Bartholomew Jones v The Security Services Commission

• Jurisdiction: Belize
• Judge: Chabot, J.
• Judgment Date: 01 November 2023
• Court: Supreme Court (Belize)
• Year: 2023
• Docket Number: CLAIM No. CV 318 of 2023

Between:

Bartholomew Jones

Applicant

and

The Security Services Commission

Respondent

CLAIM No. CV 318 of 2023

IN THE HIGH COURT OF BELIZE

Appearances:

William A. Lindo for the Applicant

Jarvis Lou and Stanley Grinage for the Respondent

RULING ON APPLICATION FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW

Chabot, J.

1 The applicant, Bartholomew Jones (“Mr. Jones”), applies for permission to apply for the judicial review of the decision of the Security Services Commission (the “Commission”) to promote Dr. Anthony Rosado (“Dr. Rosado”) to the post of Deputy Commissioner of Police with effect from the 1 ^st July 2021.

2 Mr. Jones seeks the following orders:

• 1. That the Applicant be granted leave for permission to apply for judicial review for an order of certiorari to quash the specific portion of the decision of the Respondent made on the 14 ^th March, 2023 (limited to the date of promotion) in which Dr. Anthony Rosado was promoted to the post of Deputy Commissioner of Police with effect from the 1 ^st July, 2021;

• 2. A declaration that the decision of the Respondent to promote Dr. Anthony Rosado to the post of Deputy Commissioner of Police with effect from the 1 ^st July, 2021 is a nullity as there was no vacant post of Deputy Commissioner of Police which existed on the 1 ^st July, 2021 and Dr. Rosado did not qualify for promotion as at the 1 ^st July, 2021;

• 3. A declaration that the decision of the Respondent to promote Dr. Anthony Rosado with effect from the 1 ^st July, 2021, being some six months ahead of the date of the Applicant's promotion date, without first giving him an indication as to why Dr. Anthony Rosado was being promoted ahead of him and an opportunity to make representations was in breach of natural justice and the Applicant's Constitutional Rights to due process and equal protection of the law as guaranteed by section 6 of the Belize Constitution;

• 4. A declaration that the Respondent took extraneous matters into account and acted contrary to the request of the Commissioner of Police to have Dr. Anthony Rosado promoted with effect from the 1 ^st July, 2022;

• 5. Damages, including vindicatory damages, in such measure as this Honourable Court deems just for the breach of the Applicant's Constitutional Rights; and

• 6. The costs of this Application be costs in the cause.

3 The Commission objects to permission being granted on the basis that Mr. Jones has no arguable case with any realistic prospect of success. The Commission also argues that this court does not have the jurisdiction to judicially review a decision of the Governor General.

4 For the reasons outlined in this ruling, Mr. Jones is granted permission to apply for judicial review.

Background

5 The factual background to this application is undisputed. Mr. Jones and Dr. Rosado are both members of the Belize Police Department (the “Department”). Mr. Jones joined the Department on 1 ^st July 1991. Dr. Rosado joined the Department in 1995. Both officers have performed their functions satisfactorily, and they both have steadily risen through the ranks.

6 Mr. Jones was promoted to the post of Assistant Deputy Commissioner of Police on 19 ^th February 2019. On 14 ^th March 2023, he was promoted to the post of Acting Deputy Commissioner of Police with effect from 1 ^st January 2022.

7 Dr. Rosado was promoted to the post of Acting Assistant Deputy Commissioner of Police with effect from 1 ^st July 2020. On 8 ^th February 2022, Dr. Rosado's promotion to the post of Assistant Deputy Commissioner of Police was confirmed with effect from 1 ^st July 2020. On the same day, he was also appointed to the post of Acting Deputy Commissioner of Police with effect from 1 ^st July 2021.

8 On 23 ^rd January 2023, the Commissioner of Police wrote to the Chief Executive Officer of the Ministry of Home Affairs and New Growth Industries to recommend the promotion of Dr. Rosado to the post of Deputy Commissioner of Police with effect from 1 ^st July 2022. On 15 ^th February 2023, he wrote a similar Memorandum to the Chief Executive Officer of the Ministry of the Public Service, Constitutional & Political Reform and Religious Affairs recommending the promotion of Dr. Rosado with effect from 1 ^st July 2022. In a Memorandum dated 15 ^th February 2023, the Chief Executive Officer of the Ministry of Home Affairs and New Growth Industries recommended to the Chief Executive Officer of the Ministry of the Public Service, Constitutional & Political Reform and Religious Affairs, the promotion of Dr. Rosado with effect from 1 ^st July 2021.

9 On 23 ^rd March 2023, the Commission wrote to both Dr. Rosado and Mr. Jones separately to inform them that the Governor General, acting on the advice of the Commission, had approved their respective promotions to the post of Deputy Commissioner of Police. Mr. Jones' effective promotion date was stated to be 1 ^st January 2022, while Dr. Rosado's effective promotion date was stated to be 1 ^st July 2021. Mr. Jones received the correspondence informing him of his promotion on 8 ^th May 2023.

Legal Framework

10 Rule 56.3 of the Supreme Court ( Civil Procedure) Rules, 2005 (“CPR”) requires a person wishing to apply for judicial review to first obtain permission from this Court. Under CPR 56.2, an application for judicial review may be made by any person, group or body which has sufficient interest in the subject matter of the application. The first step in the analysis is therefore to determine whether the applicant has the required interest to seek judicial review.

11 The second step in the analysis is concerned with the application itself. In Sharma v Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago), 1 the Privy Council laid out what is now referred to as the “usual test” 2 for permission to apply for judicial review:

(4) The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, para 62, in a passage applicable mutatis mutandis to arguability:

“… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to “justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen”: Matalulu v Director of Public Prosecutions [2003] 4 LRC 712, 733 [italics in original],

12 For permission to apply for judicial review to be granted, therefore, an applicant must satisfy the court that she or he has an arguable case having a realistic prospect of success. The court must also be satisfied that no discretionary bar, such as delay or an alternative remedy, applies to the

case. The threshold to be met under the Sharma test is considered to be low, 3 “at a height which is necessary only to avoid abuse”. 4

13 In this matter, the Commission raised, as a preliminary issue of law, the jurisdiction of this court to deal with this application. It also raised a procedural issue in respect of the affidavits filed by Mr. Jones. These preliminary issues will be dealt with first.

Preliminary Issues

Jurisdiction and ouster clause

14 Dr. Rosado was promoted to the post of Deputy Commissioner of Police by the Governor General, on the recommendation of the Commissioner of Police and on the advice of the Commission. The Commission argues that the promotion cannot be enquired into by any court of law in Belize. Section 34(4) of the Belize Constitution provides as follows:

34(4) Where by this Constitution the Governor-General is required to perform any function in accordance with the advice of, or after consultation with, any person or authority, the question whether the Governor-General has so exercised that function shall not be enquired into by any court of law.

15 I decline to make a finding that the court does not have the jurisdiction to hear this matter at this time. It is acknowledged by both parties that an ouster clause in a constitution is not an absolute ouster of the court's jurisdiction. In The Attorney General et al. v Jeffrey Joseph, Lennox Boyce, 5 the Caribbean Court of Justice (“CCJ”) considered an ouster clause in the Barbados Constitution which bears similarities with section 34(4) of the Belize Constitution. The CCJ held that such a clause does not prevent courts from inquiring into the manner with which a constitutional body has performed its functions:

[40] Mr. Forde also urged us, in his written submissions, to give effect to the ouster clause contained in section 77(4) of the Constitution. That clause, in our view, provides no comfort to the Crown. Ever since the House of Lords decision in Anisminic v Foreign Compensation Commission, courts have made it clear that they will not be deterred by the presence...