Belize Sugar Industries Ltd v Attorney General of Belize

• Jurisdiction: Belize
• Judge: Madam Justice Patricia Farnese
• Judgment Date: 24 February 2023
• Docket Number: Claim No. 215 of 2022
• Court: Supreme Court (Belize)

BETWEEN

Belize Sugar Industries Limited

1 ^st Claimant

Russel Navarro

2 ^nd Claimant

and

Attorney General of Belize

Defendant

Before

the Honourable Madam Justice Patricia Farnese

Claim No. 215 of 2022

IN THE HIGH COURT OF BELIZE, A.D. 2023

Appearances:

Godfrey P. Smith, SC and Hector D. Guerra, Counsel for the Claimants

Samantha Matute, Asst. Sol. Gen. and Alea Gomez, Counsel for the Defendant

DECISION ON CONSTITUTIONALITY OF CERTAIN PROVISIONS OF THE SUGAR INDUSTRY ACT

1 Introduction

1 Belize Sugar Industries Ltd. (BSI) and Mr. Russel Navarro seek declarations that certain provisions of the Sugar Industry Act 1 that regulate their private contractual interests are null and void because the provisions are discriminatory and violate their constitutional rights to equal protection, to work, and to free association.

BSI also claims that the requirements to pay annual levies to the Sugar Industry Control Board (SICB) and an export levy violate their right to property. The Attorney General of Belize (AG) disagrees and argues that if any violation exists, the violation is reasonably justified as the provisions are in the public interest. The sugar industry is of fundamental social and economic importance to Belize

2 I find that certain provisions of the Sugar Act violate BSI and Mr. Navarro's constitutional rights. In reaching my decision, I have declined to expand the law in three ways proposed by the Claimants. First, discrimination based on place of origin does not occur when a law differentiates between persons based on where they reside within a country. Discrimination based on place of origin has only been found in cases where the discriminatory treatment was connected to the claimant's ethnicity or nationality. Those circumstances do not apply to this case.

3 Second, outside of situations where access and procedural rights have been denied, a violation of the right to equal protection of the law will only be found if two conditions are met. Equal protection can be invoked to remedy circumstances where (1) the government had a duty to act to prevent the breach of another fundamental right and failed to do so and, (2) meaningful redress or remedy for that breach is unavailable. The Claimants have not established that those two conditions have been met. Consequently, BSI and Mr. Navarro have not established a prima facie case that the Sugar Act is discriminatory and violates their rights to equal protection of the law because the Sugar Act treats them differently than cane producers and a manufacturer located in western Belize.

4 Third, the right to work protects the opportunity to work. A violation occurs when a person is prevented from making a living or freely pursuing a livelihood in their chosen field in a manner that is an affront to their inherent dignity. The mere interference with a person's opportunity to work and the freedom to contract does not result in a denial of that opportunity and is not a violation of the right to work. BSI has failed to demonstrate a prima facie case that their right to work has been violated by provisions in the Sugar Act that impose a quota on BSI's cane purchases from the Orange Walk and Corozal regions, that set the date for grinding season, and that purport to impose geographical restrictions on from whom and where they can purchase cane. Mr. Navarro has similarly failed to overcome the presumption of the constitutionality of corollary regulations aimed at to whom and where he can sell cane.

5 However, I find that Mr. Navarro's constitutional rights to work and to free association have been violated by de facto registration requirements found in sections 17, 19, and 20 of the Sugar Act. These requirements prevent Mr. Navarro from delivering cane unless he is on the cane register. The Sugar Act provides no mechanism to be placed on the register other than through membership in an association of cane farmers. Provisions that allow for revocation of membership are also violations of the rights to work and of association. BSI, however, has not demonstrated that these requirements violated their constitutional rights.

6 Finally, BSI has proven that levies it is required to pay under sections 10 and 31 of the Sugar Act are an unconstitutional deprivation of their right to property under subsection 3(d) and section 17 of the Belize Constitution. 2 BSI, however, has not proven on a balance of probabilities that they have paid the export levy provided for under sections 67 and 68 of the Sugar Act. Thus, I am unable to conclude that there has been a deprivation of property.

2 Legal Framework for Assessing Constitutionality

2.1 The Nature of the Right

7 The first step in determining whether the Sugar Act violates any of the Claimants' constitutional rights is “to examine the nature, content, and meaning of the right.” 3 BSI and Mr. Navarro allege violations of their rights to work, freedom of association, equal protection of the law, and freedom from discrimination. BSI also claims that the Sugar Act violates their right to property.

2.2 Presumption of Constitutionality

8 Provisions of the Sugar Act can be found ultra vires because their form (on their face) or their implementation is a violation of the Constitution. The Parties agree that the Claimants have the burden to overcome the presumption that the Sugar Act does not violate the Constitution. In their oral submissions, the AG encouraged this Court to recognize that the burden to overcome the presumption of constitutionality is “a heavy one.” 4 The Privy Council has held that the presumption will only be rebutted where the invalidity is “clear, complete and unmistakable…so clear as to be free from doubt,” 5 or “so arbitrary.” 6

9 The characterization of the burden to overcome the presumption of constitutionality as “heavy,” however, refers to a canon of construction that means if a law is capable of two interpretations, the court ought to adopt the interpretation that does not offend the Constitution. 7 The court “will refrain from striking it down if the court can bring the provision into conformity with the Constitution by making reasonable adaptations, additions or modifications to the provision.” 8 Where the Constitution provides for exceptions to the protection of rights, those exceptions must be narrowly interpreted to avoid eroding the substance of the fundamental rights protected. 9

10 The presumption of constitutionality as a burden of proof, on the other hand, merely requires proof on a balance of probabilities. 10 This less taxing burden has been applied in Belize when the Caribbean Court of Justice (CCJ) held that the party alleging unconstitutionality has the burden to establish “at least a prima facie transgression.” 11 For the Court to be able to find that any aspect of the Sugar Act is unconstitutional, the transgression of a claimant's constitutional right must not be “merely indirect, incidental or consequential.” 12

2.3Justification/Proportionality

11 If the Claimants prove a prima facie case of a violation, the onus shifts to the AG to present clear evidence that the breach of the constitutional right is justified. This shift reflects that the AG is in the best position to aid the court: 13

The state has access to the information giving rise to policy decisions in the interests of the public and it makes good sense that it should bear the burden of establishing a measure is justified. The state should not require the court to speculate about the considerations that give rise to justification.

12 The fundamental rights and freedoms protected by the Constitution are:

…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 person does not prejudice the rights and freedoms of others or the public interest. 14

Therefore, a violation can only be justified on the grounds that the law is in the public interest or is necessary to protect the rights and freedoms of others. 15

13 The articulation of the proportionality test from the Canadian case of R v. Oakes 16 has been adapted and applied in the Commonwealth Caribbean to determine if a violation is justified: 17

• 1. The law must be directed at a proper purpose that is sufficiently important to warrant overriding fundamental rights or freedoms;

• 2. The measures adopted must be carefully designed to achieve the objective in question, that is to say rationally connected to the objective which means that the measures are capable of realizing the objective. If they are not so capable, then they are arbitrary, unfair or based on irrational considerations;

• 3. The means used to achieve the objective must violate the right as little as possible;

• 4. There must be proportionality between the effects of the measures limiting the right and the objective that has been identified as sufficiently important, that is to say, the benefit arising from the violation must be greater than the harm to the right.

14 The test for proportionality has been described as requiring that “the nature and extent of the State's interference with the exercise of the right…must be proportionate to the goal it seeks to achieve..” 18 The test to justify the infringement imports “a high standard of accountability” because these rights are enshrined in the Constitution as a guarantee and means of their protection. 19 Laws that interfere with constitutional rights are intended to be the exception.

2.3.1 Equal Protection of the Law

16 BSI and Mr. Navarro have asserted that numerous provisions of the Sugar Act, both by their design and application, violate several of their constitutional rights. The first among these rights is the right to equal protection of the law. BSI and Mr. Navarro allege that the government has not brought the other sugar manufacturer, Santander Sugar Group...