CCJ: It is in the public interest to prosecute official misfeasance!

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Former President of the Caribbean Court of Justice Michael de la Bastide. Sir Dennis Byron is the new President.

Several weeks ago I happened upon a 2011 online report by the Jamaica Gleaner entitled CCJ Hands Down Landmark Ruling: Gives Go-Ahead For AG To Sue Former Government Ministers. The story began with the five-member court’s joint judgment that it did not share the appellants’ view that “recognition of a right in the attorney to sue in tort of misfeasance would lead to the unleashing of political vendettas in Belize.” The Belize government had filed a lawsuit against former ministers, Florencio Marin and Jose Coye, seeking to recover US$473,923 plus exemplary damages, which the Dean Barrow government claimed was lost in the sale of lands below market price value by the previous administration. The Ministry of Natural Resources accused the two former ministers of conduct unbecoming of government officials while in office during the tenure of former prime minister Said Musa.

The suit alleged the two officials sold 57 pieces of prime government lots to a private company, which resulted in the loss of hundreds of thousands of dollars to taxpayers. The land, once owned by the University of Belize, was reportedly sold to the government of Belize under the Musa administration for far more than was paid by a private owner. The case was first heard before the Belize Chief Justice Conteh, who ruled that the attorney general’s complaint about abuse by another public officer should not seek recourse in the torts of civil courts. The AG appealed the ruling and the Belize Supreme Court overturned the Chief Justice’s ruling.

Justices Jacob Wit, Desiree Bernard and Winston Anderson said they agreed with the final conclusion of the Court of Appeal of Belize that the state can sue the appellants for misfeasance in public office. Justice Anderson in his written judgment said he concedes that “an action of the kind initiated by the attorney general in the case is unprecedented and that from one perspective centuries of forensic thought and assumptions could be taken to lean against proceeding.” On the other hand, he equally admitted that to allow the suit could have significant implications for the role of the State in the law of torts. To recognize competence in the attorney general to bring this suit naturally raises the prospect of the Crown suing, possibly as parens patriae, in a host of other torts including trespass, nuisance and negligence.

“These are matters for another day. What to my mind is presently obvious is that none of these concessions can be sufficient reason to deny the logic of developments in the tort of misfeasance in public office which in this case converged with the evolution of the corporate nature of the State in the law of torts.” Justice Bernard said there was no doubt that criminal prosecution will send a strong message to public officers who utilize powers entrusted to them for their own benefit, and which result in financial loss to the State. These options of criminal prosecution, however, are not within the remit of the attorney general but solely the function of the director of public prosecution, as provided for in Section 50 of the Belize Constitution and which shall not be subject to the direction or control of any other person or authority.

Justice Bernard said the novelty of the State being capable of suing under the tort is by no means fatal, “but it just widens the category of those entitled to sue for abuse of power by a public officer as has been done before provided there is sufficient interest to found standing and economic loss has been established. At the end of the day it is the duty of the attorney general to preserve the patrimony of Belize by recovering financial loss from those allegedly responsible for undervaluing national lands in their quest for personal gain.” In their joint judgment former president of the CCJ Michael de la Bastide and Justice Adrian Saunders said allowing the State to pursue tortuous misfeasance in cases such as alleged has the effect of ascribing the same legal consequence to qualitatively different violations.

They said: “The corrupt acts of a public officer that cause material damage to the State are placed on the same level, weighed in the same scales and afforded the same redress as abuse of office causing material damage to private entities. It is not unusual for the law to assess obligations to and by the State differently from those between citizens. The similar treatment accorded here reduces the gravity of fiduciary obligations owed by public servants toward the State, flies in the face of the resolve of parliament and undermines the international commitments undertaken by the State of Belize.” Additionally, the two CCJ judges said public wrongs should normally attract public sanctions and that corrupt acts ought to be dealt with by punishing the perpetrator.

“When allegations are made that a minister has misbehaved in office and the misbehavior occasions significant and foreseen economic loss to the State and corresponding personal gain to the minister and/or his company, it is in the public interest that criminal proceedings be instituted. The failure to detect, investigate, prosecute and punish corruption has a corrosive impact on democracy and the rule of law. We underestimate at our peril the degree to which such failure affords encouragement to the criminal element in society and contributes to burgeoning crime rates. Extending the tort of misfeasance unnecessarily to give the attorney general another choice of civil remedies does not strike a blow for maintenance of probity of public officials. Quite the contrary, it has the opposite effect. It offers the miscreant the softer option of civil liability.”

Next issue: The CCJ hands down its judgement.

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