Supreme Court
Action No. 299 of 1991
2nd October, 1992
MR. JUSTICE GEORGE B. SINGH.

Mr. Eamon Courtenay, Attorney?at?Law for appellant John Rivas
Mr. Gian.C. Gandhi, Solicitor?General, along with Mr. Dons Waithe for respondent Belize Advisory Council.

Constitution - Ouster clause - Whether the court has jurisdiction to inquire into a decision of the Belize Advisory Council in view of s. 54(15) of the Belize Constitution - Natural justice - Ultra vires - Excess of jurisdiction.

R U L I N G

This is a ruling on a preliminary point of law, requested by the Solicitor?General as Attorney?at?law for the Belize Advisory Council. This application was made under Order 36, rule 2 of the Supreme Court Rules, and the point of law to be determined is:

"That the Court has no jurisdiction to inquire into a decision of the Belize Advisory Council in view of section 54(15) of the Belize Constitution."

Section 54(15) of the Belize Constitution states:

"The question whether or not the Belize Advisory Council has validly performed any function entrusted to it by this Constitution or any other law shall not be enquired into by any court of law."

The facts giving rise to this application are as follows:

On 24th April, 1989, at the Central Criminal Session of the Supreme Court, John Rivas, then a private in the Belize Defence Force was convicted along with a fellow soldier (a third having absconded) of rape and forcible abduction. He was sentenced to eight years in prison. On appeal, the conviction was set aside because of certain misdirections in the summation by the trial judge. A retrial which was ordered did not materialize, because the alleged rape victim did not wish to testify a second time.

Consequently, and with effect from the 24th April, 1989, John Rivas was discharged from the Force by order of the Public Services Commission, under s. 25 of the Defense Act, which reads:

"A soldier of the regular force may be discharged by order of the Public Services Commission on the advice of the Commandant, Belize Defence Force at any time during the currency of any term of engagement for inefficiency or for any other reason."

Following this decision, John Rivas, through his attorney-at?law, appealed to the Belize Advisory Council pursuant to s. III of the Belize Constitution. On 19th September, 1991, the secretary of the Belize Advisory Council wrote to Rivas' attorney, inter alia, as follows: "Having revised the facts and records, and taking into consideration your submissions in writing, and all the circumstances of the case, Council found no sufficient reason to interfere with the decision of the Public Services Commission, and accordingly the Appeal is dismissed."

On 22nd October, 1991, leave was granted to John Rivas to apply for "an order of certiorari to remove into the Supreme Court and quash the decision of the Belize Advisory Council dated the 30th day of July 1991, dismissing the appeal of John Rivas from a decision of the Public Services Commission to discharge the said John Rivas from the Belize Defence Force, and for a declaration that the decision of the Belize Advisory Council is null and void for breach of the principles of natural justice".

On the 13th November, 1991, the Solicitor?General, as attorney?at?law for the respondent Belize Advisory Council, applied for and obtained leave to have the point of law set out above, tried as a preliminary point.

In supporting the proposition advanced on the preliminary point of law, the Solicitor?General submitted that the 'no certiorari' clause contained in s. 54(15) of the Belize Constitution, being clear and unambiguous, completely ousted the jurisdiction of the courts in matters concerning the Belize Advisory Council, that it is clear from reading the Constitution as a whole, with particular reference to the other 'no certiorari' clauses, that the framers of the Constitution and the legislature intended the prohibition to be absolute and that because of the uniqueness of the Belize Advisory Council, and having regard to the functions entrusted to it, its functions should not be under the control of the courts. The Belize Advisory Council, argues the Solicitor General, while being similar to the Privy Councils of Jamaica and Barbados, is even more powerful than those bodies, since it exercises jurisdiction over matters which are not entrusted to those bodies.

In arguing against the proposition, Mr. Courtenay based his submission on two grounds. The first is that, despite the terms of s. 54(15), which seeks to oust the court's powers of review over decisions made by the Belize Advisory Council, the Court nevertheless still has such powers of review where it is alleged that the Belize Advisory Council exceeded its jurisdiction. The second ground of Mr. Courtenay's argument is that, where a tribunal violates any of the principles of natural justice in deciding any matter before it, such tribunal shall be deemed to have acted outside its jurisdiction. Since it is here alleged that the Belize Advisory Council, failed to accord a fair hearing to John Rivas before dismissing his appeal, it is submitted that the Belize Advisory Council acted outside the scope of its jurisdiction, and thereby subjected its decision to review by the courts.

The Solicitor?General was heard in reply. While re?iterating the arguments raised in his previous submission, much of the reply contained arguments designed to show that John Rivas was in fact accorded a fair hearing on his appeal in accordance with settled legal authorities.

The question posed for determination by the court as a preliminary point of law is whether or not the Supreme Court has jurisdiction to inquire into a decision of the Belize Advisory Council, in view of s. 54(15) of the Belize Constitution. It is to be noted that, by referring to the term 'a decision', the question is couched in general terms, and does not ask the Court to inquire into any specific decision, such as the decision affecting John Rivas. In my judgment, therefore, arguments dealing with the question of whether or not John Rivas was accorded a fair hearing, are premature as regards the determination of the preliminary point of law.

It is appropriate at this point to review some of the authorities dealing with legislative provisions which seek to oust the inherent jurisdiction of the courts to inquire into decisions of inferior and administrative tribunals.

In Smith v. East Elloe R.D.C. [1956] 1 All E.R. 855 (H.L.) the appellant was deprived of her property by a compulsory purchase order made by the respondent and confirmed by the relevant ministry of government. Statute provided that an aggrieved party could within six weeks of the making of the order, challenge it in the High Court, and if this was not done within the time limited, the order could not "be questioned in any legal proceedings whatsoever." The appellant sought to challenge the order six years after it was wade, on the ground that it was made wrongfully and in bad faith. The House of Lords, by a majority of three to two, held that it was precluded by the ouster clause from inquiring into the validity of the order. There was no suggestion that the respondents acted in excess of their jurisdiction in making the order, or that there was any breach of the fundamental principles of natural justice, as is alleged in this case. In my view, therefore, Smith's case does not greatly assist this court.

The case of Anisminic Ltd. v. The Foreign Compensation Commission et al [1969] 1 All E. R. 208 (H. L.) dealt with a claim for compensation by the company Anisminic, in respect to minning property sequested by the Egyptian Government and sold to an Egyptian organization, T.E.D.O. The commission was set up by the British government to determine the extent of the compensation payable to the owners of property so sequestered. The Act establishing the commission contained a provision that "The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law." The commission made a determination that Anisminic was not entitled to any compensation under the Act since T.E.D.O, its successor in title, was not a British national when the matter eventually reached the House of Lords on appeal, the House decided by a majority of three to two, that in determining the question of nationality, the commission had exceeded its jurisdiction, therefore its purported determination was a nullity. In such a case, the courts could exercise their powers of review. It is worthy of note that all the Law Lords were agreed that once an inferior tribunal or administrative body acted outside its jurisdiction, the courts had the power to intervene, despite the existence of a 'no certiorari' clause. If, however, the tribunal acted within its jurisdiction, the courts were powerless to intervene, even if the tribunal's determination were exercised wrongly.

The third case I wish to look at is the case of Kemrajh Harrikissoon v. Attorney General (1979) 31 W.I.R. 348 (P.C.). In this case, the appellant, a teacher, sought to challenge the authority of the Trinidad and Tobago Teaching Service Commission to transfer him from one place to another against his will. The Teaching Service Commission was established by the Trinidad and Tobago Constitution of 1962, which contained a provision that, "The question whether (the Commission) has validly performed any function vested it in by or under this Constitution.... shall not be enquired into in any court." Here, the appellant alleged that his transfer from one place to the other against his will was a violation of his human rights. His appeal was however dismissed on the ground that he had not exhausted all the remedies open to him before seeking judicial redress. With respect to the 'no certiorari' clause, Lord Diplock, delivering the judgment of the Privy Council, stated, "The ouster of the court's jurisdiction effected by this section is in terms absolute. In their Lordships' view, it is clearly wide enough to deprive all courts of jurisdiction to entertain a challenge to the validity of an order of transfer on either of the grounds alleged by the appellant in the instant case...." (my emphasis). It is quite clear that Lord Diplock was here confining his assessment of the force of the 'no certiorari' clause with particular reference to those constitutional rights alleged by the appellant to have been violated. Nowhere is there an allegation that there was a breach of the rules of natural justice. In this case, the Privy Council explicitly refrained from considering the effect the dedision in Anisminic would have had on the ouster clause in the Trinidad and Tobago Constitution. The court preferred to leave this question open to be dealt with on a more suitable occasion.

This occasion manifested itself when the Privy Council came to consider the case of Thomas v. Attorney General (1981) 32 W.I.R. 375 (P.C.). In this case, the appellant, a police officer, challenged the disciplinary proceedings and the validity of orders removing him from the Police Service. These orders were made by the Police Service Commission established by the Trinidad and Tobago Constitution, which contained a provision, s. 102(4), that: "The question whether (the Police Service Commission) has validly performed any function vested in it by or under this Constitution... shall not be enquired into in any court." On behalf of the government, it was contended by the Attorney General, inter alia, that s. 102(4) effectively ousted the jurisdiction of the courts to inquire into the matter. This proposition was rejected by the Privy Council, which disapproved of Smith & East Elloc R.D.C. (supra) and embraced the position laid down in Anisminic v. F.C.C. (supra). Lord Diplock, delivering the opinion of the Board stated at page 393 - 394:

"... it is plainly for the court, and not for the commission, to determine what, on the true construction of the Constitution, are the limits to the functions of the Commission.... If the Police Service Commission had done something that lay outside its functions, such as making appointments to the Teaching Service, or purporting to create a criminal offence, section 102(4) of the Constitution would not oust the jurisdiction of the High Court to declare that what it had purported to do was null and void."

Some reliance is placed by the Solicitor?General on the case Re John Stanley Fisher, (1966) 9 W.I.R. 465, where the Supreme Court of Jamaica was asked to review the decision of a Court of Inquiry appointed by the Police Service Commission, which decision was affirmed by the Governor?General on the advice of the Jamaican Privy Council. In this case, Hercules, J(Ag) refused certiorari on the ground that an ouster clause in the Constitution prevented the court from inquiring into the exercise of the functions of the Governor?General and the Privy Council of Jamaica. In my view, that case has no application in the instant case, since in the first place, it was decided before Anisminic, and secondly, in 'Fisher, there was no challenge to the jurisdiction of the police Service Commission, the Governor General, or the Privy Council.

The final case I wish to refer to at this time is Nigerian Union of Journalists and Another v. Atty. Gen. Of Nigeria, [1986] LRC (Const) pg. 1. From 31st December 1983, Nigeria was under the rule of a Federal Military Government, which suspended parts of the Constitution and ruled by Military Decrees and Edicts. These decrees were specifically stated to be superior to the Constitution, and they contained 'no certiorari' clauses. The Nigerian Union of Journalists filed an action challenging a Decree which sought to curtail freedom of speech and expression, on the ground that such a Decree was unconstitutional, and thus null and void. In a very strained argument, the Nigerian Court of Appeal held that the 'no certiorari' clauses in the Decrees effectively ousted the jurisdiction of the courts to inquire into the validity of anything done under such Decrees or Edicts. In my considered opinion there are three compelling reasons why this case should not be followed in Belize. The first is that, as was clearly stated, as against the Decrees and Edicts, what remained of the Nigerian Constitution was not supreme. Such is not the case here, where our Constitution states, at s. 2, "This constitution is the supreme law of Belize, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void." The second reason is that, there is no indication that the Decrees and Edicts of the Federal Military Government contained any provisions designed to protect the fundamental rights of the citizen. Quite to the contrary. Chapter IV of the Nigerian Constitution, which contained the Human Rights provisions, were expressly removed from scrutiny by the courts, by Decrees No. 1 of 1984, No. 4 of 1984 and No. 13 of 1984, which Decrees were declared by the court to be superior to the constitution. In contradistinction to this, the Belize Constitution contains at Chapter II, provision designed for the protection of fundamental rights and freedoms, which are regarded as being supreme. The third reason for distinguishing the Nigerian case is that there the court specifically declined to consider the question whether, by promulgating the impugned Decrees and Edicts, the government acted in excess of their jurisdiction. In determining the point of law before me, the question of jurisdiction must be considered.

Based on the foregoing, I am satisfied that the Nigerian case has no application to the matter now before me and I decline to follow it.

Upon a consideration of all the authorities, it is clear that the Supreme Court has jurisdiction to inquire into the purported exercise of authority by an inferior court or tribunal, despite the existence of an ouster clause, where it is alleged that such court or tribunal acted in excess of the jurisdiction conferred upon it.

The next question for me to determine is this: If an inferior court or tribunal fails to accord a fair hearing to a person whose case is before it for consideration, does that court or tribunal thereby act in excess of its jurisdiction, or ultra vires?

In the case of Attorney General v. Thomas D'Arcy Ryan [1980] A.C. 718 (P.C.) the appellant was refused registration as a citizen of the Bahamas by the minister concerned, without being given a fair hearing. In delivering the Judgment of the Privy Council, Lord Diplock had this to say, (at page 727):?

"Their Lordships agree... that as an applicant for registration as a citizen of the Bahamas ... the respondent was entitled to a fair hearing in accordance with the principles of natural justice before his application was rejected by the Minister. By virtue of sections 7 and 8 of The Bahamas Nationality Act 1973, the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so, it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and, if he fails to do so, his purported decision is a nullity."

I should also like to refer to Action No. 52 of 1989 (Belize) an application by Winston Carr for certain declaratory orders, which was not cited in the instant case by either side in argument. In this action, Winston Carr alleged, inter alia, that his services as acting Labour Commissioner was terminated by the Governor?General in breach of the rules of natural justice, i.e. without affording him a fair hearing. S. 34(4) of the Belize Constitution states: "where by this Constitution the Governor?General is required to perform any function in accordance with the advice of, or after consultation with, any person or authority, the question whether the Governor?General has so exercised that function shall not be enquired into by any court of law". In that case, it was argued by the Solicitor?General that this section prevented the court from enquiring into the exercise, by the Governor?General, of her functions. In response to these arguments, the then Chief Justice stated, "Section 34(4) of the Constitution would appear to prohibit an enquiry by the court into the question raised by the application. But it is now firmly established that one limitation on such a provision ousting the court's jurisdiction is where the challenge to the exercise of the function by the Governor?General is the infringement of the fundamental rights guaranteed by the Constitution... See Thomas v. A.G. of T. T."

The question of 'ouster clauses, has also been widely canvassed by the writers of legal texts. For example, in Administrative Law, 6th ed. by H.WR. Wade, it is stated at pg. 724, "The law as now settled by the House of Lords is that these outster clauses (i.e., 'shall not be questioned' clauses) are subject to exactly the same doctrine as the older no certiorari clauses, namely, that they do not prevent the court from intervening in the case of excess of jurisdiction. Violation of the principles of natural justice, for example, amounts to excess of jurisdiction...." Similar pronouncements may be found in Halsbury's Laws 4th ed. Vol. I paras 52, 77 and 78, Commonwealth Law Bulletin, April 1991, pg. 702?703, and An Overview of The Public Law Revolution in the Commonwealth Caribbean, by Albert K. Fiadjoe, pg. 17?19.

The case of Re Alva Bain ? Suit No. 3260/87 ? High Court of Trinidad and Tobago (unreported) was also relied upon by the Solicitor?General in support of the non?justiciability of ouster clauses in the Constitution. In this case Blackburn J. declined, in the face of a 'no certiorari' clause, to enquire whether the President of Trinidad had consulted with the Prime Minister before appointing Mr. Bain as Chairman of the Public Service Commission. It is difficult not to sympathize with legal writers, such as Fiadjoe (supra), and G. Persaud, 'The Lawyer', July, 1989, who have criticized this decision. In any event, the act of the President in Bain's case does not appear to have been challenged on the basis of jurisdiction, as in the present case, so I am afforded little assistance from it.

The Solicitor?General also submitted that such an "august", "unique" and "powerful" institution as the Belize Advisory Council, should not be liable to have its decisions subject to the supervisory jurisdiction of the Supreme Court. With respect, I disagree. Unique or not, any institution, be it inferior court or superior tribunal, which deals with the legal and human rights of any subject, in any capacity whatsoever, must conform to the time - honoured and hallowed principles of fundamental rights and natural justice. Any allegation that there has been a breach of any of these principles in relation to any person must, in my view, be subject to inquiry by the Supreme Court, irrespective of the calibre of the institution in respect of which the allegation has been made.

Finally, the Solicitor?General submitted that the court should give a wide interpretation to the provisions of a constitution. This was the view adopted by the court in the Nigerian Union of Journalists v. A. G. (supra). I agree.

In the case A.G. of Trinidad and Tobago and Another v. Whiteman [1992] 2 All E.R. 924 (P.C.) Lord Keith, in delivering the Judgment of the Board, stated at pg. 927, "The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit, and this is particularly true of those provisions which are concerned with the protection of human rights".

Section 6(7) of the Belize Constitution states,

"Any court of other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time."

It cannot be denied that the Belize Advisory Council is an authority contemplated by the above provision, or that a fair hearing includes the right of all parties concerned to be heard.

What is the position where there is an allegation that an individual has been denied a fair hearing, but the body against whom the accusation is made is protected by a 'no certiorari' clause? In Thomas v. A.G. (supra) at page 394, Lord Diplock has this to say:

"There is also in their Lordship's view, another limitation upon the general ouster of the jurisdiction of the High Court by s. 102(4) of the Constitution; and that is where the challenge to the validity of an order made by the commission against the individual officer is based upon a contravention of 'the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations' that is secured to him by s. 2(e) of the Constitution, and for which a special right to apply to the High Court for redress is granted to him?by section 6 of the Constitution. 'Generalia specialibus non derogant' is a maxim applicable to the interpretation of constitutions. The general 'no certiorari' clause in section 102(4) does not, in their Lordships' view, override the special right of redress under section 6."

The present case, to my mind, is precisely the sort of situation which Lord Diplock had in mind. Clearly an ouster clause in a Constitution cannot take precedence over another provision in the Constitution which seeks to protect and preserve the fundamental rights of the individual.

I have been asked by the Solicitor?General to hold, as a matter of legal policy, that the court should be slow to assume jurisdiction to review the decisions of the Belize Advisory Council, in view of the 'no certiorari' clause. I must respectfully disagree. In my judgment, the court should act with alacrity in inquiring into any alleged or threatened violation of the principles of natural justice.

Turning to the point of law which was proposed for my consideration, in my judgment it must be answered in the negative.

I hold that where it is alleged that the Belize Advisory Council has arrived at a decision without having due recourse to the fundamental principles of natural justice, the courts are seized of jurisdiction to inquire into the validity of such a decision.

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