ACTION NO. 65

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BEFORE the Honourable Abdulai Conteh, Chief Justice.

APPEARANCES:
Mr. Oscar Sabido S.C. and Mr. Kirk Anderson for the Applicant.
Hon. Godfrey Smith, Attorney General; Mr. Edwin Flowers S.C., Solicitor General and Miss Tanya Longsworth, Crown Counsel for the First Respondent.
Mr. Fred Lumor and Mr. Michel Chebat for the Second Respondent.

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JUDGMENT

News that a judge of the Supreme Court is to appear before any body for the purposes of investigation is certainly of general public interest. This must be so because of the position of a judge in nearly every society. It has been said and rightly so; in my view, that society attributes honour, if not veneration, learning if not wisdom, together with detachment, probity, prestige and power to the office of a judge. Therefore, news of any probe concerning a judge would elicit public attention, whether of the concerned or the plainly curious. This may be for the public good.

But the public weal itself will be damaged if the news is not handled with care and circumspection; for it may inevitably result in the corrosion of public confidence in the judiciary itself, with deleterious effects on the administration of justice as a whole.

The public right to know and be informed is one which the courts ought always to protect, but this must be balanced with the way that knowledge or information is purveyed. Anything tending to convey unsubstantiated rumours, idle gossip or the salacious must be restrained, particularly in a society such as we have in Belize, which is a veritable fish bowl for almost every public office holder. Otherwise, the right to know becomes corrupted with the zeal to feed frenzy on unsubstantiated rumours and stories. This will be a positive disservice to all Belizeans, for when facts and fiction collide, faction is the result.

This is why I regret the way in which some sections of the media covered the developments concerning the applicant that have culminated in this application before me. And the Applicant has, not without reason, complained. But I am satisfied that none of the parties to this application is in any way responsible for the less than satisfactory manner in which some sections of the press tried to portray the applicant. It is therefore reassuring to note the fact that the President of the second Respondent, the Belize Bar Association, has filed an Affidavit in these proceedings distancing the Association from the publication of their allegations contained in their complaint to the Governor-General, and has affirmed that the Association bears or harbours no malice towards the Applicant.

It is possible that but for the unfortunate disclosure in the press, the applicant might not have felt the need to apprehend that he has been denied, as he contends in this application, the protection of the law, and he therefore harbours perhaps an understandable feeling of being railroaded. Hence his present application. And to this I must now turn.

At the very outset of this application, I was personally presented with a dilemma in the form of a request by one of the Attorneys for the applicant that I should recuse myself from hearing this application. This request was based, I believe, on the view of the applicant's Attorney that, on the Affidavit evidence by both the applicant and the Governor-General, there seemed to be some conflict and that therefore there may be need to call the Governor-General for cross-examination in order to clarify the conflict. In the course of doing so, the attorney felt that I may be called by one side or the other.

Also the attorney urged, that in my capacity as Chief Justice and by the Constitutional provisions, the head of the judiciary, the complaints against the applicant should have been channeled through me: therefore, he argued, I should not sit on this application.

The learned Attorney-General however resisted the request on the ground that it was not properly made and could not be substantiated on any possible ground of bias or conflict of interest, either of the pecuniary or non-pecuniary kind, which would normally have precluded me from sitting on the application. He further submitted that, in any event, there was no conflict in the Affidavits that could be reconciled by cross-examination.

I ruled however, that a proper basis for me to recuse myself has not been established. In the event however, no application to call the Governor-General for cross-examination was ever made. Also, I am fortified, notwithstanding my earlier dilemma, by the assurance of the learned attorney for the applicant that neither he nor his client thinks I am hostile or biased in these proceedings.

Originally, when this application came up for hearing, the first Respondent, the Attorney-General, was the only party joined. But by Summons dated 19 February 2001, the Bar Association of Belize applied to be joined as second Respondent. The applicant resisted this application on the ground that the first Respondent, the Attorney-General, was the only proper party to be joined. But the Bar Association of Belize submitted that as one of the complainants to the Governor-General which triggered off the letter to the applicant, if the several reliefs prayed for by the applicant were granted without hearing the Association, it would cause injustice to it.

I therefore exercised my discretion under Order 17 Rule 12 of the Supreme Court Rules and ordered the joinder of the Bar Association of Belize as necessary in order that I may effectively and completely settle the issues raised before me on the applicant's application.

I would therefore at this point like to commend all the Attorneys who made submissions on this application for the able and vigorous manner in which they presented the issues involved. They helped me immensely in reaching the conclusions I was able to arrive at in this case. It is an important application which involves certain provisions of the Constitution of Belize and the relationship between these and some of the other laws of the land. At the heart of the application is the issue of the tenure of office of judges of the Supreme Court and the claim by the applicant, a judge of the Supreme Court, that in the circumstances of this case, he has been denied the protection of the law and equal treatment under the law.

Although this matter came before me in the garb of a constitutional motion, the learned attorney for the second Respondent, the Bar Association of Belize, contended that the applicant should have come by way of judicial review and not via the route of a constitutional challenge. Although there may be some merit in this argument given the nature of what the applicant seeks to impugn in this application, viz, an exercise of power albeit, conferred by the Constitution on the Governor-General; and as the learned authors of the fifth edition of the late Stanley De Smith's seminal wok Judicial Review of Administrative Action (Sweet and Maxwell, 1995) state in their preface: ". . .the effect of judicial review on the practical exercise of power has now become constant and central."

However, it may well happen that when an application for judicial review is made, it may as well entail a consideration of certain constitutional provisions, distinct and separate from a claim for redress for breaches of constitutional rights. The latter is par excellence, the subject of a Constitutional motion. In the former however, that is, judicial review, a determination may have to be made whether a legal power or discretion conferred, has been improperly exercised, thereby tainting it with illegality, irrationality or procedural impropriety.

This occasional overlap between judicial review and Constitutional challenge is inevitable in a country such as Belize with our written Constitution with its guarantee and protection of human rights. It must also be remembered that though judicial review is increasingly being resorted to now in Belize, it is a process that is still only available by an exercise in exegesis, as it were, piggy-backed on Order 53 of the English Rules of the Supreme Court (as they then were). And unlike a constitutional challenge, is only available by leave of the Court, with the onus on an applicant that he has a prima facie case.

In any event, the object of the challenge is the same, whether by way of judicial review or constitutional motion, viz, to ensure judicial oversight of the exercise of power in order that it may conform with the law, and if not, to provide relief as appropriate.

In the end, however, it really does not make any difference how the applicant chooses to approach the Court, especially in the matter of an exercise of a legal power, in this case, a constitutionally conferred one. I might also add that applicants in similar circumstances as the applicant here, have been known to bring both a judicial review and a constitutional motion to impugn decisions affecting them - see Rees and Others v Crane (1994) 43 WIR 444. The procedural divide is, I believe, not so marked in the area of public law between constitutional motion and judicial review especially when there are claims of the denial or infringement of human rights.

In any event, in the present application before me, the applicant contends that certain provisions of the Constitution, viz, sections 3(a) and 6(1) thereof have been and/or are likely to be contravened in relation to him. Hence this application pursuant to section 20 of the Constitution of Belize. So far as is material here this section provides:

"20(1). If any person alleges that any of the provisions of sections 3 to 19 inclusive of this Constitution has been, is being or is likely to be contravened in relation to him ...then, without prejudice to any other action with respect to the same matter which is lawfully available, that person ...may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction -

(1) to hear and determine any application made by any person in pursuance of subsection (1) of this section;

. . .

and may make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 19 inclusive of this Constitution."

It is pursuant to this provision that the applicant has prayed for the following reliefs from this Court:

1. A Declaration that the Applicant has been deprived and/or is likely to be of the Protection of the Law as guaranteed to him by Section 3(a) of the Belize Constitution insofar as the Governor-General has, while purporting to act in accordance with his powers under Section 98(4) of the Belize Constitution, made a decision to refer certain allegations which purport to form a basis for the Applicant's removal from office as a Justice of the Supreme Court, without having at any time prior thereto acted fairly in relation to the Applicant, nor complied in any respect with the rules of natural justice.

2. A Declaration that the Applicant has been deprived of the Protection of the Law as guaranteed to him by Section 3 (a) of the Belize Constitution insofar as the Governor-General has made a decision to refer certain unproven and untested allegations which purport to form a basis for the applicant's removal from office without his having first investigated such complaints to determine whether they form a proper and sufficient basis for referral to the Belize Advisory Council, particularly insofar as Section 98(4) of the Belize Constitution requires the Belize Advisory Council to investigate the question of removal from office of a Supreme Court Justice, as distinct from investigating the validity of allegations which may ultimately form the basis for a proper consideration by the Belize Advisory Council of the question of removal from office of a Court Justice of the Supreme Court.

3. A declaration that in the absence of an investigation or full enquiry by the Governor-General into the allegations of wrongdoings and misbehaviour made against the Applicant by members of the Bar Association of Belize, the Applicant's right to the Protection of the Law, as guaranteed to him by Section 3(a) of the Belize Constitution is likely to be infringed insofar as it is now expected that the said allegations in and of themselves will form the basis for the referral by the Governor-General to the Belize Advisory Council whereupon the Belize Advisory Council would be required to act upon those allegations in a manner not provided for by Section 98(4) of the Belize Constitution, which is that they would then be required to investigate into the validity of the allegations.

4. A Declaration that the Applicant either has been and/or is likely to be deprived of the equal protection of the law as is guaranteed to him by Section 6(1) of the Belize Constitution, insofar as, unlike as is generally the case with other public officers, where criminal allegations are set out as the basis for their removal from the employment post which they hold, such allegations are referred to the police and if necessary to a Criminal Court for adjudication thereon, whereupon only if a conviction results will dismissal ensue. The Applicant contends that as the allegations made against him by members of the Bar Association of Belize are all of a criminal nature, a similar procedure as aforesaid should have been followed prior to the question of possible removal from office having ever been contemplated by the Governor-General, and thereby seeks Declaratory Relief accordingly.

5. A Declaration that the Applicant's right to the Protection of the Law as is guaranteed to him by Section 3(a) of the Belize Constitution is likely to be infringed insofar as there is a possibility that he may be suspended from performing the functions of his office if the allegations of misbehaviour as made against him are in fact referred by the Governor-General to the Belize Advisory Council, in the manner as set out in the Affidavit evidence to be lodged in support hereof.

6. A Declaration that the Applicant's right to the Protection of the law as guaranteed to him by Section 3(a) of the Constitution of Belize has been and is being contravened in relation to him, insofar as the primary matter of alleged misbehaviour which has been referred to the Governor-General by Attorney-at-Law Ms. Lois Young Barrow, concerns allegations arising out of a case which is presently pending in the Supreme Court of Belize as between Business Machines and Solutions Ltd. and Belize Telecommunications Ltd., the outcome of which case and any legal matters arising therefrom upon which there is dispute, may later be made to form the basis of Appellate Court proceedings and is therefore 'Sub Judice', thereby making ordinarily unlawful, any comments made in whatsoever context out of Court, which may affect the outside of that case.

7. A Declaration that the Applicant's right to the protection of the law as is guaranteed to him by section 3(a) of the Constitution of Belize has been breached, insofar as his legitimate expectation to have the allegations against him referred to the Governor-General (if necessary) by the Chief Justice and to have the allegations made against him investigated and/or prosecuted by the appropriate investigating and/or prosecuting authorities prior to a decision being made by anyone, including the Governor-General, that the question of the Applicant's removal ought to be referred to the Belize Advisory Council, so as to allow for them to decide upon same, has not been the procedure followed in dealing with the allegations made against the Applicant AND THAT his legitimate expectation to also have the allegations against him be enquired into under the provisions of the PREVENTION OF CORRUPTION IN PUBLIC LIFE ACT (1994) has not been met.

8. A Declaration that the Applicant has been deprived of the Protection of the Law guaranteed to him by Section 3(a) of the Belize Constitution inasmuch as highly prejudicial and irrelevant matter was included in the complaint sent to the Governor-General by the Bar Association of Belize, which had no relation to the Applicant's performance of his functions as a Justice of the Supreme Court and did not amount to 'misbehaviour' for the purpose of Section 98(3) and (5) of the Belize Constitution. Moreover, wide publicity given to such extraneous matter in the news media and otherwise has seriously prejudiced the Applicant's right to receive a fair hearing.

9. Damages for breaches of the Applicant's constitutional rights under Sections 3(a) and 6(1) respectively, of the Belize Constitution.

10. An Order that in view of the irreparable prejudice that would be caused to the Applicant if the Governor-General were to be allowed at any time hereafter to consider the matter of the allegations raised against the Applicant, that any and all proceedings in pursuance of Section 98 of the Constitution of Belize with respect to those allegations, be quashed.

11. A Stay of any and all Proceedings regarding suspension of the Applicant from performing the functions of this office as a Justice of the Supreme Court of Belize until the conclusion of this Action.

12. A Stay of any and all Proceedings related to the Belize Advisory Council considering whether or not the Applicant should be recommended for removal from office for misbehavior or enquiring into that question of removal of the Applicant from office for misbehavior.

13. A Stay of any action by or on behalf of the Governor-General to refer the allegations of misbehaviour brought against the Applicant by members of the Bar Association of Belize, to the Belize Advisory Council.

14. Costs.

15. Such further or other relief as may be just.

This motion by the applicant is supported by three Affidavits by him sworn to on 13th, 16th and 19th February 2001 respectively.

The action which has set in train this application is a letter dated 2nd February 2001, from the Governor-General and addressed to the applicant. This letter is, in my view, central to this application and is annexed to the Affidavit of the 13th February by the applicant; and I reproduce it here in its entirety.

"GEN/38/01/01 (50)

Hon Mr Justice Meerabux
Supreme Court
Belize City

2nd February, 2001

Dear Sir,

Please find enclosed three documents, viz:

1. A letter dated 16th October, 2000 from Attorney-at-Law Lois Young Barrow.

2. A letter dated 30th October, 2000 also from Lois Young Barrow.

3. A correspondence from the Bar Association of Belize, dated 30th January 2001, signed by the President, Vice-President, Secretary, and two Committee Members of the said Bar Association.

These letters and their contents are, in effect, complaints again your continued tenure as a judge of the Supreme Court of Belize, on the grounds that (and I quote from the Bar Association letter)

(1) (You have) used (your) office corruptly for private gain and allowed (your) integrity to be called into question.

(2) (you have) demeaned (your) office and engaged in a conduct that is immoral and reprehensible so as to render (you) unfit to hold the office of a judge of the Supreme Court of Belize." (End of quote).

It is my opinion that these complaints should be referred to the Belize Advisory Council under Article 98, subsection 5 of the Belize Constitution.

You will further note that the same Article (subsection 6) empowers the Governor-General to "Suspend the justice from performing the functions of his office" but only if the question "has been referred to the Belize Advisory Council".

Yours truly,

C N Young
Hon Sir Colville Young GCMG
Governor-General"

Also forwarded with this letter were three documents, which the Governor-General described along with their contents as ". . . in effect, complaints against your continued tenure as a judge of the Supreme Court of Belize."

From the motion of the applicant and the arguments and submissions by his learned Attorney, the following issues arise, in my view, for determination,

The first issue can be stated thus: the applicant contends that he has been deprived and/or is likely to be of the protection of the law as guaranteed to him by section 3(a) of the Belize Constitution in so far as the Governor-General while purporting to act in accordance with his powers under section 98(4) of the Constitution, made a decision to refer certain allegations against him without previously acting fairly in relation to him, and that the Governor-General did not, in any respect, comply with the rules of natural justice. In short, the Governor-General breached the rules of natural justice.

Does the Governor-General's letter of 2nd February 2001 to the applicant establish a breach of natural Justice?

The second issue is that the applicant claims that the Governor-General had made a decision to refer certain unproven allegations to the Belize Advisory Council without having first investigated the validity of these allegations to determine whether they form a proper and sufficient basis for the purposes of sections 98(4) of the Constitution. Is there a duty on the Governor-General to investigate the validity of allegations to determine whether they form a proper and sufficient basis for purposes of section 98(4)?

The third issue which is related to the second, is that in the absence of any investigation or full inquiry by the Governor-General into the allegations of wrongdoings and misbehaviour made against the applicant, he claims that his right to the protection of the law as guaranteed by section 3(a) of the Constitution is likely to be infringed, if these allegations were to form the basis of a referral by the Governor-General to the Belize Advisory Council which will then be required to act on those allegations in a manner not provided for by section 98(4) of the Constitution, especially when the Belize Advisory Council, the applicant further claims, has no procedure or rules governing it in respect of such complaints.

There are also two other issues that are closely related and for convenience could be called the fourth : in this the applicant claims that he has been or is likely to be deprived of the equal protection of the law as is guaranteed him by section 6(1) of the Constitution in that as a public officer, like in the case of other public officers, where there are criminal allegations made against them, such allegations are first referred to the police and the prosecutorial authorities, and if convicted then only will dismissal ensue, and that in his case, the allegations against him should have been referred if necessary by the Chief Justice to the Governor-General even before a decision by the Governor-General to refer the question of his removal to the Belize Advisory Council and that his legitimate expectation as a public officer to have the allegations against him enquired into first under the provisions of the Prevention of Corruption in Public Life Act 1994, has not been met.

The fifth issue relates to the question of sub judice. The applicant claims that the primary matter of alleged misbehaviour against him arises out of a case which is still pending in the Supreme Court between Business Machines and Solutions Ltd. v Belize Telecommunications Ltd. in Action No. 435 of 2000, and that it would be ordinarily unlawful to comment on that alleged misbehaviour whatsoever as this may affect the outcome of the case.

The sixth issue is that the applicant claims that highly prejudicial and irrelevant matters have been included in the complaint sent to the Governor-General which have no relationship to his performance as a judge and in fact do not amount to "misbehaviour" within the context of sections 98(3) and (5) of the Constitution.

I shall now take each of these issues in turn.

1. DID THE GOVERNOR-GENERAL'S LETTER OF 2ND FEBRUARY TO THE APPLICANT DEMONSTRATE THAT THE GOVERNOR-GENERAL HAD MADE A DETERMINATION TO REFER THE COMPLAINTS TO THE BELIZE ADVISORY COUNCIL WITHOUT FIRST GIVING THE APPLICANT AN OPPORTUNITY TO COMMENT AND THEREBY DENYING HIM NATURAL JUSTICE?

From the evidence in this case, the following chronology is discernible as leading up to the present application:

(1) On 25th February 1999 the Bar Association of Belize passed a resolution against the continued tenure of the applicant as a judge of Supreme Court.

(2) On 16th October 2000, Lois Young-Barrow S.C. wrote to the Governor-General complaining against the applicant assigning an interlocutory ex parte application for an injunction to himself after having been seen in his chambers by the beneficial owner of one of the parties to an action. This letter also referred to the resolution of the Bar Association of Belize mentioned above, and also to two other complaints which had been made by practicing attorneys, presumably also sent to the Governor-General.

(3) On 30th October 2000, Lois Young-Barrow, again, wrote to the Governor-General expanding on her complainant contained in her letter of 16th October, mentioned above, and referring to a third complaint against the applicant contained in an Affidavit of complaint dated 2nd December 1999, provided to the law firm of Shoman, Usher and Chebat.

(4) On January 30th 2001, the Bar Committee of the Bar Association of Belize wrote to the Governor-General "charging" the applicant with misbehaviour in the office of a judge of the Supreme Court and relying on assertions contained in four accompanying Affidavits. The Association's letter invited the Governor-General to consider the matters alleged in the said Affidavits and prayed him to proceed upon the complaint as provided for in section 98(4) of the Constitution.

(5) On 2nd February 2001, the Governor-General wrote to the applicant forwarding all the letters mentioned above (the text of this letter has been produced supra) and all the affidavits.

(6) On 5th February 2001, Oscar A. Sabido S.C. attorney for the applicant wrote to the Governor-General. I think it is pertinent to reproduce the text of this letter which I shall at the appropriate stage.

(g) On 7th February 2001, the applicant filed the present Constitutional Motion seeking the several declarations prayed for therein and other reliefs.

Now, I turn to the applicant's claim that the Governor-General while purporting to act in accordance with his powers under section 98(4) of the Constitution, made a decision to refer certain allegations which purport to form a basis for his removal from office as a justice of the Supreme Court, without at any time prior thereto acting fairly in relation to him and did not in any respect comply with the rules of natural justice.

It is helpful, I believe, in this regard, to set out the provisions of the Constitution which are materially relevant to a determination of this issue. These are contained in Section 98 as follows:

"(3) A justice of the Supreme Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.

(4) A justice of the Supreme Court shall be removed from office by the Governor-General if the question of the removal of that justice from office has been referred to the Belize Advisory Council in accordance with the next following subsection and the Belize Advisory Council has advised the Governor-General that that justice ought to be removed from office for inability as aforesaid or for misbehaviour.

(5) If the Governor-General considers that the question of removing a justice of the Supreme Court from office for inability as aforesaid or for misbehaviour ought to be investigated, then -

(7) the Governor-General shall refer the matter to the Belize Advisory Council which shall sit as a tribunal in the manner provided in Section 54 of this Constitution; and

(8) the Belize Advisory Council shall enquire into the matter and report on the facts thereof to the Governor-General and advise the Governor-General whether that justice should be removed under this section.

(6) If the question of removing a justice of the Supreme Court from office has been referred to the Belize Advisory Council under the preceding subsection, the Governor-General may suspend the justice from performing the functions of his office, and any such suspension may at any time be revoked by the Governor-General and shall in any case cease to have effect if the Belize Advisory Council advises the Governor-General that the justice should not be removed from office.

(7) Except as otherwise provided in this section, the functions of the Governor-General under this section shall be exercised by him in his own deliberate judgment."

From these, it is evident that there are several stages involved in a determination of the question of the removal of a judge of the Supreme Court in Belize.

It is common ground between the parties that there are three stages which may be stated as follows:

First, the Governor-General considers that the question of removal of the judge ought to be investigated;

Secondly, he then refers the matter to the Belize Advisory Council which shall then sit as a tribunal and

Thirdly, the Belize Advisory Council then enquires into the matter and reports on the facts of the matter to the Governor-General.

But there is, in my view, on a closer analysis of the relevant Constitutional provisions, an inarticulate but critical antecedent stage to all the other stages. This, I will call the trigger stage, which is not evident on a literal reading of the Constitution's provisions.

Subsection (5) simply states that if the Governor-General considers that the question of removal, whether for inability or misbehaviour, ought to be investigated, then the next stages are put in train.

The threshold issue is: how does the Governor-General come to consider the question in the first place? Is it by some divine inspiration or instruction? Or by some majestic or gubernatorial whimsy such as I pressed on both sides during the argument of this application, that the Governor-General can just get up, with all due respect, after a fine lunch one Sunday afternoon in Belize House in Belmopan and say that the question of the removal of a judge of the Supreme Court ought to be investigated?

I am glad to say that both sides responded in the negative to the latter although I am not sure they or anyone else, would want to be drawn on the divine aspects.

What is at least agreed is that something or somebody must set off the trigger, as it were, to bring the Governor-General to consider that the question of removal ought to be investigated. This, as I said earlier, is not clear on the face of the Constitutional provisions. It may be some representation, some complaint or whatever; arriving at the point of consideration is not in a void. In short there must be some antecedent, a trigger, if you will.

Unlike the situation in some other Caribbean jurisdictions, for example, Trinidad and Tobago and Guyana, some authority or the other has to make representation to the President that the question of the removal of a judge ought to be investigated; in the case of the Chief Justice in Trinidad and Tobago, it is the Prime Minister who makes the representation to the President and in the case of a judge other than the Chief Justice, it is the Judicial and Legal Services Commission which makes the representation on the question of removal to the President. The provisions are similar under the Constitution of Guyana, only that it has a Chancellor and Chief Justice, and the Prime Minister makes the representation in the case of each, and the Judicial Service Commission in the case of any other judge.

Notwithstanding the fact that these two countries have a republican form of government, there is a close similarity on their provisions relating to removal of judges, with this material difference with the provisions in the Constitution of Belize: as I have mentioned earlier, some authority or the other has to make a representation to the President (which could reasonably be read in the Belizean context as the Governor-General) that the question of the removal of a judge ought to be investigated. In Belize, it is the Governor-General who considers that the question of the removal of a judge ought to be looked into.

The provisions in the Constitutions of these two countries have given rise to the need for their interpretation in two important decisions of their highest courts in situations bearing some resemblance and import to the application before me.

The first is the Guyanese case of Barnwell v Attorney-General and Another (1993) 49 WIR 88, and the Trinidadian case of Rees and Others v Crane (1994) 43 WIR 444; (1994) 1 All ER 833. More on these cases later.

In Belize, however, it is the Governor-General who is charged with the constitutional duty to consider the question of the removal of a judge of the Supreme Court whether for inability however so arising or misbehaviour before the referral of the question to the Belize Advisory Council. How the Governor-General arrives at the point of considering that the question of removing a judge ought to be investigated is not stated or specified. After consideration however, if he so decides, he then refers the matter to the Belize Advisory Council. The latter body, as a tribunal, will enquire into the facts of the matter and advise the Governor-General (sections 98(4) and (5) of the Belizean Constitution).

It is not clear whether the Governor-General is bound to follow the advice of the Belize Advisory Council in this regard; but the Belize Advisory Council may well advise that the judge should not be removed from office (subsection (6).

However in the exercise of his functions under the Constitution in the case of the question of the removal of a judge the Constitution stipulates that the Governor-General shall do so in his own deliberate judgment. But this, on the authorities, does not dispense with adhering to the principles of natural justice and fair play.

Where representation to the Governor-General that the question of the removal from office ought to be investigated is necessary, the Constitution says so and specifies who shall make the representation. Thus, for example, in section 105(8), "if the Prime Minister represents to the Governor-General that the question of the removal of a member of the Public Service Commission ought to be investigated, the Governor-General shall refer the matter to the Belize Advisory Council, which shall sit as a tribunal and enquire into the matter and report on the facts to the Governor-General. The same requirement for representation to the Governor-General that the question of removal from office ought to be investigated is to be found in sections 108(8) and 109(7) regarding the Director of Public Prosecutions and Auditor-General respectively. In each case, it is the Prime Minister who makes the representation to the Governor General.

There is, in the case of a judge of the Supreme Court, no requirement for representation to the Governor-General. This may well be for considerations of judicial independence. But by the constitutional provisions on judges, the question of removal is only referred if the Governor-General so considers. So long as his consideration and decision to refer to the Belize Advisory Council are attended or marked by procedural fairness in relation to the judge concerned, the referral would be difficult to assail.

In this application, the applicant complains that he has been denied natural justice as evinced by the Governor-General's letter of 2nd February 2001, from which he avers in paragraph 20 of his Affidavit of 13th February 2001 "I clearly understood from the Governor-General's letter that he had not only decided to refer the complaints to the Belize Advisory Council but also to suspend me from performing the functions of my office as a Justice of the Supreme Court this notwithstanding that to the best of my knowledge, information and belief, the Governor-General has conducted no enquiry whatsoever in an effort to determine whether or not the allegations made against me are even prima facie valid."

At the heart of this complaint is that there has been a denial of natural justice by the breach of procedural fairness, the Audi alteram partem rule: that there has been a determination or decision by the Governor-General to refer the complaints against him to the Belize Advisory Council and to suspend him even before his own side of the story was heard or told.

It has been rightly said that "That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca's Medea, enshrined in the Scriptures - ("Doth our law judge any man, before it hear him and knoweth what he doeth? (John, VII, 51), mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Book to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteen-century judge to the events in the Garden of Eden" - see De Smith, Woolf and Jowell, Judicial Review of Administration Action (5th ed. 1995) at pp. 378-379.

Natural justice is a principle therefore that is as old as the hills, if not before. It is reflected in all the religions of the Abrahimic tradition that even at the moment of the descent of humankind from the Divine presence, it was not a decision reached in the absence of natural justice: ". . .even God himself did not pass sentence upon Adam, before he was called upon to make his defence. 'Adam', says God; where at thou? Hast thou not eaten of the tree, whereof I commanded thee thou shouldst not eat?' - R v Chancellor of the University of Cambridge (1723) 1 Str. 557 at 567 per Forfescue J.

In both Rees v Crane, and the Barnwell cases, the decisions to make representation to the President regarding the question of the removal of the judges in those cases and to have the relevant Commissions sit to enquire into their removal were quashed because it was found that they had not been given an opportunity to be heard before the decisions were arrived at.

In the Rees case, Lord Slynn of Hadley delivering the opinion of the Board of the Judicial Committee of the Privy Council, quoted with approval the following from Sir William Wade in his Administrative Law (6th Edn.) at pages 496 and 497 :

"As the authorities will show, the courts took their stand several centuries ago on the broad principle that bodies entrusted with legal power could not validly exercise it without first hearing the person who was going to suffer. This principle was applied very widely to administrative as well as to judicial acts, and to the acts of individual Ministers and officials as well as to the acts of collective bodies, such as justices and committees. The hypothesis on which the courts built up their jurisdiction was that the duty to give every victim a fair hearing was just as much a canon of good administration as of good legal procedure. Even where an order or determination is unchallengeable as regards its substance, the Courts can at least control the preliminary procedure so as to require fair consideration of both sides of the case. Nothing is more likely to conduce to good administration."

Again at page 570, the learned author continues:

"Natural justice is concerned with the exercise of power, that is to say, with acts or orders which produce legal results and in some way alter someone's legal position to his disadvantage. But preliminary steps, which in themselves may not involve immediate legal consequences, may lead to acts or orders which do so. In this case the protection of fair procedure may be needed throughout, and the successive steps must be considered not only separately but also as a whole. The question must always be whether, looking at the statutory procedure as a whole, each separate step is fair to the person affected" (emphasis added).

I respectfully adopt this exposition of the law. Looking therefore at the relevant constitutional provisions on the removal of a judge of the Supreme Court (the statutory procedure if you will), I hold that a judge who is the subject of those provisions, as the applicant in the instant case, is entitled, ex debito justitiae, to he heard at every stage of the procedure. This is so, even though the relevant Constitutional provisions are silent on the right of the affected judge to be heard. Justice requires it and if the independence of the judiciary means anything, this must be so. For without the right to be heard at each stage of the procedure, a judge would be condemned unheard. This will be a terrible day for the independence of the judiciary, the due administration of justice, and the rights and freedoms of Belizeans the protection and enforcement of which are entrusted to judges of the Supreme Court. If a judge of the Supreme Court does not have the right to procedural fairness, natural justice, fundamental justice, fair play in action, rational justice, substantial justice, or call it by whatever name or simply justice without any epithet, in a critical area as his tenure of office or the question of his removal therefrom, then it simply boggles the imagination to fathom how he can truly, with independence and integrity, dispense justice let alone protect the rights and freedoms of all Belizeans.

Surely, the framers of the Constitution could not have intended this. I am therefore prepared to hold and I do hold that notwithstanding the silence of subsections (3), (4) and (5) of section 98 of the Constitution, a judge of the Supreme Court of Belize, such as the applicant, is entitled to natural justice, in particular the principle of audi alteram partem, procedural fairness, in relation to the question of his removal from office whether it be inability to perform the functions of his office for whatever cause or misbehaviour. The applicant therefore has a right to be heard before a decision concerning the question of his removal is arrived at. This right I also hold is applicable to all the stages of the process, viz, at the consideration stage by the Governor-General of the question of his removal from office whether for inability or misbehaviour ought to be investigated, at the stage where if the matter is referred to the Belize Advisory Council, (the referral stage).

What cannot be decided with certainty however, is whether the affected judge is entitled to be heard at the trigger stage. That is to say, should the complainants, in this case, attorney Lois Young-Barrow and the Bar Association of Belize, have first given an opportunity to the applicant to be heard on their complaints? This I surmise would be stretching somewhat the requirements of procedural fairness; and these are only binding on the decision-maker, not the person or body that brings the question to the attention of the decision-maker for consideration.

This brings me to the issue of the consideration by the Governor-General of the question of the removal of a judge: What must the Governor-General consider? How does he consider and what is the consideration to determine? As stated in subsection (5) of section 98 of the Constitution: "If the Governor-General considers that the question of removing a justice of the Supreme Court from office . . ." (emphasis added)

The section speaks of "considers" and not "decides". I wonder if it would have made any difference, for as Megaw J. said in the Hanks v Minister of Housing and Local Government (1963) 7 All ER 47 at page 55:

"A 'consideration' I apprehend, is something which one takes into account as a factor in arriving at a decision. I am prepared to assume . . . that, if it can be shown that an authority exercising a power has taken into account as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power, then the exercise of the power, normally at least, is bad. Similarly, if the authority fails to take into account as a relevant factor something which is relevant, and which is or ought to be known to it, and which it ought to have taken into account, the exercise of the power is normally bad. I say 'normally' because I can conceive that there may be cases where the factor wrongly taken into account, or omitted, is insignificant, or where the wrong taking-into-account, or omission actually operated in favour of the person who later claims to be aggrieved by the decision."

The gravamen of the applicant's complaint on this score is not that the Governor-General took into account some irrelevant consideration or failed to take into account some relevant consideration but it is simply that the Governor-General had decided beforehand that the question of his removal ought to be looked into by the Belize Advisory Council.

But an analysis of subsection (5) of section 98 of the Constitution to my mind, shows that it being in the nature of an impeachment proceeding, once the Governor-General considers that the question of the removal of a judge ought to be investigated, he the Governor-General is not merely a conduit: he has to be satisfied that the matter is sufficiently serious to warrant referral to the Belize Advisory Council. Both in deciding what material is necessary for such referral and in deciding whether to make such a referral at all, the Governor-General must act fairly and in conformity with the rules of natural justice.

It is not in my view, every fanciful complaint or material that the Governor-General must refer to the Belize Advisory Council - he has to look at the material or complaint to see if it is sufficiently serious to warrant referral. Having done so but before referral he ought, ex debito justitiae in keeping with natural justice, to hear what, if anything the particular judge may have to say, on the material or complaint: he must inform the judge of the complaint or material. Failure to observe this basic, decent and fair procedure would, in my view and on the authorities, vitiate any referral by the Governor-General to the Belize Advisory Council. This failure would infect every subsequent step thereafter including the inquiry as a tribunal by the Belize Advisory Council into the matter, down to and including any suspension of the judge from performing the functions of his office.

This is so because, the preliminary steps to refer a matter is an integral and necessary part of a process which may terminate in action adverse to the interests of a person who is entitled to be heard - see Wiseman and Another v Borneman and others (1969) 3 All ER 275, particularly Lord Wilberforce at page 285.

I would therefore hold that under subsection (5) of section 98, the consideration by the Governor-General of the question of the removal of a judge is stamped with the requirements of natural justice. This perforce, must be so in view of the stakes involved not only for the judge concerned, but for the higher interest of the public itself and the legal and constitutional stipulations of the independence of the judiciary. A decision by the Governor-General to refer the question may well ensue in the suspension of the judge - subsection (6) of section 98.

I therefore further hold that, notwithstanding the provisions of subsection (7) of section 98, that the functions of the Governor-General under the section itself shall be exercised by him in his own deliberate judgment, the consideration by the Governor-General under subsection (5) that may lead to a referral, is and must be attended by the requirements of natural justice.

I therefore now turn to the crucial question in this application: was there a departure from or a breach of the rules of natural justice in this case as evinced in the letter of the Governor-General of 2nd February 2001 to the applicant, as is contended for by him?

It is common ground between the parties that there has, as yet, been no referral to the Belize Advisory Council and no suspension of the applicant - see paragraph 14 of the Governor-General's Affidavit of 14th February 2001. I set out here the Affidavit of the Governor-General:

"I, COLVILLE N. YOUNG, Governor-General, of Belize House, Belmopan City, MAKE OATH AND SAY as follows:-

1. I am the Governor-General of Belize and have served in this capacity since November 17th, 1993.

2. As Governor-General of Belize my duties, responsibilities and functions are set out in the Belize Constitution.

3. One of my constitutional duties is, where I consider that the question of removing a Justice of the Supreme Court from office for inability or for misbehaviour ought to be investigated, to refer the matter to the Belize Advisory Council that is then constitutionally required to enquire into the matter, report on the facts and advise me whether the Justice of the Supreme Court ought to be removed.

4. By letter dated October 16th 2000, Lois Young-Barrow, Senior Counsel, wrote to me complaining about the behaviour of the Applicant in a particular case before the Supreme Court and requesting me to invoke my powers under the Constitution to refer the question of whether the Applicant should be removed from office to the Belize Advisory Council. A copy of the said letter is exhibited to the affidavit of the Applicant as "G.M. 2".

5. By letter dated October 30th 2000, Lois Young-Barrow again wrote to me making further complaints against the Applicant and drawing my attention to certain decided legal cases on the issue of the removal of a judge from office. A copy of the said letter is exhibited to affidavit of Applicant as "G.M. 2".

6. I did not bring the complaints of Lois Young-Barrow to the attention of the Applicant and neither did I refer these complaints to the Belize Advisory Council.

7. By letter dated January 30th 2001, the executive officers of the Bar Association of Belize wrote to me charging the Applicant with misbehaviour in the office of a Justice of the Supreme Court basing their charge on certain allegations contained in five affidavits accompanying their letter and inviting me to proceed upon the complaint in accordance with the Belize Constitution. A copy of the said letter is attached to the affidavit of the Applicant as "G.M. 2".

8. I reviewed the Bar Association's complaint along with the accompanying affidavits that included affidavits from a police officer who formerly served as driver for the Applicant and from a Senior Counsel of the Bar Association of Belize.

9. On the 1st day of February, 2001 I received a courtesy call from the Chief Justice of Belize and I took the opportunity to inform him that I had received a complaint from the Bar Association of Belize against one of the Justices of the Supreme Court, the Applicant herein.

10. Based on the gravity and seriousness of the allegations contained in the Bar Association's complaint and the accompanying affidavits, on the 2nd day of February 2001, I wrote to the Applicant attaching copies of the letters of complaint from Lois Young-Barrow and the Bar Association as aforesaid and informed the Applicant that in my opinion the complaints should be referred to the Belize Advisory Counsel. (sic)

11. I wrote to the Applicant on the 2nd day of February 2001, as aforesaid, in order to bring all the complaints I had received against him to his attention and in order to give him the opportunity to respond to the complaints.

12. By letter dated February 5th 2001, Oscar Sabido, Senior Counsel for the Applicant, wrote to me setting out what he styled as "skeletal arguments" on behalf of the Applicant, the thrust of which was that I had no jurisdiction to deal with the complaint and should remit it back to the Bar Association. Mr. Sabido requested fourteen days in order to make a submission on behalf of the Applicant before I took any further step in the matter.

13. By letter dated February 8th 2001, Kirk Anderson, also counsel for the Applicant, wrote to me advising me that he had filed a constitutional motion challenging the validity of my actions in respect of the Applicant and requesting that no further action be taken in the matter until the determination of the constitutional motion.

14. Since receiving the letter dated February 5th 2001, from Oscar Sabido, as aforesaid, requesting fourteen days to make a full submission on behalf of the Applicant, I have not taken any further step in the matter and I have not referred the matter to the Belize Advisory Council.

15. To date I have not received any further submissions, written or otherwise, from Counsel for the Applicant.

C. N. Young
____________________
COLVILLE N. YOUNG"

On the facts of this case therefore, there is no evidence from which I can find that the Governor-General has decided to refer the question of the removal of the applicant to the Belize Advisory Council. Admittedly, in his letter to the applicant the Governor-General states:

"It is my opinion that these complaints should be referred to the Belize Advisory Council under Article 98, subsection 5 of the Belize Constitution."

But this, in my view, is different from saying that he the Governor-General has decided to refer the complaints to the Belize Advisory Council. The evidence in this matter is that since that letter, there has not, in fact, been any referral by the Governor-General to the Belize Advisory Council nor any action by him in relation to the applicant.

This, with respect, in my view, is the material and qualitative difference between this instant application and the line of cases of the likes of Rees v Crane and Barnwell (supra). In this line of cases, the ratio for their decisions is that the relevant authorities concerned had taken decisions that were in fact detrimental to the applicant, without the opportunity first being offered them to be heard or to make representation.

This was so in the case of Barnwell (1993) (supra), where the Judicial Services Commission had made a representation to the President of Guyana that the question of removing the applicant from office ought to be investigated, without having afforded him an opportunity to appear before it or to comment in any way. This was in addition to the suspension of the applicant a few days later.

In Rees v Crane (1994), the applicant had been prevented from sitting in court by the Chief Justice and the Judicial and Legal Services Commission and the latter had represented to the President of Trinidad and Tobago that the question of removing the applicant from office as a judge ought to be investigated. All this was done without giving the applicant an opportunity to be heard.

In this application before me the evidence is that there has been no referral, no suspension nor any other action in relation to the applicant. To my mind therefore, the contention by the applicant that even before the Governor-General wrote him on 2nd February 2001, he the Governor-General had decided that the matter of his removal should be referred to the Belize Advisory Council and to suspend him is a preternatural rationalisation not supported by the evidence in this case.

The applicant for example says in his own Affidavit of 13 February 2001 at paragraph 18, that it was at about 3:30 p.m. on Friday 2nd February 2001 that he received a letter from the Governor-General forwarding certain complaints against him and he avers in paragraph 19 that that was the first time he had seen the complaints against him. But no where in any of the three Affidavits filed by the applicant in this matter, does he say that on the receipt of the Governor-General's letter with its attachments (the complaints) he wrote to the Governor-General about these complaints or that in fact his attorney had on 5th February, 2001 (three days after the receipt of the Governor-General's letter), written to the Governor-General in response on his behalf.

This letter from the Applicant's own attorney in response to the Governor-General's letter forwarding the complaints is instructive in this case, particularly so on the issue of whether the Governor-General had decided to refer the question of the applicant's removal to the Belize Advisory Council prior to sending the letter and whether the applicant was denied the opportunity of being heard on the complaints, as he contends.

It is worthwhile to reproduce this letter, and it reads:

"February 5, 2001

Dear Your Excellency,

Ref. Justice George Meerabux

I am instructed by the Honourable George Meerabux to acknowledge receipt of your letter dated February 2nd, 2001, forwarding certain complaints made to you by Attorney-at-Law Lois Young Barrow and the President of the Bar Association of Belize. While we have had insufficient time to prepare a full response and will be asking your Excellency to grant us additional time, certain points can be immediately made.

We are astounded by the irregular and unconstitutional procedure adopted both by Attorney Lois Young Barrow and the Bar Association in referring these "complaints" to your Excellency and asking your Excellency to invoke your powers under Section 98 of the Constitution. This amounts to gross interference in the judicial process and strikes at the very root of the independence of the judiciary guaranteed by the Constitution.

We note that the complaint of Lois Young Barrow in her letter of October 16th and October 30th relates to an ex-parte Injunction granted by Judge Meerabux in interlocutory proceedings. The substantive hearing of the same matter is still before the Chief Justice who is already seised of the matter. It is likely that an appeal from the decision will be made to the Court of Appeal which will have the opportunity to consider the legality or otherwise of Justice Meerabux's granting of the ex-parte Injunction.

Attorney Lois Young Barrow will have full opportunity to ventilate her grievances against Justice Meerabux before the court of Appeal and if necessary before the Privy Council.

The fact of the matter is that the case out of which Attorney Lois Young Barrow's complaint arose is still before the Courts and any action by your Excellency or by the Advisory Council at this stage would be grave interference in pending judicial proceedings amounting to a criminal contempt of Court. It is obvious that neither Attorney Lois Young Barrow nor the Bar Association have realized the serious implication of the course of action which they have asked your Excellency to take in this case.

As regards the bundle of documents sent to you by the Bar Association a serious irregularity has been committed by a body which professes to uphold the rule of law and the Constitution. The letter signed by the President of the Bar and the members of the Bar Committee purports to "charge" Justice Meerabux with misbehaviour and breaching the code of conduct. The Bar Association is a creature of statute and its powers and objects are set out in Section 40 of the Legal Profession Act. No where in this Section or anywhere else is it stated that the Bar Association can act as a disciplinary body for Judges of the Supreme Court or sit in judgment over the conduct of a Judge.

For the Bar Association to assume jurisdiction to charge a Supreme Court Judge with misbehaviour is irregular, outrageous and a complete nullity. It follows that as the Bar Association acted ultra vires in referring these complaints to your Excellency, your Excellency has no jurisdiction to deal with these complaints and must remit the same back to the Bar Association.

We should also bring to your attention that the matters raised in the correspondence raise complex legal and constitutional issues regarding the interpretation of the constitution and would need a determination from the Supreme Court. For example it will have to be determined whether the word "misbehaviour" referred to in sub-section 3 of Section 98 of the Constitution is restricted to matters relating to the Judge's behaviour in his office or whether it could also include acts of moral turpitude in his private life or criminal offences. More importantly it is our view that Section 98 sub-sections (3) (4) and (5) can be invoked only if there is proven misbehaviour by a Judge of the Supreme Court. These sections make no reference to "complaints" or allegations of misbehaviour.

We note from your letter that it is your opinion that these "complaints" should be referred to the Belize Advisory Council. We submit that you have no jurisdiction to refer mere complaints to the Advisory Council because Section 98 does not speak of "complaints".

What can be referred to the Belize Advisory Council is the question of "removal" and that question can only arise if there is already on record proven misbehaviour on the part of a Judge by a competent body having jurisdiction in the matter. We therefore strongly advise you that your reference of the mere complaints to the Belize Advisory Council would be irregular and unconstitutional. There are no rules made by the Advisory Council as to how to deal with a matter of this nature.

We would also submit that the Advisory Council is not the appropriate forum to deal with complaints of this nature which mainly refer to breach of the code of conduct contained in Section 121 of the Constitution. The appropriate body to deal with such complaints is the Integrity Commission established under the Prevention of Corruption in Public Life. Part IV of this Act deals with breaches of code of conduct and sets out the procedure for hearing complaints. We draw attention to Section 22 of this Act which states that any allegation that a person to whom this part applies (and it does apply to Judges of the Supreme Court who are public officers by virtue of Section 131 (3) of the Constitution) has committed a breach of the provisions of this part shall in the first instance be made to the Integrity Commission before it is other wise published. The Bar Association compounded the irregularity firstly by "charging" a Judge of the Supreme Court with breaches of the code of conduct without jurisdiction and then referring it to the Governor General instead of the Integrity Commission.

We should also mention that we shortly intend to move the Supreme Court for an authoritative interpretation of the provisions of the Constitution set out above and we would ask your Excellency to refrain from taking any action until the Supreme Court has determined the constitutional issues raised herein.

The above are our skeletal arguments and we would crave your Excellency's indulgence to grant us fourteen (14) days to make a full submission on behalf of our client before your Excellency takes any further action in the matter.

In view of the serious implications of this matter and the possibility that substantial damages may be awarded against the Government resulting from any course of action detrimental to our client which your Excellency may take in this regard we are copying this letter to the Hon. Prime Minister and Minister of Finance and the Hon. Minister of Budget Planning, Investment and Trade.

Yours Respectfully,

O A Sabido

OSCAR A. SABIDO
Attorney for Justice George Meerabux

c.c. The Hon. Said Musa
Prime Minister and Minister of Finance
Prime Minister's Office
Belmopan City
Cayo District
BELIZE

c.c. Hon. Ralph Fonseca
Minister of Budget Management,
Investment and Trade
Belmopan City
Cayo District
BELIZE"

Apart from the legal arguments in this letter, which, in a way, presaged the issues canvassed in this application, it is clear that the applicant is by this letter from his attorney, among other things, asking for time to make "further" representation to the Governor-General. This certainly is not a letter complaining about any decision or action of the Governor-General. It challenges the jurisdiction of the Governor-General to refer as it calls it "mere complaints" to the Belize Advisory Council and states what is, in the author's opinion, the question that can be referred to the Belize Advisory Council on the issue of the removal of a judge and excoriates attorney Lois Young-Barrow and the Bar Association. But most significantly, nowhere in the letter is the Governor-General charged with having made a prior determination to refer the matter to the Belize Advisory Council without reference to the applicant. Instead, the letter asked for time to make a full response and craved "your Excellency's indulgence to grant us fourteen (14) days) to make a full submission on behalf of our client before your Excellency takes any further action in this matter."

It is therefore difficult not to hold on the factual matrix of this case that the applicant, contrary to his own contention, has not been denied the protection of the law or that there has not been breach of natural justice in relation to him by the Governor-General. He has nonetheless chosen to come to Court to assert his right. This he is perfectly entitled to do.

The evidence however is that the Governor-General has not, as yet, decided to refer the matter to the Belize Advisory Council, nor has any other action been taken in relation to him. The ball, as it were, is still in the applicant's court; but instead of returning it by way of further representation or full submission as promised by his attorney, he has decided to leave that metaphorical court and come to this Court. This, as I said, is his right.

The applicant however, can hardly complain about not knowing what materials may be referred, if at all, to the Belize Advisory Council, or that he was denied the opportunity of seeing them and of being heard before referral to the Belize Advisory Council. Indeed, his attorney no doubt on instructions, has commented trenchantly on some of the materials and called the reply on behalf of the applicant to the Governor-General as "skeletal arguments."

The evidence in this case is that the Governor-General has not referred anything to the Belize Advisory Council. These factual considerations, as I said earlier, take this case out of the purview of the line of cases like Rees v Crane.

To contend therefore as the applicant does, that because the Governor-General did not ask him to respond to the complaints but merely informed him "it is my opinion these complaints should be referred to the Belize Advisory Council under Article (sic) 98 subsection (5) of the Belize Constitution", that he clearly understood from the Governor-General's letter that he had decided not only to refer the complaints to the Belize Advisory Council but also to suspend his functions as a justice of the Supreme Court (paragraph 20 of Applicant's Affidavit of 13 February 2001) is manifestly to fly in the face of the evidence in this case.

In my view, on the evidence, the Governor-General's letter to the applicant was no more no less than that the question of referral to the Belize Advisory Council was being considered and that the applicant was given the opportunity to see the materials that form the basis of the consideration.

The Governor-General's letter was certainly not a "Dear John Letter" to the applicant and it did not need expressly to invite him to respond. It was on the contrary, a wake-up call. It gave him clear notice of the complaint, and a clear opportunity to respond. And respond the applicant did, through his attorney three days later, by the letter I have reproduced above.

In my view, if the applicant had focused on the materials forwarded along with the Governor-General's letter instead of focusing on the providers of the materials, he could perhaps have helped the Governor-General and convinced him that the materials had prima facie, no sufficient basis in fact and were not sufficiently serious to warrant a referral.

Be that as it may, it is difficult to hold, on the evidence in this case, that the Governor-General was guilty of procedural unfairness to the applicant. On the contrary, the letter forwarding the complaints and their annexes to the applicant speaks of the clear manifestation on the part of the Governor-General to observe the rules of natural justice in relation to the applicant. In short, to see fair play in action: the applicant should see what is being alleged against him which together with his reply, if any, may be forwarded to the Belize Advisory Council if and when the Governor-General so decides.

That the Governor-General expressed his opinion that the complaints alleged against the applicant should be referred to the Belize Advisory Council cannot be taken reasonably to mean or even imply that he had made a pre-determination that those complaints were both genuine or well-founded; otherwise why bother to write to t he applicant at all. In my view, and based on the evidence, by writing to the applicant, it was intended by the Governor-General and it can only reasonably be supposed to mean that he wanted to elicit a response from the applicant. This doubtless, in conformity with the rule of natural justice, audi alteram partem. The Governor-General's opinion did not vitiate this fulfillment: the applicant was given all the opportunity to respond before any action has been taken by the Governor-General.

In the result, I find no merit in the contention of the applicant that he was denied the protection of the law and that there was a breach of natural justice in relation to him.

Finally on this point, the headline story in one of the publications in the media as annexed to the Affidavit of 13th February 2001 of the applicant would tend to suggest that it was already decided to refer the matter concerning the applicant to the Belize Advisory Council, when in fact the story was simply reporting the filing by the Bar Association of Belize of complaints with the Governor-General against the applicant. However, I take judicial notice that the said publication is not a mouthpiece for the Governor-General, nor does it represent an official release from Belize House, Belmopan the official residence and office of the Governor-General. I had earlier in this judgment spoken of the need for media responsibility, and my hunch is that this application was launched as a direct sequel of the press coverage. But this cannot be laid at the doorstep of any of the Respondents in this application.

In this application, the applicant has therefore sought to read in the Governor-General's letter his own understanding that a decision had already been made to refer his matter to the Belize Advisory Council without first hearing from him. But as I have shown, this understanding or conclusion by the applicant is not borne out by the factual matrix of the developments so far in this case. On the contrary, the evidence is the other way: the applicant is still a judge and has certainly not been suspended. There is no evidence of any referral by the Governor-General to the Belize Advisory Council; his attorney has in response to the Governor-General's letter asked for some time to make further submissions. So at this point in time, things are still at the preliminary stage and so far the relevant authority, the Governor-General, has acted with procedural fairness to the appellant. I conclude on this point therefore that there has been no denial of the protection of the law occasioning a breach of natural justice in relation to the applicant.

I agree with the submission of the learned Attorney-General that any reasonable Governor-General reasonably directing his mind to the materials before him would have acted the way the Governor-General acted in this instance by writing as he did to the applicant.

I now turn to the next cluster of issues:

2. IS THERE A DUTY ON THE GOVERNOR-GENERAL TO INVESTIGATE THE VALIDITY OF THE ALLEGATIONS IN ORDER TO DETERMINE WHETHER THEY FORM A PROPER AND SUFFICIENT BASIS FOR THE PURPOSES OF SECTION 98(4) OF THE CONSTITUTION; AND THE EFFECT OF THE ABSENCE OF PUBLISHED RULES OF PROCEDURE OF THE BELIZE ADVISORY COUNCIL UNDER SECTION 98(5) OF THE CONSTITUTION?

These two issues were argued together for the applicant. The applicant contends that the Governor-General has made a decision to refer certain unproven allegations against him to the Belize Advisory Council without first determining their validity when he ought to have undertaken an inquiry to determine whether at least a prima facie case exists for possible removal of the applicant from office. Moreover, the applicant contends, the Belize Advisory Council ought only to consider the question of removal of the applicant from office as distinct from the question of whether or not the allegations against him are valid or not. This must be so, it is submitted by the learned attorney for the applicant, because the Belize Advisory Council Procedure Rules (1997) - Statutory Instrument No. 3 of 1997 do not deal with the matter affecting the applicant, that is the question of the removal of a judge of the Supreme Court.

Subsections (4) and (5) of the Constitution deal with the procedure for the removal of a judge of the Supreme Court. I have set out these provisions earlier in this judgment. In the main, subsection (4) provides that a judge of the Supreme Court shall be removed from office by the Governor-General if the question of his removal has been referred to the Belize Advisory Council, and this body, the Advisory Council, advises that the judge ought to be removed from office either for inability which may arise from infirmity of body or mind or from any other cause, or for misbehaviour.

It is clear from this that the Governor-General does not by himself as it were, have a carte blanche power to remove a judge. The Belize Advisory Council is interposed in the process, as a kind of some filtering or intermediating body. As such, it is the Belize Advisory Council which by subsection 5(a) and (b) sit as a tribunal of inquiry into the matter and report on the facts to the Governor-General and advise him whether the judge should be removed from office.

One thing is pellucidly clear from the Constitutional provisions and that is that the Governor-General has not got on his own, suo moto, as it were, the power to remove a judge of the Supreme Court. He must refer the question of the judge's removal to the Belize Advisory Council. This referral itself to the Belize Advisory Council must be for cause. This cause is stated by the Constitution to be only for inability to perform the functions of the office of a judge (which may arise from some sickness of body or mind or any other cause) or for misbehaviour.

The applicant in this application also contends that there is a duty on the Governor-General to investigate the validity of the allegations being leveled against him before sending them to the Belize Advisory Council. For the Governor-General not to investigate, the applicant submits, would be a failure to distinguish between investigating the question of removal from office of a judge (which he submits is the function of the Belize Advisory Council) and investigating the validity of the allegations for the purposes of section 98(4) (which he submits is or should be the duty of the Governor-General).

With all the goodwill in the world I fail to follow the logic of this contention. It sounds like a distinction without a difference. What is clear from a plain reading of the Constitutional provisions on this issue, is that there is no investigatory duty or function ascribed as such to the Governor-General in this process. His duty is to consider and, I have earlier tried to spell out what, in my view, should inform or attend this process of consideration by the Governor-General of the question of removal of a judge. At the end of the day, so long as this process of consideration is in conformity with ordinary fair play by observing procedural fairness such as letting the judge in question know what is under consideration and having the opportunity to make his own representation thereon, then the Governor-General would have lawfully discharged his function and cannot be seriously faulted if he then refers the question of removal to the Belize Advisory Council.

To say, as the applicant does, that the Governor-General himself must investigate the validity of the allegations is, with respect, to have him embark on a duty his office is ill-suited for and would probably be beyond the bounds of his constitutional responsibilities.

Of course, it is not every fanciful allegation against a judge that the Governor-General would refer to the Belize Advisory Council, but to require him to investigate their validity is to encumber his office unnecessarily. The validity, veracity or otherwise of the allegations is for the Belize Advisory Council, the body that is constitutionally charged with the inquiry into the matter and to report on the facts. This institution of the Constitution, the Belize Advisory Council, is the fact-finding and reporting body charged with the responsibility of establishing the validity or veracity or otherwise of the allegations by an enquiry into them.

However, I think there must be present some indicia of investigation by the Governor-General into allegations leveled against a judge. It may not be the full-blown battle royale of the adversarial process or one involving the forensic skills of a sleuth, but in the process of considering whether the question of the removal of a judge ought to be investigated by referral to the Belize Advisory Council, the Governor-General must surely do some probing, some investigating to establish that the allegations are not merely fanciful or hopelessly groundless. In this process, the Governor-General must, in consonance with natural justice and fair play, hear from the judge or give him an opportunity to put his own side or version of whatever the allegations may be about. This requirement would be fulfilled if the Governor-General writes to or informs the judge about the allegations. This act itself is, in my opinion, investigatory.

But in my view, this investigation by the Governor-General at the consideration stage of the question of the removal of a judge is not to establish the validity of the allegations, but I think to ensure that they are not fanciful or of the crack-pot variety or hopelessly groundless.

Sections 98(4) and (5) talk of the question of the removal of a judge of the Supreme Court. This process itself presupposes some search to establish the validity or otherwise of the allegations against the judge in question. In this search, on a referral by the Governor-General, after his consideration as I have set out above, the Belize Advisory Council sit as a tribunal to enquire into the matter. It is therefore the duty of the Belize Advisory Council and not the Governor-General to establish the validity of the allegations. The outcome of this inquiry shall be the basis of its report on the facts to the Governor-General.

The applicant contends further that in any event the Belize Advisory Council does not have rules of procedure to cover cases like his own. Therefore, his right to the protection of the law is likely to be infringed insofar as it is now expected that the allegations against him would be considered by the Belize Advisory Council and acted upon in a manner not provided for by the Constitution.

The learned attorney for the applicant submitted that because the published Rules of Procedure of the Belize Advisory Council contained in Statutory Instrument No. 3 of 1997 do not provide for when the Belize Advisory Council proceeds for the purposes of section 98 of the Constitution, grave injustice would be done to the applicant if the matter were to go forward to the Belize Advisory Council. The applicant, he contends, has a right to know the procedural format of the Belize Advisory Council in dealing with the question of the removal of a judge. This lacuna in the Belize Advisory Council's rules of procedure, the learned attorney submitted, creates an uncertainty which would amount to a denial of the protection of the law as the applicant is entitled to know what rights he would have before the Belize Advisory Council.

On the submission of the learned attorney for the applicant that in the circumstances, this Court should provide guidelines for the Belize Advisory Council, I am not sure if that is the function of this Court, but I agree with the submission of the learned Attorney General that though this Court cannot write the rules of procedure for the Belize Advisory Council, it can nonetheless insist on the protection of the law through the observance by the Belize Advisory Council of proper procedural safeguards and proceedings.

Now by section 98(5) of the Constitution where the Governor-General has considered that the question of the removal of a judge either for inability or misbehaviour ought to be investigated, he shall refer the matter to the Belize Advisory Council which shall for this purpose sit as a tribunal in the manner provided for in section 54 of the Constitution. The Belize Advisory Council then shall enquire into the matter and report on the facts to the Governor-General and advise him accordingly.

So far as is material to the issue at hand here, these are the relevant provisions of section 54 of the Constitution on the Belize Advisory Council:

"54.-(1) There shall be a Belize Advisory Council (hereinafter referred to as "the Council") which shall consist of a Chairman who shall be a person who holds, or has held, or is qualified to hold, office as a judge of a superior court of record, and not less than six other members who shall be persons of integrity and high national standing of whom at least two shall be persons who hold or have held office referred to in section 107 of this Constitution and at least one shall be a member of a recognised profession in Belize.

Provided that no public officer other than a judge of a superior court of record shall be appointed as Chairman.

(7) The functions of the Belize Advisory Council shall be -

(1) to advise the Governor-General in the exercise of his powers under section 52 of this Constitution;

(2) to perform such other tasks and duties as are conferred or imposed on it by this Constitution or any other law.

(8) In the exercise of its functions the Belize Advisory Council shall not be subject to the direction or control of any other person or authority.

(10) The Chairman and in his absence, the Senior Member, shall convene meetings of the Council as appropriate for consideration of matters which in accordance with this Constitution or any other law the Council is called upon to consider.

(11) The Chairman and in his absence, the Senior Member, shall preside at all meetings of the Council, and in the absence of both the Chairman and the Senior Member, the member of the Council elected by a majority of the members attending the meeting shall preside at that meeting:

Provided that in any case where the Council is convened to discharge its duties under sections 88, 98, 102, 105, 108 or 109 of this Constitution, or where the Council is convened to hear an appeal from an officer to whom section 106 or section 107 of the Constitution applies, the Chairman shall preside at that meeting.

(13) The Belize Advisory Council shall regulate its own procedure."

The Belize Advisory Council, it must be pointed out, does not remove a judge: its proper and constitutional role is to inquire into the matter of removal and report on the facts and advise the Governor-General.

Referral of the question of removal to the Belize Advisory Council is not in and of itself pre-ordained that a judge will be removed. This notion, if it is entertained at all is, in my view, dispelled by the provision in subsection (6) of section 98. This gives the Governor-General power to suspend a judge the question of whose removal has been referred to the Belize Advisory Council. The Governor-General may well choose not to do so, it is his discretion, and he may at any time revoke the suspension. But such suspension shall in any case, cease to have effect, if the Belize Advisory Council advises the Governor-General that the judge in question should not be removed.

The learned attorney is certainly correct when he says that the published rules of procedure of the Belize Advisory Council in Statutory Instrument No. 3 of 1997 - Belize Advisory Council (Procedure) Rules 1997 do not contain procedural rules for the Council when it deals with cases contemplated by section 98 of the Constitution. They deal instead with Appeals of Public Officers, Prerogative of Mercy - Capital Cases, Prerogative of Mercy - Non Capital Cases and some Miscellaneous matters such as proceeding in camera and the confidentiality of the Council's advise to the Governor-General. But the rules do not deal with the question the removal of a judge of the Supreme Court.

May be this evident lacuna is attributed to the possibility that such an eventuality as the question of the removal of a judge of the Supreme Court was considered a rare, if not remote one.

Whatever the reason, it cannot in my view mean that the Belize Advisory Council when it does meet for this purpose is beyond the imperatives of procedural fairness. Thus, even before the publication of the Belize Advisory Council (Procedure) Rules 1997, it has been held that the Council was bound by the rules of natural justice and must act in accordance with these rules - see the judgment of Sir George Brown C.J. in Wilfred Lauriano v The Attorney General of Belize and The Superintendent of Prisons - Action No. 346 of 1995 (unreported) and Lauriano v Attorney General and Another, 3 Belize Law Report page 77.

Therefore, the absence of special provisions notwithstanding, a person or a body charged with determining such vital issues as the rights of persons, in this case, the right to remain or not as a judge, shall be bound, in proceedings to determine those rights, by the ordinary rules of natural justice.

In Spackman v Plumstead Board of Works (1885) 10 App. Caves. 229, the Earl of Selborne L.C. stated the position thus at page 240:

"No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute, if there were anything of that sort done contrary to the essence of justice."

I would therefore hold that when the Belize Advisory Council sits for the purposes of section 98 of the Constitution, its proceedings must be informed and guided by the rules of natural justice.

I am fortified in this view also by the consideration of the fact that subsection (5) itself says that the Belize Advisory Council shall sit as a tribunal. Therefore, notwithstanding the sparse constitutional provisions as to its procedure, as a tribunal, certain requirements of elementary justice should inform and attend its proceedings when it meets to inquire into the question of the removal of a judge and to report on the facts thereof.

Such proceedings, of course, hold crucial personal significance for the judge in question - his job, reputation and all that. But additionally also, the proceedings are significant for the judiciary of Belize and the due administration of justice and the confidence of the public therein. It is therefore important that the judge in question is afforded ample opportunity to know and meet the case against him and to be able to make as full a representation as he may against such a case and to be heard by the tribunal either in person or through his advisers and or attorneys, with the opportunity to call witnesses and to cross-examine any that may appear against him.

It should be remembered that the Belize Advisory Council as a tribunal in this instance, is charged by the Constitution in paragraph (b) of subsection (5) of section 98, to "enquire into the matter and report on the facts thereof to the Governor-General . . ."

It is not for nothing, I believe, that the Chairmanship of the Belize Advisory Council itself is imbued by the Constitution, with judicial attributes - a person who holds, or has held or is qualified to hold office as a judge of a superior court of record; and when the Belize Advisory Council meet as a tribunal for the purposes of section 98, that is to enquire into and report on the facts of the question of the removal of a judge, the Chairman himself shall preside. (See proviso to subsection (11) of section 54 of the Constitution).

In the light of all these considerations, I am unable to hold that the applicant is entitled to the Declaration that he has been deprived of the protection of the law because the Governor-General has not investigated the validity of the allegations against him which may form the basis for consideration by the Belize Advisory Council of the question of removal. It is not for the Governor-General to investigate the validity of the allegations. This is a task by the provisions of the Constitution, for the Belize Advisory Council.

Also, the applicant is not entitled to a Declaration that his right to the protection of the law is likely to be infringed because the Belize Advisory Council would be required to act upon the allegations in a manner not provided for by section 98(4) of the Constitution. The Belize Advisory Council is an institution of the Constitution charged, among other things, to sit as a tribunal to enquire into the question of the removal of a judge of the Supreme Court and to report to the Governor-General on the facts. This, of necessity, would involve investigation by the Belize Advisory Council and, as I have stated, in this process the Belize Advisory Council's proceedings must be infused with proper procedural safeguards that accord with the imperatives of natural justice. Otherwise, its decisions would be tainted. Therefore, the absence of published rules of procedure for the Belize Advisory Council for the purposes of section 98(4) of the Constitution is not an impediment that would entail, as the applicant claims, a denial of his right to the protection of the law.

3. DOES THE APPLICANT HAVE LEGITIMATE EXPECTATION THAT HE WOULD BE TREATED ACCORDING TO THE ORDINARY LAW INCLUDING THE GENERAL CRIMINAL LAW AND IN PARTICULAR, AS A PUBLIC OFFICER, IN ACCORDANCE WITH THE PROVISIONS OF THE PREVENTION OF CORRUPTION IN PUBLIC LIFE 1994? AND IF SO, HAS THIS BEEN DENIED HIM?

The applicant is a justice of the Supreme Court and has filed Affidavit evidence, deposing that based on his past experience and on his own knowledge of the General Rules and Orders for the Public Service and the Financial Orders for the Public Service, and the laws governing the making and prosecuting of criminal allegations against persons in Belize, he had formed the expectation that, as the allegations against him are all of a criminal nature, he should have first been investigated and prosecuted; and that the results of the investigation and or prosecution forwarded to the Chief Justice who would then forward these to the Governor-General for his consideration for the purposes of section 98 of the Constitution.

The applicant further deposes in his Affidavit evidence that based upon his own knowledge of the provisions of the Prevention of Corruption in Public Life Act 1994, he had expected that as a Justice of the Supreme Court, defined as a public officer in the Constitution, the provisions of this Act should have been complied with in dealing with the allegations against him.

Because this was not done, the applicant contends that this has resulted in a denial of his legitimate expectation which has resulted in a breach of his right to the protection of the law as is guaranteed him by section 3(a) of the Constitution.

It has been correctly stated, in my view, that the scope of the principle of legitimate expectation has been the subject of intense debate, and the principle itself is still in the process of evolution. The concept itself is founded upon the basic principle of fairness that legitimate expectations ought not to be thwarted.

Legitimate expectation arises where a person responsible for taking a decision has induced in someone who may be affected by the decision a reasonable expectation that he will receive or retain a benefit or that he will be granted a hearing before the decision is taken. The Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374; See De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th Edn. 1995) at page 417.

In the circumstances of the applicant, a judge of the Supreme Court, could he have had a legitimate expectation that the complaints alleged against him should have been dealt with through another procedure other than the one the Governor-General has commenced by writing to him on 2nd February 2001 forwarding the allegations against him?

Certainly the proposition contended for by the learned attorney for the applicant that he the applicant, even in his status as a Supreme Court judge is not above the law and if he commits an infraction of the laws of the land, including of course, the criminal law, the law should take it course, is, in my view, unexceptionable. No one is above or beyond the law.

But to press this salutary and egalitarian principle to the point, where as the applicant does, that because the complaints alleged against him are all of a criminal nature, he should therefore be proceeded against first by the investigatory and prosecutorial authorities and if needs be, on conviction, then in the manner provided for by section 98 of the Constitution will, I am afraid, not bear the weight the applicant seeks to put on it. That is, that he had legitimately expected that the police and the Director of Public Prosecutions should have first proceeded against him as the allegations are all criminal in nature.

In the first place, this contention overlooks the simple basic point that is contained in the discretion to prosecute: not all criminal investigations lead to prosecution and not in every case of a breach of the law is a prosecution launched.

But more fundamentally, the applicant contends that as a public officer within the provision of section 131 of the Constitution, he legitimately expected that the provisions of the Prevention of Corruption in Public Life Act 1994, would have been used to process the allegations against him.

In my view, there are several difficulties with this line of argument. First, the Prevention of Corruption in Public Life Act 1994 came into force on 27 September 1994, some thirteen years after the Constitution of Belize came into effect. It cannot seriously be argued that until then, section 98 of the Constitution was moribund, and could not have been operational if the need had arisen.

Secondly, the 1994 Act may or may not apply to judges of the Supreme Court under the generic rubric as public officers. A judge of the Supreme Court is certainly a genus of the species "public officer" as is referred to in section 131 of the Constitution. But he is genus that is by the same Constitution declared to be sui generis in terms of appointment, tenure and discipline, to wit, sections 97 and 98 and section 106(1) and (6) (b).

Thirdly, the contention that the applicant is a public officer simpliciter will set at naught the express constitutional provisions relating to him in terms of appointment, tenure and discipline.

Fourthly, the term "public officer" as used in section 131 of the Constitution is in the generic sense, for there may be special constitutional provisions relating to some public officer; in such a case, it is reasonable and logical to give effect to those special provisions. The applicant, as a Supreme Court judge, is one such public officer to whom particular provisions apply.

In my view, therefore, these particular constitutional provisions relating to the class of public officers to which the applicant belongs must prevail.

Moreover, to proceed against the applicant in the light of the allegations he says that are laid against him under either the general criminal law or under the provisions of the Prevention of Corruption in Public Life Act 1994, would seriously compromise or undermine the independence of the judiciary, which in the interest of the public would not be an edifying spectacle. This, of course, is not to say that judges are beyond the ordinary criminal law; but as the bulk of the allegations against the applicant arises in the course of his functions as a judge, it would be preferable for them to be dealt with under the regime provided for by the Constitution.

For similar reasons, I do not think that the provisions of the 1994 Act would, even if applicable, be appropriate to proceed in the circumstances of the applicant.

I do not therefore find that the applicant could have seriously entertained a legitimate expectation that his case would be treated other than as provided for in the provisions of the Constitution that are relevant and applicable to his position in the light of the allegations forwarded to him by the Governor-General.

In any event, the applicant cannot claim the benefit of the principle of legitimate expectation in the circumstances. Apart from raising the issue, the applicant cannot prove legitimate expectation in his Affidavit of 16th February 2001; the applicant has not provided any evidence that either the Governor-General (the decision-maker in this instance) or some authority or the other induced him directly or indirectly, or by express promise or representation from past practice that he would be proceeded against other than as provided in the Constitution.

Finally, I find on this issue that section 98 of the Constitution provides and constitutes a complete and exclusive code on the tenure of office of a judge of the Supreme Court, including the procedure for removal: ". . . it provides a procedure and an exclusive procedure for . . . suspension and termination and, if judicial independence is to mean anything, a judge cannot be suspended nor can his appointment be terminated by others or in other ways" per Lord Slynn of Hadley delivering the opinion of the Board of the Judicial Committee of the Privy Council in Rees v Crane (supra) at page 453, on almost similar provisions as are contained in the Constitution of Belize.

In the circumstances therefore, I hold that the applicant is not entitled to a Declaration that his right to the protection of the law as guaranteed in section 3(a) of the Constitution has been breached because he had legitimate expectation that the allegations against him should have been investigated and prosecuted by the appropriate authorities and that he had further legitimate expectations that the allegations against him would be enquired into under the provisions of the Prevention of the Prevention of Corruption in Public Life Act, 1994.

Finally, on the applicability of the 'General Rules and Orders for the Public Service' to the applicant as he calls them. These have now been revised and brought up to date and are now called Public Service Regulations 1996. It is clear that on any reading of these Regulations, a public officer of the class of the applicant is not, in terms of the disciplinary regime of these Regulations in Part IV, included or intended to be affected by them.

Regulation 3(1) provides:

"Subject to subregulations (2) (3) (4) and (5) below, the provisions of these Regulations shall apply to all public officers." (emphasis added)

Subregulation (3) states:

"These regulations shall apply to the officers specified in this subregulation only to the extent specified in subregulation (4) below:

1. offices to which sections 108 and 109 of the Constitution apply;

2. an office of a Justice of the Supreme Court." (emphasis added)

And subregulation (4) states:

"Subject to the Constitution, the provisions of these Regulations shall apply to the officers specified in subregulation (3) above in all respect except the method of their appointment, discipline and dismissal." (emphasis in the original)

Moreover, Regulation 57(1) provides as follows:

"The authority for the discipline of public officers is vested in the Commission; provided that where there is a law which provides the necessary means of dealing with disciplinary offences in the case of any members of the Public Service, proceedings shall be undertaken under such law . . ."

Also, in the preface to these Regulations, it is stated as follows:

"These Regulations apply primarily to officers appointed under section 106 and section 107 of the Constitution. As no separate regulations have so far been made for officers appointed under section 108 (Director of Public Prosecutions), section 109 (Auditor General), or section 97 (Justices of the Supreme Court), certain provisions of these regulations (particularly those relating to leave, pension, gratuity, advances and subsistence allowance and mileage allowance) have been applied to such groups of staff. Care has been taken to ensure that there is no conflict between the applicable regulations and the special constitutional provisions relating to such officers which exist." (emphasis added)

It could therefore be seen that the applicant, though a public officer in the generic term, is not one to whom for the purposes of discipline, the Public Service Regulations could be said to be applicable. In his case, the special constitutional provisions set out in section 98 are the applicable one.

There was therefore no reasonable basis for the applicant to have entertained the legitimate expectation he claims given his position and the circumstances.

4. ARE THE ALLEGATIONS ARISING OUT OF HIS CONDUCT IN THE CASE BETWEEN BUSINESS MACHINES AND SOLUTIONS LTD. v BELIZE TELECOMMUNICATIONS LTD. - ACTION NO. 435 OF 2000, SUB JUDICE?

The applicant contends here that his right to the protection of the law has been and is being contravened in so far as the primary matter of misbehaviour alleged against him and which has been referred to the Governor-General arose out of a case - Action No. 435 between Business Machines and Solutions Ltd. and Belize Telecommunications Ltd. which is still pending in the Supreme Court. Therefore, as the outcome of this case is still yet undecided and any legal matters arising therefrom giving rise to a dispute, may be the basis of appellate proceedings; it is consequently sub judice and therefore ordinarily unlawful to make any comments in whatsoever context out of Court as this may affect the outcome of that case.

The learned attorney for the applicant submitted that the complaint against his client to the Governor-General was that he should not have heard the case. The applicant himself deposes in paragraph 21 of his Affidavit of 13th February 2001 concerning an ex parte injunction granted by him in the case and talks of the attachments to the Governor-General's letter to him which includes the letter of complaint from attorney Lois Young-Barrow.

As I pointed out to the attorneys in this matter when the application was argued before me, I do not sit to determine the validity or otherwise of the allegations against the applicant. My principal task is to determine whether the requirements of procedural fairness have been observed in relation to the applicant. However, in determining whether this particular aspect of the matter is sub judicie or not, I have had to look at the letter of attorney Young-Barrow to the Governor-General of 16 October 2000; and the applicant's attorney stated that the complaint against his client here was that he should not have heard the case, meaning the application for an ex parte injunction. It is evident that the complaint alleged against the applicant is not his decision on the ex parte application as distinct from the way and manner he came to hear the application itself. The complaint is that one of the parties to the case "actually chose the judge by direct personal contact with the judge beforehand." (Letter of 16th October 2000 of Lois Young Barrow to Governor-General).

Surely, this is an allegation that must cause disquiet regardless of the merits or otherwise of the decision of the judge.

This course of conduct, if true, is outside the merits or facts of a particular case or the decision on the interlocutory application itself. It certainly would not feature in the appellate process, which is the appropriate medium to rectify wrong judicial decisions.

Rather ominously, such alleged conduct would undermine and compromise the managerial process of assignment of cases by which "competing claims, interests and demands" are, or should be presented before impartial judges, rather than before one who had manipulated the system and selected himself, for private reasons, to hear and determine a cause or matter. Surely, such alleged conduct would hold implications for the invocation of the disciplinary regime applicable to the judiciary.

This conduct cannot therefore be sub judice. It is a matter that goes beyond the confines of the particular case. It is an allegation that may strike at the very vitals of due and proper administration of justice.

The allocation of cases among judges is part of the managerial process of the administration of justice. It is often done by the court's registry under the superintendence of the head of the judiciary.

In Barnwell v Attorney General & Another (supra) at p. 112, it is stated in this connection that: ". . . allegations were directed to usurpation of the Chief Justice's functions as President of the High Court and interference with his power to distribute business among his judges . . . A judge so disposed threatens the managerial process, and may expose it to many abuses, in which he is a principal actor performing not impartially but for purposes best known to himself."

It may be recalled that on two earlier occasions, the applicant in that case had appeared before the Judicial Service Commission of Guyana (as part of the removal procedure provided in the Constitution) on allegations that he had heard and adjudicated on a divorce petition and had done the same on a petition for bail which had been refused by a magistrate after conviction. On both occasions he had done so without being assigned by the Chief Justice. The applicant was able to satisfy the Guyana Judicial Service Commission and there was no representation to the President that the question of his removal ought to be investigated.

It is clear therefore that this aspect of the allegations against the applicant, without it being necessary for me to pronounce on it one way or the other, as I do not consider this as part of my task in the present proceedings, cannot be sub judice.

I therefore am not able to grant the applicant a declaration that as he contends, "the primary matter of alleged misbehaviour" referred to the Governor-General by Ms. Lois Young-Barrow is sub judice.

The alleged conduct of the judge is not a matter pending between the parties to Supreme Court Action No. 435 of 2000 and it is distinct and separate from the merits of the case.

5. ARE IRRELEVANT AND PREJUDICIAL MATTERS INCLUDED IN THE COMPLAINT OF THE BAR ASSOCIATION OF BELIZE TO THE GOVERNOR-GENERAL WHICH DO NOT AMOUNT TO "MISBEHAVIOUR" FOR THE PURPOSES OF SECTION 98(3) OF THE CONSTITUTION?"

The applicant has strenuously submitted that highly irrelevant and prejudicial matters have been included in the complaint against him from the Bar Association to the Governor-General and that while some of this complaints may be related to the office of the applicant, the majority concerns his personal life, and they do not qualify for the purposes of section 98(3)of the Constitution as "misbehaviour."

Therefore, the applicant contends that for the Governor-General to send all the complaints to the Belize Advisory Council under subsection (5) would be a deprivation of the protection of the law guaranteed by section 3(a) of the Constitution. Moreover, he further contends, the Governor-General has erred and mistakenly applied the law on "misbehaviour."

I strenuously told both sides to this application that I did not perceive my function as a judge to determine whether the allegations against the applicant were true or not. My role, as I perceive it in these proceedings, is to see that procedural fairness and propriety in terms of natural justice are observed by the decision-maker in this case, the Governor-General, and to ensure that the rights of the applicant as guaranteed in the Constitution are observed and that no action taken in relation to him would infringe those rights.

By the laws and Constitution of Belize, the independence of the members of the judiciary and the security of their tenure are enshrined in subsection (3) of section 98 of the Constitution which states:

"A justice of the Supreme Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section." (emphasis added).

There then follow provisions on the procedure which I have tried to address in other parts of this judgment.

It is evident that subsection 5(a) of section 98 of the Constitution does not delineate or specify the contents of the "matter" which the Governor-General refers to the Belize Advisory Council when he considers that the question of removing a justice of the Supreme Court ought to be investigated.

In my view, at the very least, "the matter" referred to the Belize Advisory Council must include the complaints that triggered off the Governor-General's consideration in the first place. It must also contain any response or representation by the justice in question having been first given the opportunity to do so by the Governor-General. This latter necessarily flows from the requirement of natural justice, an opportunity for the judge to see, know and comment on what the Governor-General may include in his referral to the Belize Advisory Council if he were so disposed.

But I cannot over-emphasize that it is not any and every complaint concerning a justice of the Supreme Court that the Governor-General should or must refer to the Belize Advisory Council. This referral to the Belize Advisory Council of the question of the removal of a judge of the Supreme Court involves, no doubt, one of the onerous responsibilities with which the Governor-General is charged under the Constitution. I must conclude that in all probability, it is not one that is embarked upon with levity. And moreover, it is an exercise that the dictates of fair play and correct procedural requirement would ensure is not carried out without affording the justice concerned an opportunity to dissuade the Governor-General from so doing or even disabuse from his mind any lingering doubts he may harbour, by representations. These responses or representations by the judge may possibly convince the Governor-General of the frivolity or baselessness of the complaints. These representations must also therefore form part and parcel of the bundle in "the matter" the Governor-General refers, if he still minded, to the Belize Advisory Council.

To hold otherwise, will give form or substance to the metaphorical sword of Damocles that may be perceived as hanging over the heads of judges in the provisions of section 98(4) of the Constitution. This would undermine the vital issue of secured judicial tenure on which the indispensable principle of judicial independence is anchored.

Subsection (3) of section 98 of the Constitution in my opinion enshrines the vital issue of security of tenure for judges in the country and, as I have already pointed out, stipulates that they may be removed from office only for inability to perform the functions of the office whether arising from infirmity of body or mind or from any other cause or for misbehaviour.

In independent Belize, justices of the Supreme Court no longer hold office during pleasure. They can only be removed from office in accordance with the provisions and procedure specified in the Constitution.

Quite what is comprehended in the word "misbehaviour" however, is not defined nor stated anywhere. As I repeatedly told the parties during these proceedings that it is not part of my function to examine or pronounce on the veracity or otherwise of the matters concerning the applicant. That is for the tribunal specified in sections 98(5)(a) and 54 of the Constitution. That is to say the Belize Advisory Council.

It is at that stage that the question as to whether "the matter" referred constitutes "misbehaviour" for the purposes of section 98(3) is to be determined.

I can however say at this point that the law and learning on "misbehaviour" as a cause for removal from office relates to misbehaviour in office which means improper exercise of the functions appertaining to the office, or non-attendance or neglect of or refusal to perform the duties of he office - Halsburys Laws of England (4th Ed.) Vol. 8 para. 1107.

I cannot be unmindful of the earnest invitation of the learned attorney for the applicant to me to step in and protect the applicant as he urged, from being impeached as it were for behaviour which in his view is not connected with the office of the applicant. But ti is not without hesitation that I say that if I were to do so, which I doubt I have the power to do, I would be trespassing on the constitutional turf of the Belize Advisory Council. This institution is by the Constitution charged with the responsibility and duty to enquire into the matter and report on the facts thereof to the Governor-General.

But I believe I can safely say here that I am sure that the Belize Advisory Council will no doubt, take account of the fact that it is not every peccadillo or some humdrum sin or transgression to which every mortal is heir to that would constitute "misbehaviour" for the purposes of section 98(3) to warrant removal from office.

In any event, at that level, the applicant would have the right to be present or be represented and to make representation to the Belize Advisory and to call and examine witnesses. Even the learned attorney for the applicant conceded that while some of the matters alleged may be related to the office of the applicant, not all are.

I find myself therefore, unable to hold in the circumstances that the applicant has been denied the protection of the law. Consequently the Declaration sought on this score is denied.

In sum, in the light of my findings on the several issues raised in this application, I am unable to grant any of the reliefs sought by the applicant.

Finally, in the overall context of this application, it is my considered view that there has been no decision in relation to the applicant by the Governor-General, that can be said to ground the several reliefs sought by him from this Court. Unless, of course, the applicant is understood to be complaining that the Governor-General should not have written to him. So, whether by way of judicial review, or constitutional motion, there has, as yet, been no decision by the relevant decision-maker the Governor-General, which can be measured by this Court to see whether that decision meets the tests of procedural fairness in conformity with natural justice. Absent this, there is no relief presently that this Court can proffer the applicant.

However, section 20 of the Constitution confer the right to approach the Court by any person who apprehends that his or her constitutional rights have not only been infringed, or are being infringed but are also likely to be infringed. It is, I believe, this latter consideration that prompted the applicant to move this Court that some of his rights are likely to be infringed. In view of my several findings on this application, the applicant's move, in the light of the facts and circumstances of this case, can be described as a pre-emptive first strike. But I am afraid, the target is not properly sighted or the blow is not accurately delivered.

In the event therefore, the costs of this application will be paid by the applicant. These costs are to be taxed if not agreed.

A. O. CONTEH
Chief Justice

Dated: 12th March, 2001.