Supreme Court
Action No. 52 of 1983
10th March, 1983.
Moe, CJ.

Mr. Dean Barrow for the Applicant.
Mr. George Brown for the Respondent.

Applicant's acting appointment as Labour Commissioner terminated - Regulation 2.5 of the General Orders of the Public Service - Breach of principles of natural justice - General Orders not applicable to appointment of post of Labour Commissioner - Whether exercise of Governor-General's power under Section 107 of Constitution can be challenged in Court - Section 34(4) of Constitution - Limitation to Section where the challenge to the exercise of the function of the Governor-General is the infringement of a fundamental right - Legitimate expectation to confirmation in a post - Language of Section 107 of Constitution does not give right, interest or legitimate expectation to be confirmed in any post - No other provision so confers - No right therefore infringed - No breach of natural justice in not affording a right to a fair hearing as the Plaintiff had no right, interest or legitimate expectation - No requirement that he be heard on the matter - Section 20 of Constitution - Right to apply to Supreme Court for redress - If misused will diminish its importance and value - Application dismissed - No order as to costs.

DECISION

The Applicant is a public officer holding the post of Labour Inspector. On the 16th November, 1981 he was appointed to act with effect from 6th October, 1981 as Labour Commissioner which post is a Head of Department. That post of Labour Commissioner became vacant on the 17th December, 1981. The Applicant acted in that post until 7th September, 1982 and left the country to undergo a course of training which he pursued until his return to the country on the 8th November, 1982. During the period of the course of training he did not enjoy any of the benefits of the office of Labour Commissioner. He resumed acting as Labour Commissioner on 9th November, 1982 and remained so acting until he received a letter on the 8th February, 1983 informing him that his acting appointment was terminated by the Governor-General with effect from the 9th February, 1983. There was no allegation of any kind made against the Applicant, no inquiry into the performance of the Applicant while acting in the post and no reason was given for the termination of the acting appointment.

By this Application made under the Supreme Court (Constitutional Redress and Reference) Rules the applicant seeks redress under section 20 of the Constitution. He moves the Court to declare: - (i) that the termination by the Governor-General of his acting appointment as Labour Commissioner is contrary to Regulation 2.5 of the General Orders for the Public Service and thus invalid; (ii) that the termination is in breach of the rules of natural justice and thus contrary to law; (iii) that the termination is in breach of section 17 (1) of the Constitution; and (iv) that he is entitled to have the termination rescinded and be confirmed in the post of Labour Commissioner.

He alleges firstly, that there was breach of Regulations 2.5 inasmuch as the termination was for a reason other than unsatisfactory performance on the applicant's part in the office. Secondly, that there was a denial of natural justice in that there was termination (a) without giving the Applicant any reasons; (b) without first alleging unsatisfactory performance and giving the Applicant an opportunity of answering the allegation, and (c) without the holding of an enquiry. Thirdly the termination was an unjust deprivation of his property right in the salary, perquisites and privileges attaching to the office of Labour Commissioner.

It was submitted by the Solicitor General that Regulation 2.5 of the General Orders of the Public Service does not apply to the matter of appointment to the post of Labour Commissioner and has no bearing on the determination of the issues. Counsel for the Applicant quite understandably gave no reply to that submission; in effect conceding the point. There was no dispute that the regulation concerned is one of those contained in the General Orders for the Public Service found in Statutory Instrument No. 42 of 1982. Nor that those Regulations were made by the Governor-General in exercise of her powers under section 106 of the Constitution which by subsection 3 empowers her to make regulations on any matter relating to, inter alia, the management and control of the public service. The said section 106 by subsection (6) stipulates that the provisions of the section (and thus regulations made thereunder) shall not apply in relation to - (a) any office to which section 107 of the Constitution applies. The office of Labour Commissioner is one to which section 107 of the Constitution applies. I uphold the submission that Regulation 2.5 of the General Orders for the Public Service does not apply to this matter and the application for declaration (I) fails.

The Solicitor General further submitted that appointment to the post of Labour Commissioner being governed by section 107 of the Constitution, the matter of the termination of the Applicant's acting appointment to the post cannot be challenged in this Court. I therefore turn to see whether there is jurisdiction to go any further.

It is clear from the remaining declaration for which the Applicant moves that he seeks to have the Court decide on the validity of the Governor-General's termination of his acting appointment. At this point I set out section 107 of the Constitution in full. It provides: - "

(1) This section applies to the offices of Commissioner of Police, Commandant of the Belize Defence Force, Secretary to the Cabinet, Permanent Secretary, head of a department of government, any office for the time being designated by the Public Service Commission as an office of a chief professional adviser to a department of government, any office of Ambassador, High Commissioner or other principal representative of Belize in any other country or accredited to any international organisation and any other office designated by the Public Service Commission.

(2) The power to appoint persons to hold or to act in offices to which this section applies (including the power to confirm appointments) and the power to exercise disciplinary control over persons holding or acing in such offices and the power to remove such persons from offices shall vest in the Governor General acting in accordance with the advice of the Prime Minister.

(3) References in this section to a department of government shall not include the office of the Governor-General, the Department of the Attorney General, the Department of the Director of Public Prosecutions, the Department of the Auditor-General or the Police Force."

By subsection (1) the section applies to the office of a head of department and the Labour Commissioner is one such. Therefore in terminating the applicant's acting appointment as Labour Commissioner the Governor-General was clearly performing a function vested in her by the Constitution. The question whether she has performed it validly falls within the ambit of section 34 (4) of the Constitution which provides: - "Where by this Constitution the Governor-General is required to perform any function in accordance with the advice of ----- 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."

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 Courts 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 and for which the right of redress is secured by section 20 of the Constitution. See Thomas v A.G. of T.T. [1982] A.C.

The Applicant alleges that in the exercise of the function by the Governor-General there was a breach of the rules of natural justice i.e. a denial to him of a fair hearing which is one of the most elementary of rights to which an individual is entitled. This was not specifically stated nor was submitted as one of the Constitutional rights infringed but it was stated and submitted as the basis for a specific allegation of infringement of a constitutional right. That is that the infringement of the right to a fair hearing makes the exercise of the function a wrongful discharge of it and thus a wrongful deprivation of property, protection from which is secured by the Constitution. In the circumstances I hold I have jurisdiction to hear the remainder of the application and proceed to determine whether his constitution rights have been infringed.

I consider first the allegation of deprivation of property protection from which is secured by section 17 of the Constitution. The portion of that section which may be stated for these purposes provides "No property of any description shall be compulsorily taken possession of and no interest in or right over property of any description shall be compulsorily acquired except by or under a law" - What then is the property, interest or right over property of which he says he has been deprived? As indicated above he says it is his property right in the salary, perquisites and privileges attaching to the office of Labour Commissioner. How does this come about? Did the Applicant have any such right?

It is clear that he is not saying that he has that right to the salary by virtue of appointment as Labour Commissioner. He was not so appointed. It is clear also that he is not claiming deprivation of the salary while acting as Labour Commissioner. As I understood the submission of the Applicant his right is based on his legitimate expectation to confirmation in the office of Labour Commissioner. The proposition was urged that legitimate expectation to confirmation in a post is created by allowing a person to act in the post for a length of time. He had such an expectation by being allowed to act in the post of Labour Commissioner for a length of time. The thrust of the argument was that the period was for a year. While it is not necessary for my decision I give my finding that the applicant acted in the post for a period of 11 months - 6th October, 1981 to 7th September, 1982 and again for a period of 3 months - 8th November, 1982 to 9th February, 1983.

I look for the answer to the question in the framework provided for the employment concerned. I turn to section 107 of the Constitution which governs the questions of appointments to, acting appointments to, confirmation of appointments to and removals from the office of Labour Commissioner. I can find nothing in the language of that section by which anyone (including the applicant) is given the right, interest or legitimate expectation to be confirmed in any post. The applicability of the proposition clearly would be by the importation into the section of something that it does not say. What then is the basis for this importation? No other provision of the Constitution itself was shown as conferring such a right or legitimate expectation either expressly or implicitly. The only basis urged for the importation into that section of a legitimate expectation to confirmation in a post is Regulation 2.5 of the Central Order for the Public Service. Indeed the Regulation was the only basis provided for the proposition itself the legitimate expectation to confirmation in a post is created by allowing a person to act in the post for a length of time. But Regulation 2.5 is the very Regulation which the Constitution itself says does not apply to appointments to and confirmation in offices to which section 107 applies. The Applicant may very well have had the expectation he sets up by reference to the Regulation 2.5 but I find no basis for importing the principle of that regulation into the provisions of section 107 of the Constitution. The Applicant has not shown there was a right or interest in property of which he is being deprived and consequently has not established an infringement of his right under section 17 of the Constitution. That basis for the limitation on the ouster of the Courts jurisdiction is accordingly removed.

I now look at the allegation that there was infringement of the fundamental right to a fair hearing. The Applicant's case rests on the proposition that if a person is allowed to act in a post in a fashion which creates the legitimate expectation to confirmation in the post, there cannot be a refusal to confirm the expectation unless the rules of natural justice are observed i.e. the person is given the opportunity to be heard on the matter. Reference was made to two cases Schmidt v. Secretary of State, Home Affairs [1969] 2 Ch. 149 and Molanes v. Onslow Fane [1978] 3 A.E.R. 211. Reliance was placed on the following statement in the judgment of Lord Denning M.R. in the Schmidt case (supra) at page 170. "The speeches in Ridges v. Baldwin [1964] A.C.40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right, interest or, I would add, some legitimate expectation of which it would not be fair to deprive him without hearing what he has to say."

The Schmidt case was concerned with whether the Plaintiffs who were aliens and had been given permission to stay in England for a period had a right (or legitimate expectation) to be allowed to remain. The decision was they had no such right (or legitimate expectation). McInnes Case was concerned with the question whether on an application by the Plaintiff for a manager's licence the British Boxing Board of Control was required to give the Applicant on oral hearing and was required to give reasons for its refusal of the licence. The decision was against the Plaintiff.

The Applicant did not seek to equate the circumstances of those cases (refusal of applications) with the circumstances of this case but I look to see if the proposition is applicable to the Applicant's situation. The first question which arises is what is his right, interest or legitimate expectation? The reasoning followed with respect to the allegation of deprivation of property would also apply here and by that reasoning I have already reached an answer to the question. His application for declaration (II) thereby fails. The Applicant has not shown any infringement of his fundamental rights under the Constitution. Since none of the first three declarations sought is available to the Applicant, there is no basis for the fourth declaration sought.

The Applicant evidently has agitated a matter of concern to him and probably of other public officers but the nature and content of the application and the decision I have reached prompt this observation. The right to apply to the Supreme Court under section 20 of the Constitution for redress if any fundamental right or freedom has been, is being or is likely to be contravened is an essential guarantee of those rights and freedoms. But misuse of the right to apply will diminish its importance and value. It is not every allegation of an infringement of those rights and freedoms that merits an application to the Court under the section which itself recognizes this in a proviso to it.

The result then is that the application is dismissed and in view of all the circumstances I made no order as to costs.

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