Ian Haylock v Prime Minister of Belize
| Jurisdiction | Belize |
| Judge | Mr Justice Westmin R.A. James (Ag) |
| Judgment Date | 16 April 2021 |
| Docket Number | CLAIM NO 43 OF 2021 |
| Court | Supreme Court (Belize) |
IN THE SUPREME COURT OF BELIZE, A.D. 2021
Before: The Hon. Mr Justice Westmin R.A. James (Ag)
CLAIM NO 43 OF 2021
Mr Dean Barrow SC and Mr Darrell Bradley, Counsel for the Claimant.
Mr. Andrew Marshalleck SC with Ms. Stacey Castillo Counsel for the Defendant.
Mr Godfrey P. Smith SC, Ms Samantha Matute-Tucker, Mr Jorge Mattus and Mr Hector Guerra for the Defendants
Mr Andrew Marshelleck SC for the Interested Party
By Notice of Application dated and filed on the 22 nd January 2021, supported by affidavit sworn to and filed on even date, the Applicant sought permission of the Court to apply for Judicial Review and an interim injunction. I granted leave to the Claimant on the 9 th February, 2021 to file for Judicial Review but refused to grant the interim order to stay the decisions of the Defendants pending the final determination of this matter.
The Claimants filed their Claim Form with supporting Affidavit on the 18 th February, 2021 wherein they sought Judicial Review of the decision of the First Defendant's decision to advise the Governor General of Belize to designate the office of Comptroller of Customs and Excise as an office to which section 107 of the Constitution applies, with the effect of such designation (which took place by way of an Instrument signed by the Governor General and dated 30 th December 2020) being to remove from the Public Services Commission the power under Section 106 of the Constitution to appoint the Comptroller of Customs and Excise; with a further effect being to give such power instead to the Prime Minister by way of advice to the Governor General of Belize; and with a still further effect being that by instrument dated 30 th December, 2020 the Governor General of Belize, acting upon the advice of the Prime Minister, appointed Estella Betty Ann Leslie to the post of Comptroller of Customs and Excise with immediate effect.
The Claimant challenged both Instruments of the Governor General resulting from the advice of the First Defendant and to pursue an order of certiorari to quash that advice and the appointment Instruments flowing from it.
Subsequent to leave being granted and the filing of the fixed date claim, the Defendant revoked the instruments dated 30 th December, 2021 and replaced them with two new instruments dated 25 th February 2021 after consultations were renewed with the Public Services Commission, the Commission confirmed in writing that it had no objections to the proposed designation of the post of Comptroller of Customs and Excise as a section 107 office. The Defendants in revoking, redesignating and reappointing the Interested Party was indeed intended to address and correct any deficiency in the prior designation or prior appointment and to ensure full consultation with the Public Services Commission as required by the Constitution.
The Claimant's Fixed Date Claim Form was amended by consent and the Claimant now pursue the following orders:
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(i) A declaration that the First Defendant acted without consultation with the Claimant and other similarly situated members of the Public Service who were directly affected, or with any of the unions representing public service employees, before taking a decision to advise the Governor General to remove the post of Comptroller of Customs and Excise from the purview of Section 106 of the Constitution and to place it under Section 107 of the Constitution.
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(ii) A declaration that the First Defendant acted without consultation, unfairly, in bad faith, discriminatorily and Wednesbury unreasonably, and that the First Defendant breached the Claimant's right to equal protection under the law and his legitimate expectation of fair career advancement when the First Defendant advised the Governor General to remove the post of Comptroller of Customs and Excise from the purview of Section 106 of the Constitution and to place it under Section 107 of the Constitution
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(iii) A declaration that the designation of the post of Comptroller of Customs and Excise as a post that may be filled by appointment pursuant to Section 107(2) of the Constitution, which designation was effected by the Governor General by instrument dated 25 th February 2021 is void and of no effect, and that appointments to fill the post of Comptroller of Customs and Excise was at all material times, and continues to be, required to be done pursuant to Section 106 of the Constitution, and further that the appointment of Estella Betty Ann Leslie as Comptroller of Customs and Excise, done by instrument dated 25 th February 2021 is void and of no effect.
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(iv) An Order of certiorari quashing the decision of the First Defendant to advise the Governor General to designate the post of Comptroller of Customs and Excise as a post falling within Section 107(2) of the Constitution, and further quashing the instrument of designation made by the Governor General dated 25 th February 2021.
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(v) An order of certiorari quashing the instrument of appointment, dated 25 th February 2021 purportedly made pursuant to Section 107(2) of the Constitution, done by the Governor General acting in accordance with the advice of the First Defendant, appointing Estella Betty Ann Leslie to the post of Comptroller of Customs and Excise.
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(vi) Such further or other relief as this Honourable Court may deem just.
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(vii) Costs
The Claimant's case is that he has served thirty-three years in the Public Service and is the most senior Deputy Comptroller of Customs and Excise. He argues that in December 2020 when the then Comptroller of Customs and Excise, Colin Griffith, whose term was extended advised the Financial Secretary in writing that he was demitting office, he also advised the Financial Secretary that he was turning over control to the Claimant as the most Senior Deputy Comptroller of Customs and Excise pursuant to Circular 22 of 2010 dated August 23, 2010.
The Applicant indicated that on the 21 st December 2020, he was called into a meeting with the Financial Secretary at which time he was told that it was decided a less senior officer, Ms Estella Betty Ann Leslie, the Interested Party, was going to be promoted to the office of Comptroller of Customs.
The Claimant contends that without consulting him or person in like position to him or any of the unions representing the public service employees, the First Defendant unlawfully advised the Governor General of Belize to designate the post of Comptroller of Customs and Excise as a section 107 appointment, changing it from a Section 106 appointment.
The Claimant as a supplementary argument also alleges that he was deprived of the promotion to which he was entitled under the legal regime promulgated by section 106 of the Constitution. He also argued that his right to equal protection under the law was breached with the First Respondent acting unlawfully, unfairly, discriminately, unreasonably in the Wednesbury sense and in breach of his legitimate expectation to fair treatment in career advancement, including being promoted to the post of Comptroller of Customs and Excise under the Public Service Rules, Regulations and Circulars.
The crux of the case for the Claimant in this regard is that the First Defendant was required to consult with the Claimant before the First Defendant made the decision to advise the Governor General to designate the office of Comptroller of Customs as a Section 107 office.
Section 107 of the Constitution provides:
(1) This section applies to the offices of Solicitor General, Secretary to the Cabinet, Financial Secretary, Chief Executive Officer, Commissioner of Police, Commandant, Belize Defence Force, Commandant, Belize National Coast Guard Service, Superintendent of Prisons, Ambassador, High Commissioner or principal representative of Belize in any other country or accredited to any international organisation, and, subject to the provisions of this Constitution, any other office designated by the Governor-General, acting in accordance with the advice of the Prime Minister given after consultation with the Public Services Commission.
(2) The power to appoint persons to hold or to act in offices to which this section applies (including the power to transfer or to confirm appointments) and, subject to the provisions of section 111 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Governor-General, acting in accordance with the advice of the Prime Minister.
I think it is important to note from the outset what was the effect of this provision. This provision changes the decision maker, that is, the person/body that decides who is appointed to a specific post. It changes that decision maker from the Public Services Commission to the Prime Minister. This provision and also section 106 does not itself appoint a person to a job it simply indicates the decision maker.
While there is no provision in section 107 for consultation with a potential occupant of the office, an obligation to consult may arise by way of an express or implicit statutory duty, or be required in order to give effect to a legitimate expectation of consultation. As stated in R (Harrow Community Support Ltd) v Secretary of State for Defence [2012] EWHC 1921(Admin) a duty to consult does not arise in all circumstances otherwise the business of government would grind to a halt. The UK Supreme Court considered this issue in R (ota Moseley)...
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