Constitutional Reform and the Liberal Legislature

A. Expanding Access to Justice

Compared to many Commonwealth legislatures that display of a reflexive reluctance to expand citizens’ right to access the courts to test their constitutional rights, the Belizean legislature may be regarded as having adopted a liberal approach.

In Lauriano v AG⁶³ the appellant, a death row inmate who had exhausted all appeals, brought a constitutional motion challenging the constitutionality of his death sentence. The Supreme Court, pointing out that the appellant had had the opportunity to canvas the issues before the courts, dismissed the motion as frivolous and vexatious. Before the Court of Appeal, the state made a preliminary objection that the Court of Appeal had no jurisdiction in light of the proviso. Georges P rejected the submission that, despite the proviso, the court could examine whether the basis on which the Chief Justice had arrived at his conclusion that the grounds were frivolous and vexatious was sound. He concluded that to do that â€?would be to allow an appeal against the determination itself.’^{[955] [956]} A few other cases followed this emerging pattern.

Finally, in Mejia, Bull and Guevara v AG,^[957] the Court of Appeal revisited its position. Georges P said that a �literal interpretation of the proviso...makes serious inroads in the scheme for the enforcement of the protective provisions of the Constitution.’^[958] Because the proviso was unique to Belize, no cases could be cited indicating the relevant matters to be considered in exercising the power to dismiss an application as frivolous and vexatious in the area of fundamental rights and freedoms of a constitution. The court reasoned that, in exercising the jurisdiction to dismiss a constitutional application on the ground that it was frivolous and vexatious, a judge should act judicially. Finding that there was no basis for dismissing the application as frivolous and vexatious, the court allowed the appeal.

Through judicial activism, the court introduced a qualification to the apparent absoluteness of the proviso. But the Legislature was not content with this judicial amelioration of the severity of the proviso. It deleted it from the Constitution along with another proviso commonly found in Caribbean constitutions. That other proviso was to the effect that the Supreme Court could decline to exercise its jurisdiction where it is satisfied that adequate means of redress for constitutional contravention are available under another law. Together, these amendments conferred upon the citizenry unhindered access to the courts where they alleged breach of their fundamental rights and freedoms.

B. Refining a Constitutional Convention

The Belize Constitution (Fourth Amendment) Act 2001 introduced a curious amendment into the Belize Constitution. The amendment provided that the Governor General could not exercise his constitutional powers to make appointments to offices established by the Constitution or a public office after the National Assembly has been dissolved. The seeds of this amendment were sown in February of 1999 when Belize came close to a constitutional crisis.

Nearly six months after the appointment of the Chief Justice and the holding of the general elections, a Belizean citizen in J Mohammed v AG^[959] challenged the constitutional validity of the appointment of the Chief Justice and sought prohibition, restraining the Chief Justice from continuing to act as Chief Justice.^[960] Section 97(1) of the Belize Constitution states that �The Chief Justice shall be appointed by the Governor General acting in accordance with the advice of the Prime Minister given after consultation with the Leader of the Opposition.’ But the Belize Constitution also contained a provision not to be found in any other constitution in the Caribbean. This provision set out the effect of consultation and the requirements of consultation. It stated that:

Where any person or authority is directed by this Constitution to exercise any function after consultation with any other person or authority, that person or authority shall not be obliged to exercise that function in accordance with the advice of that person or authority.

Where any person or authority is directed by this Constitution or any other law to consult any other person or authority before taking any decision or action, that other person or authority must be given a genuine opportunity to present his or its view before the decision or action, as the case may be, is taken.^[961]

Section 34(4) of the Belize Constitution also contained a clause ousting enquiry by the courts of those functions of the Governor General requiring him to act in accordance with the advice of, or after consultation with any person or authority. There is force in the judge’s conclusion that the ouster clause could only protect from review the question of whether the Governor General himself had actually acted in accordance with advice or after consultation. That was not what was being questioned. What was being challenged was the failure by the Prime Minister to comply with the constitutional requirement to consult prior to advising the Governor General to appoint the Chief Justice. The judge found that when the Prime Minister wrote to the Leader of the Opposition inviting him to a meeting on Tuesday, 25 August 1998 to consult on the matter of the judicial appointments, the Governor General had already signed and sealed the instrument appointing the Chief Justice on that same day. The judge said:

This is the most telling piece of evidence and shows that the proposed meeting scheduled for Tuesday, 25^th August, 1998, was a mere sham...the appointment had been perfected by the Governor-General even before the scheduled meeting which had been specifically arranged to hear the views of the then Leader of the Opposition on the proposed appointment, had taken place.^[962]

The judge added obiter:

I also take judicial notice of the fact that general elections of members of the House of Representatives was due to be held on the 27^th day of August 1998 and the proposed appointment of Mr. Sosa as Chief Justice became effective a day before the election, i.e., 26^th August 1998.

The two ends of the rule of law were tied in a Gordian knot. The case did not go before the Court of Appeal so whether that court would have untied the knot, or like Alexander the Great, slice it, must remain a matter of speculation. On the one hand, the Belize Constitution, like other Caribbean constitutions, provided that a judge could be removed from office only for inability to discharge the functions of his office or for misbehaviour. On the other hand, the Constitution had provided a defined procedure for the appointment of a judge and had gone further than its Caribbean counterparts in explaining what consultation was to involve. The clear intention was that the procedure be respected. The Wooding Commission, set up in the early 1970s to review Trinidad and Tobago’s Constitution, had cautioned about the dangers of transplanting the Westminster model into �societies without political cultures which support its operative conventions.’^[964] The Belize framers had the foresight to avoid legis non scripta and reduce the convention of consultation into constitutional text. In the end, the deposed Chief Justice and the government reached an out-of-court settlement and the legislature two years later removed the possibility of a re-occurrence of this kind of matter in a constitutional amendment.

C. Strengthening Judicial Independence

What differentiates Meerabux v AG^[965] from other cases around the Commonwealth involving the removal of a high court judge is that it was not politically motivated. Complaints against the judge were initiated by the Bar Association of Belize and by a practising senior counsel.^[966] They invoked the constitutional procedures for removal on the ground of misbehaviour in office.

...it must be taken to have been within the contemplation of the framers of the Constitution that the Chairman who was directed by the first proviso to section 54(11) to preside over an inquiry into the question whether a judge of the Supreme Court should be removed for inability or misbehaviour would be a member of the Bar Association... it must also have been appreciated that complaints alleging inability or misbehaviour on the part of a justice of the Supreme Court would be a matter of concern to the Bar Association, and that it would be likely to be involved in the presentation of such complaints to any tribunal that was convened to inquire into the matter under section 98(5)(b)...in this context mere membership of the Association is not to be taken, in itself, as a ground of disqualification in the case of the Chairman.^[967]

The appellant also alleged that his section 6(8) constitutional right was also infringed. Section 6(8) required that all proceedings of every court or other authority be held in public. The Belize Advisory Council had held its inquiry in camera. The Privy Council found that section 6(8) is designed to reinforce the fundamental guarantee in section 6(1) that all persons are equal before the law and are entitled without discrimination to the equal protection of the law. But, they held, it must be assumed:

that the framers of the Constitution had that fundamental guarantee in mind when they were addressing themselves to the composition and powers of the BAC and the functions that it was to perform. It must also be assumed that they had it in mind when they were devising the procedure that should be followed for the removal from office of a justice of the Supreme Court. They had the opportunity, if they were so minded, to make it clear that the guarantee in section 6(8) applied to these proceedings. The provisions which deal with these matters in sections 54 and 98 of the Constitution contain no hint that they must be read subject to the provisions of section 6(8)...it is not engaged upon the determination of the existence or extent of any civil right or obligation within the meaning of section 6(8).^[968]

The judges of the Supreme Court, the Court of Appeal and the Privy Council all reached the same conclusion in the Meerabux case. At no stage was any serious issue taken with the operation of the removal procedures. Yet, on such a momentous matter as the removal of a judge, the legislature felt that the procedure ought to be tightened up. The existing procedure was that complaints for the removal of a judge were made directly to the Governor General who would consider whether the question of the judge’s removal ought to be referred to the Belize Advisory Council. The Belize Constitution (Fourth Amendment) Act now requires complaints to be made to the Judicial and Legal Services Commission which then considers whether the question of a judge’s removal ought to be referred to the Belize Advisory Council.^[969] This removes from the Governor General the onus of deciding whether there is enough in a complaint that merits referral to the Belize Advisory Council and places the onus on the Judicial and Legal Services Commission, a four-person panel comprised of the Chairman of the Public Services Commission, the Chief Justice, the Solicitor-General and the President of the Bar Association.^[970] It also removes the Head of State, as it were, from the political fray that sometimes accompanies something as weighty as the removal of a judge.

In 2005, the legislature, in its fifth constitutional amendment, introduced two other amendments intended to further strengthen the independence of the judiciary.^[971] The first recognized the Magistracy as an integral part of the judiciary and provided security of tenure for qualified magistrates in the same manner as that provided for Justices of the Supreme Court.^[972] Of the people who come before the courts, the great majority do so at the magistrates courts. Public perception of justice, to a large extent, is therefore fashioned there. It would therefore seem appropriate that the magistrates also be given security of tenure. The benefit of this is, however, yet to take effect. Of the 16 magistrates in Belize in 2008, only five were qualified as attorneys. There is currently no plan in place for the systematic training of magistrates which would professionalize the magistracy within a specified time period.

The Second Amendment introduced is somewhat opaque; it provides that �the budgets presented by the offices of the Auditor-General...the Supreme Court and the Court of Appeal shall be given first priority calls on the Consolidated Revenue Fund.’^[973] No doubt this was intended to prevent the more indirect methods ofjudicial interference such as budget attenuation or the diminution of judicial salaries or pensions by allowing the judiciary to design its own budget and present it which, along with other listed constitutional offices, would take a first bite out of the budget regardless of the other demands on the budget. In practice this has not worked out as the budget for the judiciary is routinely whittled down by the Ministry of Finance and consistently represents less than one per cent of the national budget.

D. Reforming Parliament

Another instance of the Belize legislature being sensitive to deficiencies in the Belize Constitution concerned the issue of floor­crossing. Floor-crossing is also a topic of constitutional reform discourse that has been debated for a long time across the Commonwealth. The legislature, however, amended the Constitution in 2001 to provide that if a member of the House of Representatives crosses the floor his seat shall be declared vacant resulting in a by-election to fill the vacant seat.^[974] More controversial is the provision in the Belize Constitution (Sixth Amendment) Act of August 2008 that allows for the recall of elected representatives before the expiry of their normal term of office, the mechanics of which are fleshed out in the Recall of Elected Representatives Act.^[975]

The question of the role and relevance of the Senate has been a live issue in Commonwealth Caribbean constitutional discourse since the 1970s. The Wooding Commission of Trinidad and Tobago had recommended its abolition.^[976] Constitutional amendments introduced in 2001 restructured the Belize Senate, giving it new powers unprecedented in the Caribbean.^[977] The senate was originally comprised of eight members: five appointed on the advice of the prime minister, two on the advice of the opposition leader and one on the advice of the Belize Advisory Council. This was expanded to 12; six on the advice of the prime minister; three on the advice of the opposition leader; and one each by the Belize Council of Churches and Evangelical Association of Churches, the Belize Chamber of Commerce and the National Trade Union congress along with the Civil Society Steering Committee.^[978] The senate’s powers and functions were expanded to include approving any bill to alter the bill of rights, authorizing the ratification of any treaty by the government of Belize, approving the establishment in Belize of any new, foreign military bases and approving the appointment of ambassadors, judges, the Director of Public Prosecutions, the Contractor-General and the Ombudsman.^[979] Since the restructuring of the senate, the value of the senate as a revising chamber has improved.^[980] The number of instances in which bills sent by the House of Representatives have been improved upon in substance and in drafting has dramatically increased. It has also been observed that the scrutiny of and proposed amendments to the draft bills comes from the independent senators representing the churches, the business community, the trade unions and civil society.

Emboldened by its new powers, the senate sought to extend the ambit of its oversight to an extent unprecedented in the Caribbean. Following a huge public controversy over the alleged mismanagement of Belize Social Security Board (BSSB) funds in high risk, failed investments, the senate passed a resolution appointing a special select committee of the senate to inquire into the management and operation of the BSSB. Almost two years later, it concluded its report which was debated by the senate and accepted. One of the recommendations was that the CEO of the BSSB should be terminated. Following her termination, the CEO challenged, inter alia, the jurisdiction of the senate to embark on the inquiry.^[981] The Supreme Court decided that under the National Assembly (Powers and Privileges) Ordinance 1962, which was still in force in Belize, the senate could have embarked on such an inquiry. While the Belize Constitution did not confer any specific power to embark upon such an inquiry, neither did it prohibit it. The Constitution, the judge found, was merely silent about those matters. Since there was no conflict between the National Assembly (Powers and Privileges) Ordinance and the Belize Constitution, the court was happy to conclude that the inquiry had not been unlawful.^[982]

The Belize Constitution (Sixth Amendment) Act of 2008 has further reformed the Senate ensuring that the senators nominated by the Opposition and the non-government organizations together constitute the majority.^[983] It expands the senate’s powers to initiate and conduct public inquiries into mismanagement or corruption by persons in central government or statutory bodies, removing the basis for the challenge of the senate’s jurisdiction that was relied upon in the Garcia case.^[984] The most far-reaching reform as it relates to the executive has been the three- term limit for holders of the office of prime minister that was introduced in the sixth constitutional amendments.

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