Judicial Review and Rights Constitutionalism
It is axiomatic that constitutionalism begins with the readiness of citizens to challenge governmental action and insist upon adherence to constitutional government. This chapter includes some cases that involve judicial review of administrative action because the principle that decision-makers must act within their lawful powers is nothing more than a technical derivative of the broader constitutional norm of the rule of law.
Two years after independence in 1981, litigation to compel compliance with the Constitution was decidedly underway in Belize. Card v AG[919] established that the Head of State had no powers under the Constitution to discipline public officers, a function that resided exclusively with the Public Service Commission. The late Chief Justice of Belize, Sir George Brown, remarked that this decision �demonstrated...Ihal no one was above the law, not even the Executive Head of State, the Governor General.’[920] Smith v AG[921] and Carr v AG[922] followed in quick succession, both re-enforcing the paramountcy of access to the courts for the purpose of securing compliance with the Constitution.The judiciary has been fairly robust in enforcing fundamental rights and freedoms. Belize Broadcasting Authority v Courtenay,[923] for example, enforced the protection from discrimination and freedom of expression. Recently, in Wade v Roches,[924] the Court of Appeal upheld the decision of the Chief Justice that Wade, the General Manager of Roman Catholic Schools had discriminated against Roches in terminating her employment as a teacher after she became pregnant. Earlier, Alonzo v DFC[925] had firmly established that redress for breach of constitutional rights could not lie against a body that was not a public body endowed by law with coercive power.
Wade v Roches was distinguishable since the management authority of the schools had been clothed by legislation with powers that gave it a public character.A. Interpreting Saving Law Clauses
The clearest illustration that the framers of the Belize Constitution, in drafting the Belize Constitution, were alert to some of the challenges that had emerged from the region’s experience with constitutional interpretation was their approach to the savings law clause in the Belize Constitution. The general and special savings law clauses have been described as �probably the most contradictory feature of Caribbean constitutions [which] Courts now adopt a restrictive reading...because they are so devastating to the protection of fundamental rights and freedoms.’[926] The general savings law clause in the Belize Constitution appears in Part II, �Protection of Fundamental Rights and Freedoms,’ the bill of rights, at section 21. It states that �Nothing contained in any law in force immediately before Independence Day nor anything done under the authority of any such law shall, for a period of five years after Independence Day, be held to be inconsistent with or done in contravention of any of the provisions of this part.’ In examining section 21, Lord Bingham in Reyes v R[927] observed that �...unusually if not uniquely, the continuing savings clauses found in many other if not all Caribbean constitutions, whether in the wider form found in some constitutions or the narrower form found in others, have no close counterpart in the constitution of Belize.’[928]
Henry P in San Jose Farmers’ Cooperative Ltd v AG[929] gave a fuller explanation for the singularity of section 21 when he observed that:
In certain territories where the �Westminster model’ Constitution had been adopted, provision had been made for the continuing validity of existing laws, notwithstanding their inconsistency with fundamental rights and freedoms provisions of the constitution of the territory.
In others, such existing laws become instantly unconstitutional when the Constitution of the territory came into force because they were afforded no such protection. Both provisions created problems and section 21 of the Belize Constitution was designed to overcome both problems by providing a breathing space during which the Governor-General and Parliament could effect the necessary legislative changes.[930]A majority of the Court of Appeal consisting of Henry P and Liverpool JA, having found certain sections of the Land Acquisition (Public Purposes) Act to be inconsistent with the Constitution, went on to effect minor textual amendments to the sections to bring them into conformity with the Belize Constitution. The dissent by Smith JA that this amounted to the creation of new law and could not be done by the court was met by the mild rebuke of Liverpool JA that in fact this was a task entrusted to the court which it was obliged to undertake �with an approach akin to that which Lord Atkin in Liversidge v Anderson [1942] AC 206 would have required of his “bold spirits.”’[931] Parliament shortly after that judgment effected the amendments to the legislation pointed out in the judgment to bring the Act into conformity with the Constitution.
In contrast, in Melendez v R,[932] the Court of Appeal was astute to the implied constraints on the power to modify and adapt unconstitutional laws to bring them into conformity with the Belize Constitution. The appellant, a minor at the time of his commission of murder, was, in accordance with the Indictable Procedure Code, sentenced to be detained at Her Majesty’s pleasure. The court found that this was a provision that obliged the court to delegate to the executive the power to determine the length of detention of a convicted person and was �a patent infringement’ of the principle of separation of powers. The court was invited to utilize section 134 of the Belize Constitution to modify that provision of the Code to bring it into conformity with the Constitution.
Justice Telford Georges, President of the Court of Appeal, declined the invitation. He was very much alive to the fact that the circumstances here were different from the San Jose Farmers case. Even though the insertion by the court of simple wording could have effected conformity, the Court of Appeal observed that the �area of punishment is quite different. There is no clear principle of the common law or constitutional criterion to chart the path for one seeking to amend with modifications. It remains very much a matter of social policy.’[933] He made a clear distinction between the prescription of a fixed penalty which was a matter for Parliament and the selection of a penalty for a particular case, the latter being a matter for the courts. The court found an escape route from its constitutional quandary in the Criminal Code which had recently been amended to empower a court to impose life imprisonment in special and extenuating circumstances where a murder of the type in issue in that case had been committed.[934]B. The Parameters of the Right to Work
Another noteworthy difference between Belize’s bill of rights and that of its Caribbean counterparts is the provision of the right to work as a substantive and enforceable right under section 15 of the Belize Constitution. That section provides that no person �shall be denied the opportunity to gain his living by work which he freely chooses or accepts, whether by pursuing a profession or occupation or by engaging in a trade or business, or otherwise.’ McIntosh argued that �the problem with the constitutionalization of..lhe right to work means that the State...would be in violation of the citizens’ fundamental right whenever its economic policies fail to. provide work for anyone willing and able to work.’[935] He argues that its dependency on social and economic contingencies makes it meaningless as a constitutional right. In Belize Petroleum Haulers Association v Habet,[936] the Belize Court of Appeal found that the requirement in the Belize Petroleum Haulers Association Act that before the Department of Transportation could grant a licence to haul petrol to an applicant it had to have regard to whether the applicant was a member of the association and was prohibited from issuing a hauler’s licence to anyone unless recommended by the association, was a breach of the right to work.
Carey JA dismissed the association’s argument that the right to work was not enforceable but more in the nature of a constitutional privilege and liberty, as �semantic Terpsichore.’[937]In Brown Sugar Marketplace v AG,[938] the right to work again arose. The allegation was that a wall erected by the cruise ship docking facility which prevented its competitors from having direct access to cruise ship tourists on a boardwalk abutting all their properties was in breach of the competitors’ right to work. The case attracted immense media publicity. The Chief Justice found that the maintenance of the walls infringed the claimants’ right to work. The Court of Appeal took the view that since the cruise tourists could exit the docking facility and access the facilities of the claimants, albeit in a roundabout manner, their opportunity to earn a livelihood was not infringed.[939] The approach of the Belizean courts in interpreting the right to work seems to be that what is guaranteed is the opportunity to pursue a trade or profession without unlawful hindrance by legislation or administrative action.
C. The Rule of Law and Protection of the Environment
The 2004 Privy Council decision of Belize Alliance of Conservation NGOs v Department of the Environment and Belize Electricity Ltd[940] has become a cause celebre. The Department of the Environment, the department charged with ensuring environmental compliance, had granted approval for the electric company to build a massive hydroelectric dam in the pristine rainforest of Belize. An association of environmental NGOs challenged the vires of the process all the way to the Privy Council. It is noteworthy that the locus standi of the NGOs to challenge the process was never an issue and the Supreme Court readily embraced as fundamental the citizen’s right to challenge decisions affecting the public interest that might breach the rule of law. In a 3—2 decision, the Privy Council found that the process of obtaining environmental approval had complied with the country’s environmental laws.
In a passionate dissenting judgment, Lord Walker of Gestingthorpe was of the view that the last minute disclosure before the Board that crucial geological reports as to the integrity in the dam design had been withheld from the decision-making body was enough to quash the approval. He said:
Belize has enacted comprehensive legislation for environmental protection and direct foreign investment, if it has serious environmental implications, must comply with that legislation. The rule of law must not be sacrificed to foreign investment, however desirable (indeed, recent history shows that in many parts of the
world respect for the rule of law is an incentive, and disrespect for the rule of law can be a severe deterrent, to foreign investment)...The people of Belize are entitled to be properly informed about any proposals for alterations in the dam design before the project is approved and before work continues with its construction.[941]
Lord Walker framed what was a technical environment case squarely as a case about respect for the rule of law. While the majority preferred to view the process as �a political decision about the public interest,’ Lord Walker felt that the geological error in the Environmental Impact Assessment considered and approved by the Department of the Environment vitiated the approval. His dissent manifests a punctilious regard for the over-arching pre-eminence of the rule of law. Although the point was not taken before any of the courts, the requirement in the preamble of the Belize Constitution that there be policies of the state �which protect the environment’ — a requirement absent from the preambles of most Caribbean constitutions - could arguably have provided the normative basis for Lord Walker’s dissent. It could be argued that the inclusion in the preamble of the Belize Constitution of a requirement that �policies of state...protect the environment’ signalled that the framers of the Belize Constitution intended that environmental policies be especially scrutinized for compliance with the rule of law.[942]
D. The Reformed Preamble and the Protection of Indigenous People
In contrast, Cal v AG,[943] better known as the Maya land rights case, is notable for the open prominence accorded to the preamble of the Belize Constitution in the reasoning of the Chief Justice of Belize. The case raised before the Supreme Court the unprecedented issue of determining whether the protection from deprivation of property extended to cover customary land tenure of the Mayan people, the indigenous inhabitants of Belize. This issue, litigated often enough in other parts of the Commonwealth, was a novel one for the Caribbean. The case was a test case brought by villagers from the two Mayan villages of Santa Cruz and Conejo.[944] In essence, their argument was that by failing to demarcate and recognize the boundaries of their lands and by continuing to issue leases, grants and concessions over their lands, the government had failed to respect their customary land rights which were based on traditional land use and occupation of the Mayan people dating back before the time of English settlement of Belize. They contended that the government by its actions and inactions had breached several of their constitutional rights, namely, their right to life, to not be deprived of property and to not be discriminated against. They also contended that there was a breach of section 3, the opening section of Part II of the Constitution, the bill of rights, which set out the omnibus rights, including the right to �life, liberty, security of the person and the protection of the law.’[945]
After finding that there existed in southern Belize Maya customary land tenure and that the villagers of Santa Cruz and Conejo had proprietary interests in land, the question for the Supreme Court then was whether such interest constituted �property’ protected under the Constitution. The starting point in the reasoning of Conteh CJ was the preamble to the Belize Constitution �which by an amendment...now makes explicit reference to the collective group to which the claimants undoubtedly belong, namely, the indigenous peoples of Belize.’[946] The preamble provides:
Whereas the people of Belize.(a) affirm that the Nation of Belize shall be founded upon principles which acknowledge. faith in human rights and fundamental freedoms...(e) require policies of state which protect...the identity, dignity and social and cultural values of Belizeans, including Belize’s indigenous peoples..
The Chief Justice adopted the approach that �a generous and purposive interpretation is to be given to constitutional provisions protecting human rights and that a court is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a mature society.’[947] The Chief Justice concluded that the Maya right to land based on customary land tenure formed
a kind or species of property that is deserving of the protection the Belize Constitution accords to property in general. There is no doubt this form of property, from the evidence, nurtures and sustains the claimants and their very way of life and existence.[948]
It is difficult to take issue with the prominence accorded to the preamble by Conteh CJ. It was the legislature, after all, the elected representatives of the people, which, by a constitutional amendment in 2001, introduced a specific reference to �Belize’s indigenous peoples’ in the preamble, requiring that state policies protect them. The case was not appealed by the government. The notion that the preamble plays an important role as the normative or philosophical basis for interpreting the Constitution should be applauded. The extent to which issues of ethnicity, gender and minorities should be given recognition is topical in constitutional reform discourse in the Commonwealth.[949] Included in the constitutional reforms to the preamble of 2001 were also references to �ethnicity,’ �gender equality’ and persons with disability. These, however, have not yet attracted litigation. The constitutional amendment to recognize the indigenous people by the Belizean legislature and the ready application of it by the judiciary is illustrative of the dynamic complementarity of these two institutions in creating a �constitutional space’ for indigenous people in Belize.[950] The legislature and the judiciary were discharging their implied role of ensuring that the Constitution fulfils the aspirations of citizens of the state as reflected in the preamble.
The Maya also argued that their human security was being threatened. They hunted, fished, farmed and gathered communally for their physical survival. This, they said, was being threatened by the government’s refusal to respect their right to communal lands. Other than section 3 of the Belize Constitution which recognized �security of the person’ as one of the fundamental rights and freedoms to which each individual is entitled, the Belize Constitution contained no separate, detailed or enumerated right to �security of the person.’ In most other Caribbean constitutions, the equivalent to Belize’s section 3 is non-justiciable and considered by the Caribbean Court of Justice in AG v Joseph to be �in the nature of a preamble.’[951] This is because in those constitutions that opening section of their bill of rights is specifically excluded in the section that lists the rights that are enforceable. In Belize, the framers were wise to make that opening section specifically enforceable.[952] The Chief Justice was, therefore, not detained by doubts as to the justiciability of section 3. He found that
...the land they traditionally use and occupy plays a central role in their physical, cultural and spiritual existence and vitality. without the legal protection of their rights to and interests in their customary land, the enjoyment of their right to life and their very lifestyle and well-being would be seriously compromised and be in jeopardy. This, I find, will not be in conformity with the Constitution’s guarantees.[953]
The failure of most of the Caribbean to make the opening section of their bill of rights enforceable has hindered unnecessarily the development of human rights in the region. It has resulted in 30-year evolutionary creep by Caribbean judiciaries towards finding a meaningful role for that opening section. Tracy Robinson, for example, makes an argument for the opening section of Caribbean bill of rights to assume greater weight in constitutional interpretation as a normative guide.[954] It is entirely open to Caribbean legislatures through constitutional reform to amend their constitutions to give enforceability to it in the manner of Belize, St Kitts- Nevis, and Antigua and Barbuda.
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