The Rt. Honourable Dean Barrow v Edmund Andrew Marshalleck Jr
| Jurisdiction | Belize |
| Judge | Lisa Shoman |
| Judgment Date | 06 April 2022 |
| Year | 2022 |
| Court | Supreme Court (Belize) |
| Docket Number | Claim No. 33 of 2022 |
THE HONOURABLE JUSTICE Lisa Shoman
Claim No. 33 of 2022
IN THE SUPREME COURT OF BELIZE A.D. 2022
Ms. Naima Barrow for the Claimant
Godfrey Smith SC and Mr Hector Guerra for 1 st – 3 rd Defendants
Douglas Mendez SC & Ms. Iliana Swift for the 4 th Defendant
The Claimant challenges the validity of the findings and Report of the Commission of Enquiry (“the COI”). of which the first three Defendants were members, by Fixed Date Claim Form dated 25 th February 2022. The 4 th Defendant is the Attorney General of Belize. The Claimant also claims that his right to “equal protection” under law was infringed, and claims damages including vindicatory damages and costs.
The Claimant's claims regarding the findings and the Report of the COI are also found in the Application for Permission to apply for Judicial Review dated 19 th January, 2022 (“the Application”), his First Affidavit accompanying that Application sworn to on 19 th January 2022, his Second Affidavit sworn to on 25 th February, 2022 and Third Affidavit are for:
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i. A declaration that the findings and Report were made in consequence of a Commission of Inquiry process that was ultra vires, procedurally improper, violative of the Claimant's natural justice rights and violative of the Claimant's Constitutional right to equal protection under law; that those Findings and Report are therefore void and a nullity.
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ii. An order of certiorari quashing the Findings and Report of the Commission.
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iii. An order or prohibition restraining the Government of Belize from effecting or enforcing the Findings and Report of the Commission.
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iv. A permanent Injunction restraining the Government of Belize, its servants, agents, departments, authorities and officials, from implementing or acting upon the Findings and Report of the Commission.
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v. Redress for the contravention of the provisions of the Belize Constitution, Cap. 4, Revised Edition 2011 (“ the Constitution”).
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vi. Costs.
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vii. Such further or other relief as may be just. 1
The grounds upon which the claim is brought, can be summarized as follows:
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i) The COI exceeded its jurisdiction in indicting the Applicant in the manner and terms it did, and in implying/expressly stating that the Applicant had committed crimes against the Finance and Audit Act (“the FARA”) and that he had suborned corruption on the part of the former President of the Court of Appeal;
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ii) Actual or apparent bias of the First Respondent arising from his relationship with the Prime Minister of Belize who appointed the Commission, and the alleged fact that the First Respondent is a public opponent of those he was appointed to investigate and a personal and professional partisan of those who appointed him to carry out the investigation. 2
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iii) The Commission violated the Claimant's natural justice and constitutional rights by failing to notify the Claimant of the nature and purpose and extent of the COI by issuing a Salmon Letter, to advise that he had a right to be represented, to provide prior notice of documents on which they intended to rely, by relying on evidence outside the scope of the Commission and to give him an opportunity to respond to the findings adverse to the Claimant, which were contained in the Report 3 (paragraphs 34–46 of the application; paragraphs 8–11 of the first affidavit).
The 1 st – 3 rd Defendants in this Claim concede and accept that the Claimant is entitled to declarations that the Defendants breached his right to natural justice and his right to protection under the law, and to an order that the Claimant be paid damages, if any, to be assessed, such damage to be paid by the 4 th Defendant.
The Claimant is awarded $125,000.00 Belize Dollars as redress for compensatory damages and $60,000.00 Belize Dollars in vindicatory damages for the reasons provided below. The Defendants have all agreed that damages are to be paid by the 4 th Defendant.
Did the Commissioners embark on a process that was Ultra Vires? Despite the myriad admitted failures of the COI with regard to the natural justice and constitutional rights of the Claimant, which will be redressed by awards in damages, the process of the COI was not ultra vires the remit, which remit was in conformity with the statutory requirements under the laws of Belize.
This Court finds no actual or apparent bias on the part of the First Defendant nor the Second, and finds that the COI report and findings were not tainted with bias.
There is no doubt that the Claimant was denied his natural justice rights and his constitutional right of protection under the law but the Court does not order that the entire COI Report be quashed, for the reasons provided below. The Court orders that those findings of the COI Report which tend to prejudice, or are adverse to the Claimant shall be expunged in their entirety from the Report, as set out below. Some sections of that report were already by consent excised in Claim No. 29 of 2022.
The Court will not make an order of prohibition restraining the Government of Belize from effecting or enforcing the Findings and Report of the Commission, nor order a permanent Injunction restraining the Government of Belize, its servants, agents, departments, authorities and officials, from implementing or acting upon the Findings and Report of the Commission.
Costs will be awarded to the Claimant as set out below.
The Written Submissions made on behalf of the Attorney General accepts that the Claimant had no notice of and therefore no opportunity to respond to the findings made by the Commission in the sentences/paragraphs set out below, and the 4 th Defendant therefore accepts that it would be appropriate for the Court to order a declaration that the Claimant's constitutional rights to the protection of the law has been infringed, and that damages should be paid.
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i) Paragraph 12, lines 6 to 9, from “it was clear to the Commission” to “Minister of Finance”;
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ii) Paragraph 13, lines 7 to 9, from “In fact, most purchasers” to “favourable consideration”; lines 17 to 21, from “The overall result” to “transparent way”;
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iii) Paragraph 14 – lines 7 to 9, from “nor were” to “waste and abuse”;
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iv) Paragraph 15 – the entire paragraph;
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v) Paragraph 22 – the entire paragraph;
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vi) Paragraphs 67–72 – the entire paragraphs;
Since the Parties are in agreement that the Claimant's natural justice and constitutional rights of protection of the law were infringed and violated by the COI; and that declarations to that effect should be made; the matter of what damages if any should be awarded to the Claimant, is the first order of business for this Court. The Claimant offers submissions which concede the applicability of the authorities and principles in relation to the award of damages submitted by the 4 th Defendant. Where the parties part ways is on the matter of the application of those authorities and principles to the facts of this Claim and the evidence of this Claimant.
The Claimant claims compensation for distress and the injury to his reputation caused by the publication of the Report. He also claims an award of vindicatory damages for the breach of his constitutional rights.
The 4 th Defendant while conceding that awards made in defamation cases may be used as a guide, does point out that the award made to the Claimant in those cases, is an award for the attack on the Claimant's reputation, as opposed to an award for the distress suffered; and submits that an appropriate award in this case for such distress and injury to feelings in this claim, would be “in the range of $30,000.00 Belize Dollars to $50,000.00 Belize Dollars. 4
What was the distress suffered by the Claimant and the resulting injury? The Claimant provides this Court with ample evidence in his First Affidavit dated 19 June 2022; in his Second Affidavit dated February 25, 2022; and his Third Affidavit dated March 10, 2022 of the impact on him, and resulting injury to him, of what the Claimant's Counsel calls “blazingly public nature of the Commissions' inquiry.” In a Press Release issued by the Government of Belize and dated January 11, 2022, the COI's “key findings” were detailed and that Press Release was disseminated by the media and widely discussed by the general public.
The Claimant provides evidence that “he became extremely distressed” at what the Report said about him. 5 He also says that he was “ greatly shocked when he heard and read what the Commission said about me in the Report”. 6
The Claimant also deposes that he was “ appalled that the Commission… could ambush me in the manner of the Report. The Commission savaged me to the point of saying I had committed criminal breaches of the law.” 7 He goes on to say that he was “utterly blindsided by the Report and felt that its findings and publication without my ever having had a chance to make representations to protect my name, character and reputation, constituted a blatant violation of my fundamental constitutional right to protection of the law.” 8
In his Second Affidavit, the Claimant described that the “Report of the Commission, extensively covered by the media in Belize and the subject of a torrent of public discussion, has caused me severe anguish.” 9
The Claimant deposes that he believed that “ the Report must have damaged me with friends, clients and colleagues.” He goes on to say that “ It is, of course impossible to calculate the extent of the injury.” 10
The Claimant says he had to explain to his teenage daughter why, he was still being attacked when he had left...
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