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.