Supreme Court
Action No. 47 of 2002
12th February, 2002
A.O. Conteh, C.J.

Ms. Lois Young Barrow S.C. for the Applicant.
Mr. Elson Kaseke, Solicitor General, with Ms. Minnet Hafiz, Crown Counsel, for the Respondent.

Judicial Review - Preliminary Objection by Respondent that the proceedings irregular because of failure to cite Attorney General as Respondent - Sections 2 and 42(5) of the Belize Constitution - Whether judicial review proceedings "civil proceedings" - Whether Attorney General a necessary or proper party to such proceedings.

J U D G M E N T

1. The Applicant in this application is seeking leave of this Court to launch by way of judicial review a challenge of a Statutory Instrument made by the Minister of Budget Management, Investment and Public Utilities pursuant to the Telecommunications Act - Chapter 229. This Statutory Instrument is No. 11 of 2002.

2. The Applicant is seeking leave to move this Court to declare that the Minister acted ultra vires his powers under the Act; to have this Court make an Order of Certiorari quashing the decision of the Minister to make the Order; an Order of Certiorari to quash Statutory Instrument No.11 of 2002; an Order restraining the Minister from making any further Order interfering with the charges and collection of revised tariffs by the Applicant until the hearing of the Applicant's judicial review motion; an Order restraining the Minister from making an Order or Statutory Instrument on the basis of breaches alleged to have been committed by the Applicant as stated in the Statutory Instrument, and for consequential directions and an order for costs.

3. In this application it has named the Minister as the Respondent. Against this, the learned Solicitor General has launched what can best be described as a pre-emptive strike by way of a preliminary objection. That is to say, the learned Solicitor General is asking the Court in limine to strike out the Applicant's application for leave since he has cited the wrong Respondent, contrary to section 2 as read with section 42(5) of the Constitution of Belize. In other words, the Solicitor General is asking, in effect, that the proceedings commenced by the Applicant in this matter be set aside for irregularity.

4. I was however, troubled by the format of the Solicitor General's preliminary objections given the requirements of Order 76 Rule 2 of the Supreme Court Rules which provides.

   "3. When an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the summons or notice of motion."

5. The objections by the learned Solicitor General are in a format headed "Preliminary Objections by Solicitor General". This is neither a regular summons nor a notice of motion. Instead, it sets out the several objections the learned Solicitor General wants to urge on the Court why the Applicant's application should be struck out. The format goes on under the caption "Submissions" to argue why the various objections should succeed, rounding off with "Respondent asks for costs".

6. Be this as it may, I however indulged the learned Solicitor General and in any event, the learned Attorney for the Applicant Ms. Lois Young Barrow S.C., did not raise any objection, but insisted instead that the Solicitor General should only be heard on the first objection as the rest could come in later in answer to the application for leave. I accordingly, allowed the learned Solicitor General to argue his objection that the application itself should, in limine, be struck out as the Applicant has cited the wrong party.

7. The learned Solicitor General submitted that in virtue of the supremacy of the Constitution as stipulated in section 2, and the constitutional provision in section 42(5) of the Belize Constitution that in "civil proceedings" against the state, the proper Respondent or Defendant is the Attorney-
   General.
   
   Consequently, because the Applicant has cited the Minister of Budget Management, Investment and Public Utilities as Respondent in these proceedings, the wrong Respondent is before the Court.

8. It is I think instructive to set out in full the provision of subsection (5) of section 42 of the Belize Constitution:

   "5. Legal proceedings for or against the State shall be taken in the case of civil proceedings, in the name of the Attorney General and, in the case of criminal proceedings, in the name of the Crown".

9. From this seemingly innocuous provision of the Constitution, the learned Solicitor General has set out to fashion a missile to blow the Applicant's case out of the water, if not sink it altogether, even before it sets sail. The Solicitor General submitted that in any civil proceedings involving the State, it is by the Constitution, mandatory that the Attorney-General be a party. He further submitted that as the Minister of Budget Management, Investment and Public Utilities was exercising governmental powers when he made Statutory Instrument No.11 of 2002, if a challenge of that instrument is sought, as the Applicant is seeking leave by the present application to do, this would be "civil proceedings" and therefore by the Constitutional provisions, the Attorney General is the proper Respondent. Therefore, the Minister, so the learned Solicitor General's argument goes, is not the proper party. The Attorney General should have been the sole Respondent in these proceedings when they were commenced, ergo, the application should be struck out. Finally, the learned Solicitor General submitted nothing in any Act in Belize or in the Supreme Court Rules of Belize or the English Rules can override section 42(5) by virtue of section 2 of the Belize Constitution.

10. The learned Solicitor General understandably put much store on a decision of this Court in Supreme Court Action No.253 of 1998, Said Musa v Harry Lui and William Tillett (unreported). This case like the instant one, was concerned with leave to apply for judicial review of a decision made by the then Prime Minister to appoint Harry Lui and William Tillett to be Commissioners of Inquiry pursuant to Statutory Instrument No. 29 of 1998. At the initial ex parte stage, Nathan J. ordered that the application be heard inter partes. At the inter partes hearing for leave, the Applicant's Attorney applied for leave to join the Attorney General as the third respondent and to have all papers served on him. The Attorney General was not joined by the Applicant in his leave application. The then Solicitor General stoutly raised a preliminary objection, as the learned Solicitor General has done before me, to the effect that the action was brought in breach of section 42(5) of the Constitution and should therefore be struck out.

11. Sosa J., as he then was, in striking out the action, said, among other things that:

    "It is beyond question, in my judgment, that the Attorney General is a proper party to an action or procedure such as this one. The very phraseology employed in instituting the action makes it plain that the applicant seeks judicial review in respect of acts of the Government or acts of State. By section 42(5) of the Constitution, this procedure or action, if one can properly regard it as an action despite its introduction in England as an entirely new form of procedure in 1977, being a civil proceeding, was required to have been commenced against the Attorney-General."

    The learned Justice then concluded:

    ".....the launching of these proceedings against the Respondent only resulted in fundamentally flawed proceedings which cannot stand, absent joinder of the Attorney-General."

12. In addition to dismissing an application for joinder of the Attorney General, the learned Justice upheld the preliminary objection of the Respondents and struck out the action.

13. Let me say right away that I was puzzled and indeed troubled, when I reflected on this submission of the learned Solicitor General. It dawned on me that the framers of the Belize Constitution must themselves be troubled by this; and those of their number who have gone to the great beyond must turn in their graves, and those who are still on this side of the great divide, will pause in their tracks, if they realize that so seemingly an innocent provision in the Constitution could be used to shut the doors of the Courts of this country in the face of citizens who perceive some wrong that may well turn out to be good ground for complaint as the result of some exercise of governmental power. This surely, could not have been intended for a Constitution under whose protective shade every citizen should find succour when necessary.

14. As a result of some deep reflection and analysis, I am unable to accede to the weighty submission put forward by the learned Solicitor General. I say weighty, because every Court must pay the utmost deference and yield in the face of an invocation by a party before it of Constitutional propositions, if well grounded.

15. The kernel of the learned Solicitor General's submission was that the Attorney General, who should be the Respondent before the Court in these proceedings, was not cited by the Applicant and therefore its suit must be struck out. I tried to point out to the learned Solicitor General the ameliorative, indeed curative powers of the provision of Order 17 Rule12 of the Supreme Court Rules which opens in the context of his submission with, in my view, these stirring words:

    "No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties..."

    The rule goes on that:

    "The Court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiff or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter, be added."

16. The learned Solicitor General however submitted this provision, beneficent as it is, in my view, was unavailing in the face of the Constitution's stipulation that "in the case of civil proceedings", legal proceedings for or against the State shall be taken in the name of the Attorney General. He relied on the decision in the Said Musa case (supra) of this Court. I notice however that Rule 12 of Order 17 was nowhere mentioned in the learned judge's decision but much stress was laid instead on Rule 13 about application to add or strike out or substitute a plaintiff or defendant.

17. More fundamentally however, I venture to think, with respect to the decision in the Said Musa case (supra) that it was arrived at by a possible misapprehension of the nature and character of the proceedings themselves; and possibly the attorneys did not help the Court in that instance, in the light of the legal learning and judicial decisions in this area of the law that proceedings such as the instant one before me and like that in the Musa case, are sui generis and not "civil proceedings" simpliciter. This is possibly due to the fact that in this jurisdiction like, I suspect in other sister jurisdictions in the region, we do not have what is called the Crown Side in the jurisdictions of our Supreme Court as a distinct division.

18. I see no inconvenience or irregularity in citing the Minister as the Respondent to the Applicant's application, as Farwell L.J. said in Dyson v A.G. [1911] 1 K.B. 410 at p.423:

    "if inconvenience is a legitimate consideration at all, the convenience in the public interest is all in favour of providing a speedy and easy access to the Courts for any of His Majesty's subjects who have any real cause of complaint against the exercise of statutory powers by Government departments and Government officials."

    Again in an earlier case, Deare v A.G. [1835] 14 & C Ex. 197 at p. 208, Lord Chief Baron said:

    "It has been the practice, which I hope never will be discontinued, for the Crown to throw no difficulty in the way of proceedings for the purpose of bringing matters before a Court of justice when any real point of difficulty that requires judicial decision has occurred."

19. I can only adopt with approbation the sentiments in these two decisions. It could not have been intended that the Constitution would be used as a ball and chain to knock down a citizen's attempt in independent Belize to come to Court to vindicate a perceived right in the face of an alleged wrongful exercise of governmental or statutory power.

20. Section 42(5) in my view, is only declaratory and does not provide a procedural code for the conduct of litigation involving the State. It would in my view be very odd if this section can be used to deny a litigant access to the Courts simply because the Attorney General is not cited in a litigation where the citizen perceives the wrong as being done by an officer of the Government whom in fact he cites in his challenge in Court.

21. Much was made by both sides as to the meaning and effect of the expression "civil proceedings" in section 42(5) of the Constitution.

    The learned Solicitor General submitted that it must include the practice and procedure in the civil division of the Supreme Court and by extension includes cases where remedies are sought for wrong by Government officials. Therefore he submitted the Attorney General is the only proper party to the application.

22. Ms. Young Barrow S.C., on the other hand, argued that "civil proceedings" as used in section 42(5) of the Constitution should be as is defined in the Crown Proceedings Act - Chapter 167 of the Laws of Belize, Revised Edition 2000, in particular, in section 2(1) which excludes from the meaning of "civil proceedings" proceedings on the Crown Side. She submitted that judicial review proceedings such as the instant one before me, fall into the Crown side, and that in such proceedings there is no lis inter partes as such.

23. It must be remembered that though the expression "civil proceedings" is used in section 42(5) of the Constitution, it is nowhere defined; though where definitions are necessary the relevant provisions in section 131 spell them out. This is not surprising for as I have pointed out above the section is not a procedural code. Judicial review proceedings did not in my view arrive in Belize with the attainment of independence in 1981. It is salutary to remember that under Part IV of the Supreme Court of Judicature Act -Chapter 91 of the Laws of Belize, Revised Edition 2000 dealing with the jurisdiction and law of this Court, it is provided in subsection (2) of section 18 as follows:

    "(2) Subject to rules of Court, the jurisdictions, powers and authorities hereby vested in the Court shall be exercised as nearly as possible in accordance with the law, practice and procedure for the time being in force in the High Court of Justice in England."

    Under Part VII dealing with the Practice and Procedure of the Court, it is provided in section 60 as far as is material here as follows:

    "60. The practice and procedure of the Court -

    (a) in its general civil jurisdiction shall be regulated by this or any other Act or by rules of Court and where no provision is made, by the practice and procedure in the High Court of Justice in England."

24. I have set out these statutory provisions of this Court's procedural powers to show that even though it has powers under section 21 to issue orders of mandamus, prohibition and certiorari (formerly prerogative writs) because of the absence of local rules, liberal use is often made in this Court to the applicable rules of the English High Court to conduct litigation in these matters. In England legal proceedings concerning these matters are taken in what is referred to as the Crown Side of the Queen's Bench Division, because of the historical origins and evolution of the remedies. Legal proceedings in the Crown side are those means by which the Queen's Bench Division came to exercise the ancient jurisdiction of supervising the inferior courts, commanding magistrates and others such as public authorities to do what their duty requires in every case where there is no specific remedy (or no equally convenient and effective method of appeal) and protecting the liberty of the subject by speedy and summary interposition. See Halsbury's Laws of England, Vol. II 4th Edition at paragraph 1451 where the learned editors cited Blackstone's Commentaries (14th Ed.) and Coke's Institutes as authorities for this.

25. This supervisory jurisdiction used to be exercised principally by the prerogative writs of habeas corpus, certiorari, mandamus and prohibition. Today in Belize, jurisdiction concerning these matters are statutory as I have stated earlier and the remedies are now styled orders - See section 27 of the Supreme Court of Judicature Act - Chapter 91. An important component of this power of superintendence touching and concerning the liberty of the subject is provided for in the writ of habeas corpus. Through this remedy the subject was able to question and test the validity of his detention by public officers and others. This remedy was available in Belize even before the advent of the protection of personal liberty provided for in section 5 of the Constitution at independence in 1981. Thus, section 30 of the Supreme Court of Judicature Act; which predates the Constitution itself, although the latter affirms and establishes the Supreme Court, provides as follows:

    "The common law right to the writ of habeas corpus, as confirmed and regulated by the Habeas Corpus Act 1679 and extended by the Habeas Corpus Act 1816, shall be part of the law and procedure of Belize and, subject to any rules of court, shall be granted and issued as nearly as possible in accordance with the practice and procedure for the time being in force in regard to that writ in the High Court of Justice in England."

26. Therefore today in Belize in terms of Crown side practice and procedure even though we may have local statutory equivalent of the applicable remedies, there is a kind of umbilical cord with the practice and procedure in England in the absence of local rules governing this area of the law. I must hasten to add that this recourse to English practice and procedure is itself statutorily provided for as I have tried to point out.

27. Therefore in my view, notwithstanding the use of the expression "civil proceedings" in section 42(5) of the Constitution, I do not think that the matter is as simple as the learned Solicitor General has contended that all civil proceedings involving the State must be taken in the name of the Attorney General. It is my humble view that in "civil proceedings" involving the application of what were formerly prerogative writs, now orders, and there are no local rules of practice and procedure available, recourse perforce, must be made to the practice and procedure in England. In England, judicial review applications and procedure do not always involve the Attorney General as a party, unless the action giving rise to the application emanates from his office. It is only decisions and actions which are made in a public law context that are subject to judicial review. The proceedings before me are entitled "The Queen and The Minister of Budget Management Investment and Public Utilities (the offending public body or authority) ex parte Belize Telecommunications Limited" (indicating the person who is bringing the application).

28. The issue whether proceedings involving judicial review are civil proceedings in which the Attorney General must always be a party has come up for consideration in this jurisdiction and sister jurisdictions in the region, in one case culminating in the Privy Council. I have mentioned earlier the decision in the Said Musa case. I am, with respect, not persuaded by the reasoning and conclusion arrived at in that case. In the Minister of Foreign Affairs, Trade and Industries v Vehicles and Supplies Ltd. and Another [1992] LRC (Const) 720, a case from Jamaica in which this very issue came up for resolution, that is, whether in judicial review applications the Attorney General was a necessary party instead of the Minister of Foreign Affairs, Trade and Industries, who had made orders under the Trade Act of that country which the Applicant was seeking to impugn, the Jamaican Court of Appeal (Rowe P., Carey and Forte J.A.) unanimously held that because the proceedings were on the Crown side, the Attorney General in that application was neither a necessary nor a proper party to the action. This conclusion was reached after an instructive survey of the origins and development of this area of public law by all the three learned justices. Rowe P. stated at page 731:

    "I find Crown side proceedings do not fall to be dealt with under the Crown Proceedings Act. The direct consequence of this is that there is no statutory requirement for Crown side proceedings to be commenced against the Attorney General and that in the instant case the Attorney General was neither a necessary nor a proper party to the action."

    And at p.732 he concluded:

    "…proceedings for an order for leave to issue an order of certiorari are not civil proceedings."

    Carey J.A. analyzing the restrictions in section 16 of the Jamaican Crown Proceedings Act against granting injunctions or orders against the Crown if the effect would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown, concluded at p.738 that:

    "The restrictions against such orders is directed, however, at civil proceedings. The Act defines such proceedings which in England would be taken on the Crown side of the Queen's Bench Division. Consequently all proceedings for prerogative orders, viz certiorari, prohibition and mandamus would not come within the ambit of the provision". (emphasis added)

29. On appeal to the Privy Council, one of the questions expressly certified as of public importance that ought to be submitted for resolution was:

    "(4) Should the Attorney General be named as the respondent in these proceedings instead of the Minister of Foreign Affairs, Trade and Industry?"

    Lord Oliver of Aylmerton delivering the judgment of the Board said at p.747 of the report:

    "As regards the last of these questions their Lordships entertain no doubt whatever that the Court of Appeal was correct in concluding that the proceedings were not 'civil proceedings' as defined in the Crown Proceedings Act, and that the appellant and not the Attorney General was the proper party to the proceedings instituted for the purpose of reviewing the exercise of his statutory powers."

30. I am therefore fortified in my view that, with the greatest of respect to the provision of section 42(5) of the Constitution, the Minister in question here is a necessary and proper party to be the respondent in this application whereby the exercise of his statutory powers is being called into question. To name the Minister as the respondent in proceedings that involve an application for the prerogative orders does not conflict with the provision of section 42(5) especially where in an important area of public law we have to rely on the practice and procedure of the Crown side in England.

31. The learned Solicitor General however, urged on me the decision of the High Court of Barbados in the case of C. O. Williams Construction Ltd. v Blackman and Another (1989) 41 WIR 31, and the decisions of the Board of the Privy Council in the Hong Kong cases of Re a firm of Solicitors (1991) LRC (Const) 764; and Than v Cameron (1993) 2 LRC 641, to find that the Attorney General should have been the respondent to this application before me as it is "civil proceedings" for the purposes of section 42(5) of the Constitution. I cannot, with respect, accede to this. This application is about the exercise of ministerial power against which orders that were formally prerogative orders are being sought. I do not conceive of it necessarily as "civil proceedings" in terms of the provision of section 42(5) of the Constitution that would necessitate it being brought against the Attorney General. I do not think the cases relied on by the learned Solicitor General assist me very much in this respect. These cases come from jurisdictions (Barbados and Hong Kong) that, unlike Belize, have their own autochthonous statutory provisions in this area of public law which are radically different from the practice and procedure in this jurisdiction. Sir Denys William, the learned Chief Justice in the Williams Construction case from Barbados, for example, in analyzing that country's Administrative Justice Act which provides for relief against administrative acts or omissions by way of judicial review, found that there an applicant is required to give notice of the application to the Attorney General and to furnish him with copies of the statement and every affidavit in support; also that the rules under that Act do not require that leave be obtained before making applications for judicial review. A position that is clearly different in the practice and procedure in this area of the law in Belize and the United Kingdom.

32. In Belize to obtain relief by way of mandamus, certiorari and prohibition, recourse is necessary to the practice and procedure in England for want of local rules. This does not in my view, necessarily render such proceedings "civil proceedings" in terms of section 42(5) of the Constitution that would have the Attorney General always as a respondent.

33. It is for these reasons that I was unable to accept the preliminary objection of the learned Solicitor General and allowed the attorney for the Applicant to urge the application for leave as I find that the Minister of Budget Management, Investment and Public Utilities, is a necessary and proper respondent to this application before me. After all, it is the Minister's order, decision and action that the Applicant is seeking to challenge by judicial review with the hope that it may, if it gets to the hearing stage, and is successful, obtain the orders it is requesting of this Court directed against the Minister.

34. Let me in conclusion say that because judicial review proceedings involve public law issues, there is therefore, I think, no true lis inter partes. Therefore in my view, judicial review proceedings are not necessarily "civil proceedings" in the sense mentioned in section 42(5) of the Constitution.

To be sure, here in Belize, nearly always the practice has been to cite the Attorney General in such proceedings. But the Attorney General per se, for the purposes of these proceedings is not a necessary or proper respondent always to any and every judicial review application. In public law, almost always, the wrong of which an applicant for judicial review seeks redress before the Court would have been committed by a functionary of the State or other authority exercising public or statutory powers and not necessarily the Attorney General himself. It is therefore, I think, just, fair and proper that the responsible officer or authority be cited as a respondent. But the Attorney General, absent his own involvement in the decision or action against which judicial review is being sought, may not necessarily be a respondent.

----------OO----------