ure of for­mer Prime Min­is­ter Said Musa.

The law­suit al­leges that the two men 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, which is lo­cated in the West Lan­di­var area of Belize City, was once owned by the Uni­ver­sity of Belize. The land re­port­edly was sold to the gov­ern­ment of Belize un­der the Musa ad­min­is­tra­tion for far more than was paid by the pri­vate de­vel­oper.

But Cove and Marin were ask­ing the CCJ, which was es­tab­lished in 2001 to re­place the Lon­don-based Privy Coun­cil as the re­gion’s fi­nal court, “whether the at­tor­ney gen­eral is com­pe­tent to in­sti­tute an ac­tion against for­mer min­is­ters claim­ing dam­ages for mis­fea­sance in pub­lic of­fice”.

The case was first heard be­fore Belize’s Chief Jus­tice Con­teh who ruled that the at­tor­ney gen­eral, a quintessen­tially pub­lic of­fi­cer, com­plains about abuse by an­other pub­lic of­fi­cer and should not seek re­course in the torts of civil courts. But the at­tor­ney gen­eral ap­pealed the rul­ing and the Belize Supreme Court over­turned the Chief Jus­tice’s rul­ing.

Jus­tices Jacob Wit, De­siree Bernard and Win­ston An­der­son said that they agreed with the fi­nal con­clu­sion of the Court of Ap­peal in Belize that the State can sue the ap­pel­lants for mis­fea­sance in pub­lic of­fice.

Jus­tice An­der­son in his writ­ten judge­ment said he con­cedes “that an ac­tion of the kind ini­ti­ated by the at­tor­ney gen­eral in this case is un­prece­dented and that from one per­spec­tive cen­turies of foren­sic thought and as­sump­tions could be taken to lean against his pro­ceed­ing.

“I equally ad­mit that to al­low this suit could have sig­nif­i­cant im­pli­ca­tions for the role of the State in the law of torts. To recog­nise com­pe­tence in the at­tor­ney gen­eral to bring this suit nat­u­rally raises the prospect of the Crown su­ing, pos­si­bly as 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 a suf­fi­cient rea­son to deny the logic of the de­vel­op­ments in the tort of mis­fea­sance in pub­lic of­fice which have in this case con­verged with the evo­lu­tion of the cor­po­rate na­ture of the State in the law of torts.

“To the con­trary, th­ese de­vel­op­ments may well por­tend the wel­come emer­gence of a new ma­trix of causes of ac­tion hith­erto frozen in their his­tor­i­cal crypts and now an­i­mated by ju­di­cial im­pri­matur.”

Jus­tice Bernard said there is no doubt that crim­i­nal pros­e­cu­tion will send a strong mes­sage to pub­lic of­fi­cers who utilise 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 pros­e­cu­tions, 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.

“In any event, the at­tor­ney gen­eral may be more con­cerned with re­cov­er­ing loss to the pub­lic purse which, in this case, is the eco­nomic value of the na­tional lands amount­ing to BZ$924,056.”

She said that the novelty of the State be­ing ca­pa­ble of su­ing un­der the tort is by no means fa­tal, “but 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 a 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 fi­nan­cial gain.”

In their joint judge­ment, pres­i­dent of the CCJ, Michael De la Bastide and Jus­tice Adrian Saunders said al­low­ing the State to pur­sue tor­tious mis­fea­sance in cases such as al­leged has the ef­fect of as­crib­ing the same le­gal con­se­quence to qual­i­ta­tively dif­fer­ent vi­o­la­tions.

“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 the 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,” they said.

In ad­di­tion, 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 mis­be­haviour 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 the main­te­nance of pro­bity by pub­lic of­fi­cials. Quite the con­trary, it has the op­po­site ef­fect. It of­fers the mis­cre­ant the softer op­tion of civil li­a­bil­ity.”

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