The CCJ Has Now Constituted Itself as a Parliament

Caswell Franklyn, Head of Unity Workers Union

I must admit from the outset that I am out of my league, but that has never stopped me before, and I see no good reason why that should stop me now. Recently the Caribbean Court of Justice (CCJ) gave a judgement in a Belize case that I thought would have been the talk of the town. Unfortunately, this landmark case appears to go unnoticed and I can’t wait any longer to have my say.

The present Attorney General of Belize brought an action for misfeasance in public office against two former ministers in the last administration. Misfeasance occurs when someone acts improperly or illegally in performing an action that is in itself lawful. Apparently those two ministers were responsible for the sale of government land, at a substantial loss, to a company owned by one of the same ministers.

The local court at first instance ruled that the Government could not sue using the tort of misfeasance in public office: it was not an action available to the State. The Attorney General appealed, and the Court of Appeal overturned that ruling. The former ministers then took the matter to the CCJ. That court was divided on the issue, but by majority decision they have given the Attorney General the right to sue for misfeasance in public office.

As I understand it, in this case, the ministers had the power to sell the land, but selling at a loss in the circumstances of this case would be unlawful.

This ruling in this case is very interesting because it has opened a window for political witch-hunting where a new government can go after its opponents, in a situation where an independent, impartial and apolitical Director of Public Prosecutions has refused to institute criminal proceedings. Additionally, on the positive side if there is one, politicians have to be careful how they conduct the people’s business out of fear that it will come back to haunt them, even without integrity legislation.

My next concern is somewhat different: it appears that the CCJ has constituted itself as a parliament for Belize, and by extension Barbados and Guyana, and has legislated for those countries. While some might welcome the idea of politicians being taken to court for corruption: it is simply not the role of the court to put new laws on the books. We elect parliaments to legislate and the courts are there to interpret that legislation: The roles should not be mixed up.

Both the majority of the court and those dissenting agreed that there is no precedent for such a case in the commonwealth. One of the majority wrote:

There has emerged no case in any commonwealth jurisdiction where governments or states have sought to utilise the tort against public officials abusing powers conferred on them for their own financial gain. We find ourselves in virgin territory in deciding the discrete point which has arisen in this appeal for misuse and abuse of power intended to be used for the public good but which was used for his own benefit.

I could be wrong, but it is my view that the CCJ has created a dangerous precedent. The common law criminal offence of misfeasance in public office is already there to punish any public official who misuse his office for personal gain. An offender could be sent to prison and ordered to pay a substantial fine. However, the person to institute such a charge would be an independent Director of Public Prosecutions, and not a political Attorney General who could bring a civil case for political reasons.

With this ruling, the CCJ has opened a can of worms that was not theirs to open. There is a need for integrity legislation, but it should not be introduced through the back door. Judges are not there to legislate under the guise of extending the application of the common law. The correct place for initiating legislation is Parliament. If judges want to legislate, there is nothing that would stop them from resigning and running for parliament.

0 thoughts on “The CCJ Has Now Constituted Itself as a Parliament

  1. @CF. Maybe you would like to post the whole judgements. Not just the CCJ one, but also the one at first instance and of the Court of Appeal.

    There are means under our laws for public officials, including judges, to have prceedings brought against them. The test of a truly effective and independent judiciary is demonstrated when these laws can be properly applied and not subverted by political interests within the judiciary. It has the effect of encouraging off-shore interests and gives comfort that these interests CAN rely on justice.

    Your report, absent these judgments or links to them, is, frankly, unconvincing, even though it may have merit. So I urge you to post the judgements or links to them.

  2. Amused

    You always expect so much from me, and I welcome your challenges, however, I was unable to find the first instance and the Court of Appeal judgements since the Belize Court page is only updated to 2003, and this is a 2009 case. The case is Florencio Marin & Jose Coye v The Attorney General of Belize. You can follow the link below for the CCJ’s decision:

    I will continue looking elsewhere for the Belize decisions.

  3. Caswell,
    I think you need to read the judgment rather more closely. The critical issue was whether the State had the power to sue for misfeasance where such misfeasance had caused it loss. Since the State possesses such power in other circumstances; damage to state property, trespass to state lands, among other things, the question was essentially whether there was anything to prevent a similar right here. For the minority there was; the misuse of state power, the presence of the criminal sanction; for the majority these were not sufficient constraints, see especially the judgments of Witt and Anderson.

    This notion of judges making law is an old red herring; the common law permits it in all apical courts unless a statute exists to the contrary. The judges are not thereby “legislating”, merely declaring the common law.

    Amused, I see you are still on about judges being sued. Funny that there is no news on this yet locally nor a precedent anywhere in the common law world!

  4. Jack Spratt

    I have read the entire judgement, and nothing you nor the majority of the court has said has convinced me to change my views. I believe that judges should leave legislating to parliament. I suggest that you read the judgement of the minority more closely. This court has now legalised political victimization. The criminal law is there to deal with such cases but unfortunately for politicians they have no power to give instructions to the DPP in matters of this nature.

  5. @Spratt. I will, as usual, suggest that you go to the Registry (where I am sure you are very well known – and probably because of that you prefer not to ask for the relevant files as it might identify you ) and verify the information for yourself about a judge being sued. If you think you are going to draw me out before I am good and ready, well……….

  6. @CF. Without having had a lot of time to do other than read the judgement of the CCJ and to have the opportunity for further study and discussion, I have to say that I agree with the dissenting judgement and not that of the majority. I certainly admit that I may be in error and am going to discuss the case fully with others and see what they have to say. On CURSORY examination, I am inclined to agree with your conclusions. And I thank you most sincerely for bringing this matter forward. Will wonders never cease? Subject to my “caveat rumpus” (which means “cover your ass”) above, we gree, my bro. For once.

  7. So Caswell, you are saying that the State should be powerless to pursue claims against those who do it wrong except they prove this beyond reasonable doubt in a criminal trial? Read para 108 of the decision again. Incidentally, it is not easy to establish misfeasance as a tort.

  8. Amused

    Thank you. My major achievement would be to write something with which Carson C. Cadogan agrees.

    Jack Spratt

    I re-read paragraph 108, and your point is?

  9. @CF. Pay as little attention as possible to Sprat. He has an agenda, other than (purportedly) eating no fat – the which he leaves to his wife – and which might be interpreted as “fat head”. His bias in favour of attorneys general and their inalienble right (in his mind) to deification in furtherance of political dictate would seem to indicate collusion in having the judiciary taken over by politicians. Your position, CF, and that of the dissenting judges, would appear to have 100% support by those to whom I have spoken. I will therefore be most interested to read Jeff’s and anyone else’s position. As for CCC and your supposed respect for his opinion, how………well, never mind.

  10. Caswell, I am out of my league too and I really wanted to agree with you on this one. However I think both sides of the matter have been argued quite eloquently and convincingly. This case is extremely interesting.

    You are continuing your attack on the CCJ without just cause by accusing them of legislating for Belize, Barbados and Guyana. But in the judgments there is very little reference to interpretation of specific legislation, rather it seems to be all about interpreting common law. The CCJ has simply flexed its intellectual muscle and perhaps we should be proud of them for doing so. Don’t you think they have a right to interpret and push the boundaries of common law?

    You also state that the court has now “legalised political victimization”. I don’t know why you would think that this was not possible all along, but the various arguments in the case clearly set out alternative means of political victimization available any Attorney-General so minded.

  11. Man i agree with the with the AG taking a stand against them thieving politicans who thought the can do whatever they choose to sell the land because they had a legal right to do so . i also see a conflict of interest on their part wheeling and dealing among themselves. Hooray for the AG looking out for the peoples interest as long as politicians can write laws they would always write the laws that protect self interest. if the AG didn’t have the balls to fight the ministers would have gotten away with thievery setting a precedent for others to follow . The CCJ stepped in and has set the correct precedent. CF not so long ago they were laws that said blacks could be sold as slave i guess given your stance the law said it and no other law could change it. sometimes proper judgement and commonsense must RULE!

  12. Brutus

    You asked, “Don’t you think they have a right to interpret and push the boundaries of common law?”
    I agree that the court has that right, but that is not what they are doing in this case. They are creating new law, and that is not their job. You should recall that one of the reasons for the formation of the CCJ, even though it was denied, was the Privy Council creating new law in the case of Pratt and Morgan. Rather that flex their intellectual muscle, they should go back and review all the bad decisions that they made so far.

  13. well in this case they made the right decision to protect the people’s interest. Somebody have to police the police. as in this case the policewhich is the state was not doing a very good job.Hooray for the CCJ.

  14. ac

    It appears that you have misunderstood what I am saying. If the AG really wanted to take a stand against thieving politicians, he should have reported the matter to the police and have them prosecuted criminally. Misfeasance in public office is also a common law criminal offence. If found guilty they could have gone to jail and fined.

    The route taken by the AG would only result in the former ministers paying the money that the State would have lost on the sale. Hooray my foot.

  15. I presumed this was a lawsuit to recover over 94thousands dollars where the ministers sold land at an underpriced value. Maybe that was the apporpriate course of action. If the coutrs in Belize is complicated and moves at a snails pace i think the AG actions were appropriate in order for hasitly resolve.

  16. bro franklyn – when will you lead the charge to have that decision of the CCJ ARISING OUT OF THE WINTON CAMPBELL JUDGMENT overturned with respect to the pension rights of those public officers whose posts were abolished? i do not believe that this matter should be put on the backburner and allowed to go unchallenged?

  17. Balance

    I would love to be able to lead the fight to challenge the ruling in the Winton Campbell case, however, I simply don’t have the financial resources to do so. This matter affects all public officers and all employees of statutory boards, and I believe that the unions that collect dues from the majority of public workers should spend some of that money to defend them. As it stands, those workers have no rights if they lose their jobs through redundancy.

    The really hurtful thing is that it has always been government policy that public workers would not be treated less favourably than workers in the private sector. Nonetheless, this Government has exploited the ruling to the detriment of public workers. Just imagine working for several years, and then being made redundant only to find out that you have to wait until you reach 60 years of age to receive compensation. The present Government thinks that it is fair: they should be the ones leading the charge to protect the people of this country. They have failed miserable in that regard.

    • @Caswell

      One wonders what the membership/shop stewards bring to the floor for discussion if not their interest?

  18. David

    I have been around long enough to see the intellectual level of the persons who attend union meetings plummet. That is also the case for the leadership. In the earlier days, you had general workers who could battle intelligently with the best of them to put the case for the division that they represent. A person like Osmond Gaskin springs readily to mind: he did not have a secondary education, but he made university graduated look small. We do not have people of his ilk anymore. Even if you had an intelligent set of people attending meetings or even constituting the Council, the leadership who should articulate the case for the workers just can’t. Also, in the early days, you were your brother’s keeper: today people just don’t care as long as it is not happening to them.

  19. @CF. Your point (in the report) is well made and, without having had the benefit of discussion with people who may additional light on the decision, I offer you this assistance.

    The Constitution of Barbados at least (and I cannot speak for Belize) confirms the common law as it existed at the time of Independence. To change the common law, which is correctly defined by Wikipedia as “…….law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A “common law system” is a legal system that gives great precedential weight to common law……….The body of precedent is called “common law” and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression”), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.”

    I believe, subject to my future discussion with those more in the know, that the CCJ by its majority appears to have exceeded its authority. Therefore, it appears to have encroached on the rights and authority of the legislative branches of all countries of which it is the final court of appeal.

    So, subject as above, I agree with your contentions in your report and I would be interested to read other opinions here on BU that might persuade me otherwise.

    But why on earth are these people not being criminally prosecuted? Judges do have fairly wide sentencing rights in a criminal matter. There must be something here that you and I are missing. Is it a reluctance to give these people criminal records and/or jail time? What is it? On what basis is it justified?

    • A reminder about what the Belize CJ had to say at appeal

      In a case where the Attorney General, a quintessentially public officer, complains of abuse of power by another public officer; the remedy should not be recourse to the tort in civil courts. The remedy may be in disciplinary proceedings against the discredited public officer and, if necessary, recourse to the criminal offence in public office. I think policy and reason would require that the tort of misfeasance should be left in the field where it properly belongs: as a remedy by way of a course of action on the tort, available to the citizen against public officers who abuse their power with resultant loss or damage to the citizen.

  20. So who says that the AG cannot proceed to file criminal charges against those ministers . i don’t think we have heard the end of this case. The CCJ has given the AG the green light to move forward and rightfully so

  21. You have succeeded in drawing me out, David, even though I should tell you that it is not entirely the FSC that has kept me away, but rather a very busy summer so far in marking scripts, teaching summer school for a US university and, of course, writing. I am now preparing for a month long seminar in Employment Law to be run in August.

    I am contemplating the publication of a note on this case and I have indeed given it some thought. Put briefly, I am on the side of the majority in this case on the central legal issue; whether the State through the AG could sue in tort for misfeasance. Misfeasance is a tort as well as a crime, and the fact that one action is available does not preclude the existence of the other. It is a matter of preference.

    The argument for the minority therefore becomes one that the State should not be permitted to sue in tort! But why not? Because it has never been done? But it has never been prevented either! This is therefore not a legal answer at all, but one based on a fear of the new.

    Because it could be abused by the AG against his political opponents? Perhaps, but he would still need to win the case which is not an easy matter and if he has no reasonable grounds for the action, he may expose himself to a suit for abuse of process.

    The great advantage to suing in tort here (or breach of fiduciary duty) is the possibility of monetary compensation by the wrongdoer thus specifically redressing the injury done to the state. The purpose of criminal prosecution, on the other hand, is the punishment of the guilty; in this case a term of imprisonment. In addition, the burden of proof is lighter in tort.

    I am not an adherent of the view that judges make law. This charge is the last resort of those who disagree with the decision of an apical court such as the JCPC or the CCJ, and who are unwilling or unable to argue on the basis of principle. But the common law is in the exclusive purview of the judiciary and the issue here was entirely one of common law, having not been covered by statute previously.We might note that if the decision had gone the other way their lordships could have been equally accused of making law as well; legislating that the State was powerless to sue in tort for this wrong done to it.

    I notice that Conteh CJ in Belize spoke of “policy”. He, of course, would be fully aware that in the judicial process, policy only becomes relevant once we have established the principle.

    Keep up the great work with the blog, David. I still try to check in on weekends, although I don’t always let you know 🙂 Hi, Hants…

  22. Jeff Cumberbatch said – “This is therefore not a legal answer at all, but one based on a fear of the new”.

    This is exactly what I was thinking but I am glad you said it before I did. The main question asked by the majority was “Why not” and the main answer given by the minority was “Its never been done that way” and “There are other ways to do it”.

    And this is why I said that the CCJ exercised its intellectual muscle and that we might be proud of them. If we are so happy to look to precedent and accept the reasoning of “Lord Whomever” then let us also accept the reasoning of our own. Isn’t that the purpose of having the CCJ? Let other jurisdictions look to this ruling and see if they can fault the logic.

    • If we take Jeff’s position should we be worried that we had a split in the CCJ judgement?

      Does it speak to anything we should be concerned about at this stage?

      The question is posed against the background that we have countries in the region who lack confidence in the CCJ which Brutus alluded.

  23. @Jeff,

    Take David’s advice. Play more tennis.

    You overachieving brainiacs tend to forget the importance of “play’.

  24. Hants,

    I accept the advice of you and David, and I shall follow it, although some might think this real sweet irony coming from the two of you who seem to be on BU 24-7.

    Never mind, though, you two and some of the others have made my day on many an occasion!

    Keep it up!,

    A split might be in fact a good omen, David. It shows some independence of thought.

    • Fair enough Jeff but independence in thought must seem to be that and not for the sake of i!

  25. @Jeff,
    I am on BU a lot becaue 95% of my work (Creative) is done on the computer so I am usually making money and contributing to BU.

    I also spend a lot of time engaging in my passion. Fishing in rivers and streams. A poor substitute for fishing in Bim but I get exercise walking the banks looking for trout and starting next month salmon.

    I would rather be “there”.

  26. Congrats, Hants. You have found one part of the secret of happiness;

    If you want happiness:

    For an hour- take a nap
    For a day- go fishing
    For a year- inherit a fortune
    For a lifetime- help someone else.

    [Old Chinese proverb]

  27. @Jeff,
    As you know I have inherited 20% of a small fortune which I hope the “legal system” in Barbados will allow me to possess before I

    I do help others but taking a nap is difficult to achieve.

  28. David

    Jeff did not say anything that would have silenced this debate, but if he did, it shows that our people are lazy and refuse to think for themselves.

    Two judges of the CCJ disagreed as well the Chief Justice of Belize: the decision is clearly not settled law. A remedy was already available to the AG of Belize; there was absolutely no reason why the CCJ should invent a new procedure.

    Jeff wrote, ” The great advantage to suing in tort here (or breach of fiduciary duty) is the possibility of monetary compensation by the wrongdoer thus specifically redressing the injury done to the state. The purpose of criminal prosecution, on the other hand, is the punishment of the guilty; in this case a term of imprisonment. In addition, the burden of proof is lighter in tort.

    That does not make sense to me: a criminal prosecution could achieve both ends. The court could send the wrongdoer to prison as well as impose a fine. The facts of the case that have been disclosed so far clearly indicate that a crime has been committed. Is it that there is some unwritten code among politicians that they will not losk up each other.

  29. bro franklyn- an unwritten code not only among politicians but among lawyers too. i am still waiting to hear jeff in simple language explain whether the correct procedures were followed in amending the law to accomodate appointment of mr marston as challenged by you.

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