Frank Edward Paco v Estevan Perera et Al

• Jurisdiction: Belize
• Judge: Acting Chief Justice Michelle Arana
• Judgment Date: 26 April 2022
• Court: Supreme Court (Belize)
• Docket Number: CLAIM NO. 55 OF 2019

Between

Frank Edward Paco

Claimants

and

Estevan Perera et al

1 ^st Defendant

Before

The Honourable Acting Chief Justice Michelle Arana

CLAIM NO. 55 OF 2019

IN THE SUPREME COURT OF BELIZE A.D. 2019

Mrs. Michelle Trapp-Zuniga and Mr. Arthur Saldivar for the Claimants

Mrs. Samantha Matute Tucker for the Defendants

1 This is an Application to Strike Out Claim. The substantive claim is a claim for judicial review of the Elections and Boundaries Commission's (the Commission) failure to comply with the Constitution of Belize under section 90(1) (a). The Claimants seek declarations and orders that the Commission comply with the Constitution, that electoral divisions be altered or re-divided, that the Commission be ordered to comply with section 90(1) (a) within a specified time, that continued violation of section 90(1) (a) is a violation of Section 6 of the Constitution and that elections scheduled for the year 2020 be stayed until the Commission complies with section 90(1) (a) of the Constitution. The Defendants/Applicants have brought this Application to strike out this claim on several grounds, including failure of the Claimants/Respondents to comply with the Supreme Court ( Civil Procedure) Rules, the declaration sought to prevent the General Elections now rendered moot and academic, and the prohibition against courts interfering in matters of politics and high policy. The Claimants/Respondents resist this Application on the basis that the Respondents should be allowed to interrogate breaches of their fundamental rights under the Constitution of Belize, the overriding objectives of the Supreme Court ( Civil Procedure) Rules requires that the court deal with cases justly, declarations are free standing orders under the CPR and striking out is an option of last resort and should only be used in the clearest cases, and the case at bar is not such a case. The court now examines these legal submissions and determines this Application.

2 Legal Submissions on Behalf of the Defendants/Claimants

Mrs. Samantha Matute-Tucker contends on behalf of the Defendants/Applicants that this claim should be struck out for several reasons. The first is that there is no reason on record for the Claimants/Respondents' failure to comply with the Supreme Court ( Civil Procedure) Rules 2005 (CPR). The Claimants have failed to promptly file an application for relief from sanctions supported by evidence on affidavit. The Court would therefore be unable to assess whether the failure by the Claimants/Respondents was intentional, whether there was a good explanation for this failure and whether there has been general compliance with the Rules. Mrs. Tucker cites Anthony Clyne v The Guyana and Trinidad Mutual Insurance Co. Ltd. HCVAP 2010/011 where the Eastern Caribbean Court of Appeal emphasized the mandatory nature of the Rule dealing with relief from sanctions. Misapprehension of the law and lack of diligence on the part of counsel are not good reasons.

3 Mrs. Tucker also submits that the declaration sought to prevent the use of section 93 of the Constitution for electoral divisions for the purposes of General Elections and the injunctive relief sought to prevent the election are now moot and academic. The courts would generally not adjudicate on matters where no legal controversy exists. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, the Australian Federal Court held that declaratory relief is confined by considerations which mark out the boundaries of judicial power. Hence declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypotethical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question is “purely hypotethical”, if relief is “claimed in relation to circumstances that have not occurred and might never happen” or, if “the court's declaration will produce no foreseeable consequences for the parties.” Mrs. Tucker says that the elections have gone and as a consequence the injunction to stop the use of electoral divisions is not an issue in controversy, and the declaration to have the divisions not used is spent. If the court is to continue to address these reliefs, it would be an affront to the overriding objectives of the Rules.

4 Mrs. Tucker also argues that the Court should not interfere in matters of politics and high policy. The drawing of electoral divisions and boundaries is one of policy and within the remit of the legislature and the executive. The establishing of the committee to address the technical issues of redistricting are matters for the executive and the legislature and the evidence is that the executive has started to do their work. The Affidavit evidence of Mr. Oscar Sabido SC dated the 14 ^th December 2021 speaks to the steps that have been taken by the Commission in establishing a task force to carry out the redivision so that the electoral divisions may have as nearly as may be an equal number of persons eligible to vote, and the timeline to get the re-division done, as well as steps taken in the budget. Mrs. Josephine Tamai also gave Affidavit evidence that the Task Force is now formed and prepared to commence the redistricting process and that she has been appointed Chairperson of the Task Force. The Elections and Boundaries Department has requested supplemental funds of $452,934.00 until the budget has been approved for the fiscal year 2022/2023 so that the Task Force could commence its work.

5 Mrs. Tucker submits that while the courts are the guardians of the Constitution and as such, tasked with the duty to ensure that the right to protection of law is not infringed, in the case at bar, this is a very narrow line and the court has to be careful that it does not breach the separation of powers doctrine. This was the caution made by Justice Saunders (as he then was) in the High Court of Anguilla in Benjamin et. al. v the Ministry of Information et. al. at page 17:

“Our democracy rests on three fundamental pillars, the legislature, executive and judiciary. All must keep within the bounds of the Constitution. The judiciary has the task of seeing to it that legislative and executive action does not stray outside those boundaries onto forbidden territory. If that occurs and a citizen withstanding complains, the court declares the trespass and grants appropriate remedies.

Within the constitutional parameters, the legislative and the executive are responsible for enacting and implementing such policy measures as they consider being most appropriate for the people. The judiciary has to be careful that it too does not stray from its function and usurp the authority and role reserved for the other two pillars.” (Emphasis added)

6 Mrs. Tucker cites the decision of Belize's apex court the Caribbean Court of Justice in Christopher Ram v The AG [2019] CCJ 14 (AJ)...