Ex parte Belize Telecommunications Ltd v R et Al
| Jurisdiction | Belize |
| Judge | Conteh, C.J. |
| Judgment Date | 12 February 2002 |
| Court | Supreme Court (Belize) |
| Docket Number | 47 of 2002 |
| Date | 12 February 2002 |
Supreme Court
Conteh, C.J.
47 of 2002
Ms. Lois Young Barrow S.C.for the applicant.
Mr. Elson Kaseke, Solicitor General, with Ms. Minnet Hafiz, Crown Counsel, for the respondent.
Practice and Procedure - Application for judicial review — Preliminary objections that the proceeding were irregular due to failure to cite the Attorney General as respondent — S.42(5) of the Constitution states that the proper respondent in ‘civil proceedings’ against the state is the Attorney General — Whether judicial review is a ‘civil proceeding’ — Whether judicial review concerned a Minister's action — It is just, fair and proper that the responsible officer be cited as a respondent — Judicial review proceedings are not necessarily ‘civil proceedings’ in that sense mentioned in s.42(5) of the Constitution — Appeal dismissed.
The applicant in this application is seeking leave of this Court to launch by way of judicial review a challenge of a Statutory Instrument made by the Minister of Budget Management, Investment and Public Utilities pursuant to the Telecommunications Act — Chapter 229. This Statutory Instrument is No. 11 of 2002.
The applicant is seeking leave to move this Court to declare that the Minister acted ultra vires his powers under the Act; to have this Court make an Order of Certiorari quashing the decision of the Minister to make the Order; an Order of Certiorari to quash Statutory Instrument No.11 of 2002; an Order restraining the Minister from making any further Order interfering with the charges and collection of revised tariffs by the applicant until the hearing of the applicant's judicial review motion; an Order restraining the Minister from making an Order or Statutory Instrument on the basis of breaches alleged to have been committed by the applicant as stated in the Statutory Instrument, and for consequential directions and an order for costs.
In this application it has named the Minister as the respondent. Against this, the learned Solicitor General has launched what can best be described as a pre-emptive strike by way of a preliminary objection. That is to say, the learned Solicitor General is asking the court in limine to strike out the applicant's application for leave since he has cited the wrong respondent, contrary to section 2 as read with section 42(5) of the Constitution of Belize. In other words, the Solicitor General is asking, in effect, that the proceedings commenced by the applicant in this matter be set aside for irregularity.
I was however, troubled by the format of the Solicitor General's preliminary objections given the requirements of Order 76, rule 2 of the Supreme Court Rules which provides.
“3. When an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the summons or notice of motion.”
The objections by the learned Solicitor General are in a format headed “Preliminary Objections by Solicitor General”. This is neither a regular summons nor a notice of motion. Instead, it sets out the several objections the learned Solicitor General wants to urge on the Court why the applicant's application should be struck out. The format goes on under the caption “Submissions” to argue why the various objections should succeed, rounding off with “respondent asks for costs”.
Be this as it may, I however indulged the learned Solicitor General and in any event, the learned Attorney for the applicant Ms. Lois Young Barrow S.C., did not raise any objection, but insisted instead that the Solicitor General should only be heard on the first objection as the rest could come in later in answer to the application for leave. I accordingly, allowed the learned Solicitor General to argue his objection that the application itself should, in limine, be struck out as the applicant has cited the wrong party.
The learned Solicitor General submitted that in virtue of the supremacy of the Constitution as stipulated in section 2, and the constitutional provision in section 42(5) of the Belize Constitution that in “civil proceedings” against the state, the proper respondent or defendant is the Attorney-General. Consequently, because the applicant has cited the Minister of Budget Management, Investment and Public Utilities as respondent in these proceedings, the wrong respondent is before the Court.
It is I think instructive to set out in full the provision of subsection (5) of section 42 of the Belize Constitution:
“5. Legal proceedings for or against the State shall be taken in the case of civil proceedings, in the name of the Attorney General and, in the case of criminal proceedings, in the name of the Crown.”
From this seemingly innocuous provision of the Constitution, the learned Solicitor General has set out to fashion a missile to blow the applicant's case out of the water, if not sink it altogether, even before it sets sail. The Solicitor General submitted that in any civil proceedings involving the State, it is by the Constitution, mandatory that the Attorney-General be a party. He further submitted that as the Minister of Budget Management, Investment and Public Utilities was exercising governmental powers when he made Statutory Instrument No.11 of 2002, if a challenge of that instrument is sought, as the applicant is seeking leave by the present application to do, this would be “civil proceedings” and therefore by the Constitutional provisions, the Attorney General is the proper respondent. Therefore, the Minister, so the learned Solicitor General's argument goes, is not the proper party. The Attorney General should have been the sole respondent in these proceedings when they were commenced, ergo, the application should be struck out. Finally, the learned Solicitor General submitted nothing in any Act in Belize or in the Supreme Court Rules of Belize or the English Rules can override section 42(5) by virtue of section 2 of the Belize Constitution.
The learned Solicitor General understandably put much store on a decision of this Court in Supreme Court Action No.253 of 1998, Said Musa v. Harry Lui and William Tillett (unreported). This case like the instant one, was concerned with leave to apply for judicial review of a decision made by the then Prime Minister to appoint Harry Lui and William Tillett to be Commissioners of Inquiry pursuant to Statutory Instrument No. 29 of 1998. At the initial ex parte stage, Nathan, J. ordered that the application be heard inter partes. At the inter partes hearing for leave, the applicant's Attorney applied for leave to join the Attorney General as the third respondent and to have all papers served on him. The Attorney General was not joined by the applicant in his leave application. The then Solicitor General stoutly raised a preliminary objection, as the learned Solicitor General has done before me, to the effect that the action was brought in breach of section 42(5) of the Constitution and should therefore be struck out.
Sosa, J., as he then was, in striking out the action, said, among other things that:
“It is beyond question, in my judgment, that the Attorney General is a proper party to an action or procedure such as this one. The very phraseology employed in instituting the action makes it plain that the applicant seeks judicial review in respect of acts of the Government or acts of State. By section 42(5) of the Constitution, this procedure or action, if one can properly regard it as an action despite its introduction in England as an entirely new form of procedure in 1977, being a civil proceeding, was required to have been commenced against the Attorney-General.”
The learned Justice then concluded: “… the launching of these proceedings against the respondent only resulted in fundamentally flawed proceedings which cannot stand, absent joinder of the Attorney-General.”
In addition to dismissing an application for joinder of the Attorney General, the learned Justice upheld the preliminary objection of the respondents and struck out the action.
Let me say right away that I was puzzled and indeed troubled, when I reflected on this submission of the learned Solicitor General. It dawned on me that the framers of the Belize Constitution must themselves be troubled by this; and those of their number who have gone to the great beyond must turn in their graves, and those who are still on this side of the great divide, will pause in their tracks, if they realize that so seemingly an innocent provision in the Constitution could be used to shut the doors of the courts of this country in the face of citizens who perceive some wrong that may well turn out to be good ground for complaint as the result of some exercise of governmental power. This surely, could not have been intended for a Constitution under whose protective shade every citizen should find succour when necessary.
As a result of some deep reflection and analysis, I am unable to accede to the weighty submission put forward by the learned Solicitor General. I say weighty, because every Court must pay the utmost deference and yield in the face of an invocation by a party before it of Constitutional propositions, if well grounded.
The kernel of the learned Solicitor General's submission was that the Attorney General, who should be the respondent before the Court in these proceedings, was not cited by the applicant and therefore its suit must be struck out. I tried to point out to the learned Solicitor General the ameliorative, indeed curative powers of the provision of Order 17 Rule 12 of the Supreme...
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