Danh mục: Khôi phục

PART V

The Executive

36.-(l) The executive authority of Belize is vested in Her Majesty.

(2) Subject to the provisions of this Constitution, the executive authority of Belize may be exercised on behalf of Her Majesty by the Governor-General either directly or through officers subordinate to him.

(3) Nothing in this section shall prevent the National Assembly from conferring functions on persons or authorities other than the Governor-General.

37.-(l) There shall be a Prime Minister of Belize who shall be appointed by the Governor-General.

(2) Whenever the Governor-General has occasion to appoint a Prime Minister he shall appoint a member of the House of Representatives who is the leader of the political party which commands the support of the majority of the members of that House; and if no political party has an overall majority, he shall appoint a member of that House who appears to him likely to command the support of the majority of the members of that House.

(3) If occasion arises for making an appointment to the office of Prime Minister while the National Assembly is dissolved, then, notwithstanding the provisions of subsection (2) of this section, a person who was a member of the House of Representatives immediately before the dissolution may be appointed as Prime Minister.

(4) The Governor-General shall remove the Prime Minister from office if a resolution of no confidence in the Government is passed by the House of Representatives and the Prime Minister does not within seven days either resign from his office or advise the Governor-General to dissolve the National Assembly.

(5) The office of Prime Minister shall also become vacant-

(a) if the holder of the office ceases to be a member of the
House of Representatives otherwise than by reason of the dissolution of the National Assembly;

(b) if, by virtue of section 59(3) of this Constitution, he is required to cease to perform his functions as a member of the House; or

(c) if he is informed by the Governor-General that the Governor-General is, in accordance with subsection (2) or (3) of this section, about to reappoint him as Prime Minister or to appoint another person as Prime Minister.

(6) In exercise of the powers conferred on him by this section the Governor-General shall act in his own deliberate judgment.

38. The Governor-General shall, acting in accordance with the advice of the Prime Minister, designate a Minister as Deputy Prime Minister to whom the Prime Minister may from time to time depute such of his functions as he may specify.

39.-(l) Whenever the Prime Minister is absent from Belize or is by reason of illness unable to perform the functions conferred on him in accordance with this Constitution, those functions (other than the functions conferred by this section) shall be performed-

(a) by the Deputy Prime Minister; or

(b) in the absence of the Deputy Prime Minister or if he too is likewise unable to perform those functions, by such other Minister as the Governor-General may authorise for that purpose.

(2) The Deputy Prime Minister shall cease to perform the functions of the Prime Minister when he is informed by the Governor-General that the Prime Minister is about to resume those functions.

(3) A Minister authorised to perform the functions of the Prime Minister under subsection (1)(b) of this section shall cease to perform those functions when he is informed by the Governor-General that the Deputy Prime Minister is about to assume, or that the Prime Minister is about to resume, those functions.

(4) The powers of the Governor-General under this section shall be exercised by him in accordance with the advice of the Prime Minister:

Provided that if the Governor-General, acting in his own deliberate judgment, considers that it is impracticable to obtain the advice of the Prime Minister owing to the absence or illness of the Prime Minister he may exercise those powers-

(a) in accordance with the advice of the Deputy Prime Minister; or

(b) if he likewise considers it impracticable to obtain the advice of the Deputy Prime Minister, in his own deliberate judgment.

40.-(l) There shall be, in addition to the office of Prime Minister, such other offices of Minister of the Government as may be established by the National Assembly or, subject to the provisions of any law enacted by the National Assembly, by the Governor-General, acting in accordance with the advice of the Prime Minister.

(2) Appointments to the office of Minister shall be made by the Governor-General, acting in accordance with the advice of the Prime Minister, from among members of the House of Representatives and of the Senate:

Provided that persons holding the office of Speaker of the House of Representatives or President of the Senate may not be appointed to the office of Minister.

(3) If occasion arises for making an appointment to the office of Minister while the National Assembly is dissolved, then, notwithstanding the provisions of subsection (2) of this section, a person who was a member of the House of Representatives or of the Senate immediately before the dissolution may be appointed as Minister.

(4) The office of any Minister shall become vacant-

(a) if the holder of the office ceases to be a member of the House of Representatives or of the Senate otherwise than by reason of the dissolution of the National Assembly;

(b) if, by virtue of section 59(3) or 64(3) of this Constitution, he is required to cease to perform his functions as a member of the House of Representatives or of the Senate;

(c) if the Governor-General, acting in accordance with the advice of the Prime Minister, so directs;

(d) if the Prime Minister resigns from office within seven days after a resolution of no confidence in the Government has been passed by the House of Representatives or is removed from office under section 37(4) of this Constitution; or

(e) on the appointment of any person to the office of Prime
Minister.

(5) In this section, “Minister” means a Minister of the Government other than the Prime Minister.

41.-(l) The Governor-General, acting in accordance with the advice of the Prime Minister, may, by directions in writing, assign to the Prime Minister or any other Minister responsibility for any business of the Government, including the administration of any department of government:

Provided that responsibility for finance shall be assigned to a Minister who is a member of the House of Representatives.

(2) Where a Minister has been charged with responsibility for any department of government, he shall exercise general direction and control over that department of government.

42.-(1) The Attorney-General shall be the principal legal adviser to the Government.

(2) The office of Attorney-General shall be the office of a Minister, with responsibility for the administration of legal affairs in Belize.

(3) No person shall be qualified to hold the office of Attorney-General unless he is a person who has for at least five years been entitled to practise as an advocate in a court having unlimited jurisdiction in civil and
criminal matters in some part of the Commonwealth or in the Republic of Ireland or a court having jurisdiction in appeals from any such court.

(4) If a person holding the office of Attorney-General is for any reason unable to perform the functions conferred on him by or under any law, those functions may be performed by such other person, being a person qualified as aforesaid (whether or not that person is a member of either House of the National Assembly), as the Governor-General, acting in accordance with the advice of the Prime Minister, may direct.

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

43.-(1) Whenever a Minister other than the Prime Minister is absent from Belize or is within Belize but by leave of the Governor-General is not performing the functions of his office or by reason of illness is unable to perform those functions, the Governor-General may authorize some other Minister to perform those functions or may appoint a member of the House of Representatives or of the Senate to be a temporary Minister in order to perform those functions; and that Minister may perform those functions until his authority or, as the case may be, his appointment is revoked by the Governor-General or he vacates office as a Minister under section 40(4) of this Constitution.
(2) The powers of the Governor-General under this section shall be exercised by him in accordance with the advice of the Prime Minister:

Provided that if the Governor-General, acting in his own deliberate judgment, considers that it is impracticable to obtain the advice of the Prime Minister owing to his absence or illness he may exercise those powers in accordance with the advice of the Deputy Prime Minister.

44.-(l) There shall be a Cabinet of Ministers for Belize which shall consist of the Prime Minister and the other Ministers.

(2) The Cabinet shall be the principal executive instrument of policy with general direction and control of the Government and shall be collectively responsible to the National Assembly for any advice given to the Governor-General by or under the general authority of the Cabinet and for all things done by or under the authority of any Minister in the execution of his office.

(3) The provisions of subsection (2) of this section shall not apply in
relation to –

(a) the appointment and removal from office of Ministers and
Ministers of State, the assignment of responsibility to any Min- ister under section 41 of this Constitution, or the authorisation of another Minister to perform the functions of the Prime Min- ister during absence or illness; or

(b) the dissolution of the National Assembly.

(4) Whenever practicable the Prime Minister shall attend and preside at all Cabinet meetings; at a meeting of the Cabinet from which the Prime Minister is absent, any other Minister appointed by him for the purpose shall preside.

45.-(l) The Governor-General, acting in accordance with the advice of the Prime Minister, may appoint Ministers of State from among the members of the House of Representatives or of the Senate to assist Ministers in the performance of their duties.

(2) The office of a Minister of State shall become vacant-

(a) if the holder of the office ceases to be a member of the House of Representatives or of the Senate otherwise than by reason of the dissolution of the National Assembly;

(b) if, by virtue of section 59(3) or 64(3) of this Constitution, he is required to cease to perform his functions as a member of the House of Representatives or of the Senate;

(c) if the Governor-General, acting in accordance with the advice of the Prime Minister, so directs;

(d) if the Prime Minister resigns from the office within seven days after a resolution of no confidence in the Government has been passed by the House of Representatives or is removed from office under section 37(4) of this Constitution; or

(e) on the appointment of any person to the office of Prime
Minister.

46. A Minister or a Minister of State shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and office.

47.-(l) There shall (except at times when there are no members of the House of Representatives who do not support the Government) be a Leader of the Opposition who shall be appointed by the Governor-General.

(2) Whenever there is occasion for the appointment of a Leader of the Opposition the Governor-General shall appoint the member of the House of Representatives who appears to him most likely to command the support of a majority of the members of the House who do not support the Government: or, if no member of the House appears to him to command such support, the member of the House who appears to him to command the support of the largest single group of members of the House who do not support the Government.

(3) If occasion arises to appoint a Leader of the Opposition during the period between a dissolution of the National Assembly and the day on which the ensuing election of members of the House of Representatives is held, an appointment may be made as if the National Assembly had not been dissolved.

(4) The office of Leader of the Opposition shall become
vacant-

(a) if the holder of the office ceases to be a member of the House of Representatives otherwise than by reason of a dissolution of the National Assembly;

(b) if by virtue of section 59(3) of this Constitution, he is required to cease to perform his functions as a member of the House; or

(c) if he is removed from office by the Governor-General under the provisions of subsection (5) of this section.

(5) If it appears to the Governor-General that the Leader of the Opposition is no longer able to command the support of a majority of the members of the House of Representatives who do not support the Government or (if no member of the House appears to him to be able to command such support) the support of the largest single group of members of the House who do not support the Government, he shall remove the Leader of the Opposition from office.

(6) Subject to the provisions of section 61(3)(b) of this Constitution, during any period in which there is a vacancy in the office of Leader of the Opposition, the provisions of this Constitution containing the requirement that action shall be taken in accordance with the advice of, or after consultation with, or with the concurrence of, the Leader of the Opposition shall have effect as if there were no such requirement.

(7) The powers of the Governor-General under this section shall be exercised by him in his own deliberate judgment.

48. Subject to the direction and control of the Minister pursuant to section 41(2) of this Constitution, every department of government shall be under the supervision of a public officer whose office is referred to in this Constitution as the office of a permanent secretary:

Provided that two or more government departments may be placed under the supervision of one permanent secretary.

49.-(l) There shall be a Secretary to the Cabinet whose office shall be a public office.

(2) The Secretary to the Cabinet, who shall have charge of the Cabinet Office, shall be responsible, in accordance with such instructions as may be given to him by the Prime Minister, for arranging the business for, and keeping the minutes of, the Cabinet and for conveying the decisions of the Cabinet to the appropriate person or authority and shall have such other functions as the Prime Minister may direct.

50.-(l) There shall be a Director of Public Prosecutions whose office shall be a public office.

(2) The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do-

(a) to institute, and undertake criminal proceedings against any person before any court of law (other than a court-martial) in respect of any offence alleged to have been committed by that person;

(b) to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.

(3) The powers of the Director of Public Prosecutions under subsection (2) of this section may be exercised by him in person or through other persons acting under and in accordance with his general or special instructions.

(4) The powers conferred on the Director of Public Prosecutions by paragraphs (b) and (c) of subsection (2) of this section shall be vested in
him to the exclusion of any other person or authority:
Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.

(5) For the purposes of this section, any appeal from a judgment in criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings, to any other court (including Her Majesty in Council) shall be deemed to be part of those proceedings:

Provided that the power conferred on the Director of Public Prosecutions by subsection (2)(c) of this section shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved at the instance of such a person.

(6) Subject to the powers of the Attorney-General under section 42(2) of this Constitution, in the exercise of the powers vested in him by subsection (2) of this section the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.

51. Subject to the provisions of this Constitution and of any other law, the Governor-General may constitute offices for Belize, make appointments to any such office and terminate any such appointment.

52.-(l) The Governor-General may-

(a) grant a pardon, either free or subject to lawful conditions, to any person convicted of any offence;

(b) grant to any person a respite, either indefinite or for a speci- fied period, of the execution of any punishment imposed on that person for any offence;

(c) substitute a less severe form of punishment for any
punishment imposed on any person for any offence; or

(d) remit the whole or any part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to the Crown on account of any offence.

(2) The powers of the Governor-General under subsection (1) of this section shall be exercised by him in accordance with the advice of the Belize Advisory Council.

53. Where any person has been sentenced to death (otherwise than by a court-martial) for an offence, the Attorney-General shall cause a written report of the case from the trial judge (or the Chief Justice, if a report from the trial judge cannot be obtained), together with such other information derived from the record of the case or elsewhere as he may require, to be taken into consideration at a meeting of the Belize Advisory Council, so that the Council may advise the Governor-General whether to exercise any of his powers under section 52(l) of this Constitution.

54.-(l) 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 any 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.

(2) Two members of the Council shall be appointed by the
Governor-General, acting in accordance with the advice of the Prime Minister given with the concurrence of the Leader of the Opposition, and the other members, including the Chairman of the Council, shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister given after consultation with the Leader of the Opposition:

Provided that in the process of consultation with the Leader of the Opposition for the appointment of the Chairman, the Prime Minister shall use his best endeavours to secure the agreement of the Leader of the Opposition.

(3) No person shall be appointed as a member of the Belize Advisory Council unless he is a citizen of Belize, except that a member of the Council who holds or has held office as a judge of a superior court of record need not be a citizen of Belize provided that he is a Commonwealth citizen.

(4) Members of the Belize Advisory Council shall be appointed for a period of ten years or such shorter period as may be specified in their respective instruments of appointment.

(5) A member of the Belize Advisory Council shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and office.

(6) The office of a member of the Belize Advisory Council shall become vacant –

(a) at the expiration of ten years from the date of his appointment or at the expiration of the period specified in the instrument by which he was appointed, whichever is the sooner;

(b) when he attains the age of seventy-five years;

(c) if he resigns such office by writing under his own hand addressed to the Governor-General; or

(d) if by a resolution of the House of Representatives supported by two-thirds of the members of that House he is declared unable to discharge the functions of his office by reason of per- sistent absence or infirmity of body or mind, or to be in breach of the provisions of section 121 of this Constitution.

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

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

(b) to perform such other tasks and duties as are conferred or im- posed 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.

(9) The Governor-General, acting in accordance with the advice
of the Prime Minister given after consultation with the Leader of the Opposition, shall appoint one of the members of the Council to be the Senior Member.

(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:

Provided further that where the Council is convened to consider the removal of the Chairman, some other person who holds or has held office as a Judge of a superior court of record appointed by the Governor-General on the advice of the Prime Minister given after consultation with the Leader of the Opposition, shall act as the Chairman for that purpose.

(12) At meetings of the Belize Advisory Council-

(a) the quorum shall be five members;

(b) decisions shall be taken by a majority of the votes of those members of the Council present and voting; and

(c) in the event that votes are equally divided on any matter, the Chairman, except when he is the Governor-General, shall have a casting vote in addition to his original vote.

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

(14) The Belize Advisory Council may, subject to the provisions
of this section and to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of any member.

(15) The question whether or not the Belize Advisory Council has validly performed any functions entrusted to it by this Constitution or any other law shall not be enquired into by any court of law.

Robert Temple Esq. Richard J. Connor Esq. William A. Parker Esq. Henry P. Shooles Esq. W. A. M. Sherrif Esq. William M. Goodman Esq. William J. Anderson Esq. Walter L. Lewis Esq. Frederick M. Maxwell Esq. Walter L. Shaw Esq. R. B. Roden Esq. Herbert K. M. Sisnett Esq. Charles W. W. Greenidge Esq Sir Arthur K. Agar Esq. Sir Carleton G. Langley Esq. Frederick M. Boland Esq. Sir Alfred V. Crane Esq. Erskine R. L. Ward Esq. Sir Clifford De L. Innis Esq. Arthur R. F. Dickson Esq. Sir Denis E. G. Malone Esq. Albert L. Staine Esq., CBE George C. R. Moe, Esq., QC George N. Brown, Esq. Taufik S. Cotran Esq., CBE Sir George N. Brown George B. Singh, Esq. Manuel Sosa, Esq., CBE, SC Traodio Gonzalez Dr. Abdulai Osman Conteh

1843-1861 1862 1875-1881 1881 1883-1886 1886-1889 1890-1900 1900-1906 1906-1911 1912-1914 1915-1921 1922-1931 1932-1936 1936-1940 1940-1947 1948-1949 1950-1954 1955-1957 1957-1972 1973-1974 1974-1979 1979-1982 1982-1985 1985-1986 1986-1990 1990-1998 1998 1998-1999 1999-2000 2000-

Fifty-four years old, Dr. Conteh who hails from Sierra Leone, was educated at King’s College in London and Cambridge Universities. He obtained a Bachelor’s Degree with honours in law and a Master’s Degree from London University. In 1968, he won the Harold Porter Prize for Land Law at King’s College. He went on to obtain the LL.B. Degree with honours and the Ph.D. Degree from Cambridge University. He is a member of Lincoln’s Inn in London where he was called to the Bar of England and Wales in 1970.

Dr. Conteh later taught law at both the University of Sierra Leone and the Sierra Law School for many years as well as practicing law in both his native Sierra Leone and The Gambia.

Dr. Conteh has also held several public offices in Sierra Leone: Minister of Foreign Affairs (1977-1984); Minister of Finance (1984-1985); Attorney-General and Minister of Justice (1987-1991) and First Vice-President and Minister of Rural Development (1991-1992). He was also for several years an elected Member of Parliament in the Legislature of Sierra Leone.

Dr. Conteh was a Senior Advisor to World Space Foundation in Washington, D. C., from 1997-1998, and a Senior Fellow at the International Center also in Washington since 1997.

Until his appointment as Chief Justice, Dr. Conteh was a Civil Affairs Officer with the United National Transitional Authority for East Timor (UNTAET), and was in charge of Judicial Affairs with responsibility for training lawyers and reconstituting the judiciary in East Timor.

Dr. Conteh is married and has several children.

(GEORGE PRICE PLAINTIFF
BETWEEN (
(AND
(
(EVAN HYDE
(AND
(CREAM LIMITED
DEFENDANTS
Supreme Court
Action No. 270 of 1981
6th April, 1982
Alcantara, J.

Mr. Courtenay with Mr. Glenn D. Godfrey, for the Plaintiff.
Mr. Denys Barrow, for the Defendants.

Libel – Defendants publishing newspaper article allegedly linking Plaintiff to international drug trafficking – Whether newspaper article defamatory – How words in article are to be construed – Words to be given their natural and ordinary meaning – Defendants raising defences of fair comment and qualified privilege – Requirement for Defendants to give particulars stating statements of facts and matters relied on in support of the allegation that words in article were true – Order 82 Rule 3(2) of the English Rules of the Supreme Court – Meaning of public interest – Elements of the defences of fair comment and qualified privileges – Court finding evidence of express malice- Assessment of Damages – Plaintiff seeking exemplary and/or aggravated damages – Defendants failing to apologize – Mitigation of Damages – Effect of section 9 of the Libel and Defamation Ordinance on the quantum of damages.

J U D G M E N T

The Plaintiff is the Prime Minister of Belize and was formerly at all material times the Premier of Belize, the Minister of Finance and a Member of the National Assembly.

The first named Defendant is the editor and publisher. The Defendant makes no admission as to the second named Defendant being the printer of the newspaper called “Amandala”.

The Plaintiff alleges that the Defendants wrote and published an article which was defamatory of him. The article is set out in Paragraph 3 of the Statement of Claim. For the sake of brevity I shall reproduce only such part of the article as refer to the Plaintiff, either directly or indirectly, but it must be borne in mind that the article must be read as a whole.

“Mex Magazine Says Dead (?) NARCOTICS
TRAFFICER (sic) CONNECTED TO BELIZE PREMIER

Today’s issue of the Mexican Magazine PRESENCIA links a Mexican drug trafficer (sic) reportedly shot in Houston, Texas to Belize Premier George Price.

Jorge Diaz Barrera was Vice President of the Belize Air Cargo Co., and in Merida used an elegant Mercedes-Benz with Belize diplomatic license plates which ‘shows the direct connection with Premier George Price and links with him in different special businesses’.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Diaz Barrera boasted to his friends in Merida that the Belize Air Cargo Co. was the property of George Cadle Price, Prime Minister of Belize. Functionaries of the police and persons connected to the media, coincide in affirming that Jorge Diaz Barrera, and associates, are only a link in the chain of international drug traffic of South America and U.S.A. It is often repeated that Belize continues to be a refuge for ‘contrabandistas’ and gangsters of all kinds. The government of George Price has accused the opposition of being financed by the American Mafia.

Nevertheless, George Price himself has business in foreign countries but appears at home to be upright and pure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..”.

The Plaintiff alleged that by the said words in their natural and ordinary meaning the Defendants meant and were understood to mean:

(a) That the Plaintiff is involved in international drug trafficking.

(b) That the Plaintiff is an associate of a person who is involved in international drug trafficking.

(c) That there is evidence which links the Plaintiff with illegal activities.

(d) That the Plaintiff is the owner of an airline company which is connected with drug trafficking.

(e) That the Plaintiff permitted the unlawful use of Belize diplomatic license plates by a drug trafficker in Mexico.

(f) That the Plaintiff has permitted smugglers and gangsters of all kinds to use Belize as a refuge and haven.

(g) That the Plaintiff and a person connected with the traffic of narcotics are together involved in various unlawful enterprises.

(h) That the Plaintiff deceitfully pretends in Belize to be upright and pure while corruptly maintaining illegal businesses abroad.

The Defence denies that the words are capable of bearing the meanings alleged or that they were in any way defamatory. They have also pleaded the defense of fair comment in its rolled-up version. Paragraph 4 of the Defense is drafted thus:

“4. In so far as the said words consist of allegations of facts. They are true in substance and in fact; in so far as they consist of expressions of opinions, they are fair comment made in good faith and without malice upon the said facts, which are matters of public interest.”

Pursuant to Order 82 Rule 3(2) of the English Rules of the Supreme Court, which is applicable to the Supreme Court of Belize, the Defendants must give particulars stating:

(1) which of the words complained of are alleged to be statements of facts; and

(2) the facts and matters relied on in support of the allegation that the words are true.

The defense purports to comply with this rule by giving the following particulars as to (1) :–

“Today’s issues of the Mexican Magazine PRESENCIA links a Mexican drug trafficker (sic) reportedly shot in Houston, Texas to Belize Premier George Price.

Jorge Diaz Barrera was Vice President of the Belize Air Cargo Co., and in Merida used an elegant Mercedes-Benz with Belize diplomatic licence plates”.

And the following facts and matters in support of the allegation that the said words are true:–

(a) The said issue of the said magazine referred to did in fact link a Mexican drug trafficker to Belize’s Premier George Price.

(b) Jorge Diaz Barrera was in fact Vice-President of the Belize Air Cargo Co.

(c) In Merida he used an elegant Mercedes-Benz.

(d) The said Mercedes-Benz bore Belize diplomatic licence plates.

The Defence is further relying on defense of qualified privilege. At paragraph 4A of the Defence this is what they have to say:

“4A. The occasion of publication was an occasion of qualified privilege.”

And in the Particulars given, paragraph 5 is of special interest. It states:

“(5) In the premises the Defendant Evan Hyde, as editor and publisher of a local newspaper, was under a moral duty to publish the said words to the general public and the general public had a like duty and/or interest to receive them.”

It is obvious that the Defence is relying on moral duty. On the pleadings there are five main issues for the Court to decide:

A. Are the words complained of defamatory of the Plaintiff?

B. If so, can the Defendants avoid liability by their defence of fair comment as pleaded?

C. Even if so, can the Defendants rely on the defence of qualified privilege?

D. If not, what damages is the Plaintiff entitled to?

E. Is Cream Ltd. a proper party before the Court?

Dealing with the last issue first I would like to state that in their pleadings the Defence have traversed that the second Defendant was the printer. They have not admitted it. I think there is a shade of difference between a denial and a non-admission. However, suffice to say that it is for the Plaintiff to prove an issue which is not admitted. The Plaintiff purported to discharge this burden by calling as a witness the Secretary of the Company. At the end of his examination-in-chief there was evidence to support this allegation. However this evidence was nullified in cross-examination when the witness stated that according to the particulars required by law (the Newspaper Ordinance) the printer of the “Amandala” is Evan Hyde. The Plaintiff next sought to prove the point by getting the Defendant to admit in the witness box that Cream Ltd. was in fact the printer. The Defendant has made no admission and the newspaper produced dated 12th March, 1982 certainly discredits his evidence but does not prove that the printer of the “Amandala” is Cream Ltd.

On the basis that he who alleges must prove I am not satisfied that the Plaintiff has discharged his onus of satisfying the Court that Cream Ltd. was or is the printer.

Now I turn to the first issue A, libel or no libel. I have set out in a previous decision of this Court (No. 272 of 1981) concerning a libel action by the same Plaintiff against another newspaper which also made use of the article in the PRESENCIA Magazine, the approach to this issue. It must be a commonsense one. I direct my mind to the case of Lewis v Daily Telegraph (1964) A.C. 234 as to the test to be applied. The question to be answered is whether in their natural and ordinary meaning the words complained of were defamatory in themselves or were capable of bearing all or any of the meanings alleged by the Plaintiff. This is a question of the law for me to decide.

Then there is a question of fact as to whether a jury of reasonable men and women would find that the words complained of in their natural and ordinary meaning bear any or all the meanings alleged.

I find as a matter of law that the meanings alleged in paragraph (b), (d), (e) and (g) are capable of being sustained. I find that the sting of the libel is contained in the second paragraph of the article complained of and in the assertion in the said article that the Plaintiff is the owner of the Belize Air Cargo, and would so direct a jury. I find that a Belize jury would come to the conclusion that the words complained of in fact do bear all the four meanings alleged, to wit:

(b) That the Plaintiff is an associate of a person who is involved in international drug trafficking.

(d) That the Plaintiff is the owner of an airline company which is connected with drug trafficking.

(e) That the Plaintiff permitted the unlawful use of Belize diplomatic licence plates by a drug trafficker.

(g) That the Plaintiff and a person connected with the traffic of narcotics are together involved in various unlawful enterprises.

Consequently I so find.

The Defendant has informed the Court that they are withdrawing the defence of fair comment. As this was done at the eleventh hour (at the close of the case for the Defence but before the addresses) I think I should deal with the purely legal, and in this case academic, aspect of this Defence. I do this not withstanding that I have heard no legal argument on this point except in the opening addresses by Counsel for the Plaintiff and Defendants. But it appears to me that it might not be amiss if I were to give my views.

A good starting point is paragraph 751 of Gatley on Libel and Slander, 7th Edition:

” The rolled-up pleas raises two distinct issues, Viz: (1) the truth of the statements of fact, and (2) the fairness of the comment, and the parties are entitled to have these two issues submitted separately to the jury with a proper and adequate direction.”

And at paragraph 717:

“At the trial it was accordingly incumbent on the Defendant to prove: (1) that each and every statement of fact in the words complained of was true; and (2) that the comment on the facts so proved was bona fide and fair comment on a matter of public interest. On these pleadings, if the Defendant failed to prove the truth of any of the statements of fact, he necessarily failed in his defence.”

On my reading of the article complained of I find as a matter of law that the following are statements of facts:

That drug trafficker Diaz Barrera is connected with the Plaintiff, not only directly but in different special business.

That Diaz Barrera uses in Merida a car with Belize diplomatic licence plates.

That Belize Air Cargo Co. is the property of the Plaintiff.

That the Plaintiff has business in foreign countries.

These facts the Defence must prove before they can be heard to say that the comments on those facts are fair. I find that the particulars given by the Defendants to base their pleas of fair comment were insufficient. The insufficiency was really to their detriment in the sense that they cannot adduce evidence on facts other than those pleaded. On the other hand they have to prove the veracity of all the statement of facts which are apparent on the article regardless of whether they admit or not that they are statement of facts.

As this Defence is no longer relied on there is no need to make any findings.

Directing my mind to the defence of qualified privilege, I would like to refer to Halsbury’s Laws of England Vol. 24 p.54 where the matter is treated thus: —

“On grounds of public policy or the general welfare of society, the law affords protection on certain occasions to persons who, acting in good faith and without indirect or improper motive, make statements about another which are in fact untrue and defamatory. Such occasions are called occasion of qualified privilege.”

And at p.56:–

“An occasion is privileged where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.”

What is this moral duty, which the Defendant say he can rely on? There is no moral duty to repeat falsehoods from abroad. There is no moral duty to pillory a person without justification. There is no moral duty to repeat what a cheap foreign magazine has to say about your Premier. If the defamatory article has been based on, say, a United Nations Journal, a publication from the Organization of American States, a report of standings in a foreign court, or some such similar source, then I can understand the moral duty.

It has been pressed on me that the publication complained of was in the public interest. I must make it quite clear that public interest in the context of qualified privilege means pro bono publico not in the interest of a sector or the public who enjoy reading a person being vilified.

On reading the libel in the PRESENCIA the reaction of the Editor of this newspaper was to reprint part of it without checking its accuracy. My reaction as a very temporary ‘Naturalized’ Belizean (though not necessarily as a judge) might well have been somewhat different. I would be prepared to uphold the right of any of my fellow citizens to criticize my country, to derogate its institutions and to fustigate my representatives whenever an occasion arises. On the other hand, I would deny such right to, and condemn, any interfering outsider or any foreign do-gooder from belittling my country, my institutions and/or my elected leader (whomever he might be). ‘Sassenachs’ should put their own houses in order first.

The Defence whose duty it is to satisfy me that the occasion was privileged has referred me to a quotation by Mr. Justice Pearson in the case of Webb v Publishing Co. Ltd. (1960) 2 Q.B 537 which reads:

“The full liberty of public writers to comment on the conduct and motives of public men has only recently been recognized. Comments on government, on ministers and officers of state, on members of both houses of parliament, on judges and other public functionaries, are now made every day… Yet who can doubt that the public are gainers by the change, and that, though injustice may often be done, and though public men may often smart under the keen sense of wrong infliction by hostile criticism, the nation profits by public opinion being thus freely brought to bear in the discharge of public duties?”

This quotation is dealing with the meaning of public interest and is not to be taken as a carte blanche to libel anyone. In fact the case merely decided that a report of foreign judicial proceedings may in circumstances be privileged. Mr. Justice Pearson would have been astounded to learn that his obiter was going to be put forward to support the proposition that the reproduction of an unconfirmed report in another newspaper can be privileged.

I find that the article complained of was not protected by the defence of qualified privilege. In any case I would say that even if, by any stretch of the imagination, it could be said that there was a moral duty to publish, then I find that the Defence fails as I am satisfied that there is evidence of express malice. I shall deal with the question of damages.

Finally, I come to the question of damages. The Plaintiff is seeking exemplary and/or aggravated damages. For the reasons stated in Price v Lawrence (No. 272 of 1981) I would withdraw the issue of exemplary damages from the jury. In support of aggravated damages, the Plaintiff has given particulars and so has the Defendant in mitigation of damages. I find as a fact that the Defendant has written other derogatory things of the Plaintiff.

I also find that his Defence has been such as to evidence his malice towards the Plaintiff, in trying to prove the unprovable. There not only has been the absence of an apology but on his pleadings he continued to maintain up to very near the end of the case that what he published was true (fair comment). His editorial of the 5th March, 1982 is most damaging to him. So are certain insinuations made in the witness box by the Defendant even although under cross-examination? Similarly, his avowed purpose of having a court hearing.

Further, in mitigation, Counsel for the Defence has brought to the Court’s attention section 9 of the Libel and Defamation Ordinance, which reads:

“At the trial of an action for a libel contained in any newspaper the Defendant shall be at liberty to give in evidence in mitigation of damages that the Plaintiff has already recovered (or has brought action for) damages or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought.”

This section is similar to section 12 of the Defamation Act, 1952. Lord Reid in Lewis v Daily Telegraph (1964) A.C. at p.261 deals with how a jury should arrive at the correct figure. He says:

” They must do the best they can to ensure that the sum which they award will fully compensate the Plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the Plaintiffs which ought to enter into the other jury’s assessment.”

In the case before me the Defence has adduced evidence that in a previous case the Court awarded $5000 damages. There is another Action pending. The sum to be awarded in that other Action may be the same, a lesser sum or a much higher one. Taking all those factors into consideration, what would they award in the present case taking into account that the Plaintiff should not be compensated twice or thrice for the same loss?

In view of the manner in which the Defence has been conducted I am doubtful as to whether the quotation in Gatley on Libel and Slander about the consequence of the Plaintiff not giving evidence is really applicable, in the sense of inhibiting the jury from awarding aggravated damages. Although the Defendant did not invent the original libel he readily adopted it. He has been unable to cast even a shadow of doubt on the integrity of the Plaintiff.

The ordinary and reasonable man or woman would feel quite justified in awarding damages commensurate not only with the libel but also with the manner in which the Defendant has conducted himself. I am satisfied that a properly directed jury would make an award of $10,000, even taking into account the provisions of section 9 of the Libel and Defamation Ordinance.

I am satisfied that in this case an injunction is more that justified in the terms the Plaintiff is seeking, but more specific. An injunction will be granted in the following terms:

“That apart from a fair and accurate report of these proceedings and the result in a single issue of the “Amandala”, the Defendant Evan Hyde does not either by himself, his servants or agents write and/or publish anything in connection with the words complained of or in connection with the article in the magazine or in connection with the present proceedings which either or indirectly refers or reflects on the Plaintiff, until further order.”

I enter judgment for the Plaintiff in the sum of $10,000 together with an injunction in the terms already stated against the first Defendant. First Defendant to pay the costs.

I dismiss the Action against the second Defendant with costs, payable by the Plaintiff.

In the course of these proceedings my attention was called to the taking of notes of evidence. I want to clarify this point for the future. Judge’s notes of evidence are as comprehensive and extensive as possible, but they are not a verbatim record of either questions and answers or of all answers. Sometimes the same question is answered more than once; sometimes a previous answer is conclusive on a point. Counsel has to rely on a judge who through experience knows what should not be left out. If the parties require a full transcript of all the evidence then arrangements should be made for the attendance of shorthand writers. What Counsel wanted me to take down had already been recorded in a generic form and it was unnecessary to record it in detail. I however acceded to his request, as he gave an indication about the possibility of an appeal in this case.

This brings me to another point. I want to make it clear that a notice of appeal does not suspend the injunction ordered in this case.

 

Civil Judgments 2012

• Supreme Court Claim No 213 of 2011 – In the Matter of Section 17(1)(a) fo the Time Share Act, Laws of Belize v In the Matter of the recognition and enforcement of rights of timeshare members
• 0Supreme Court Action No 3 of 2008 – Douglas Lenartz v Ramona E Lenartz
• Supreme Court Claim No 4 of 2011 – Franco Nasi v David M Richards
• Supreme Court Claim No 8 0f 2012 – Nathan Funk v Julian Patt
• Supreme Court Claim No 14 of 2011 – David Madrid v Belize Sugar Cane Farmers Association
• Supreme Court Action 23 of 2011 – Joaquin Riverol v Maria Elena Riverol, Alberto Hamilton
• Supreme Court Claim No 31 of 2011 – Michelle Card v Gerald Alexander Rhaburn
• Supreme Court Claim No 51 of 2011 – Antonio Guerra v Rudolpho Urbina, Ernesto Urbina and Supreme Court Claim No 280 of 2011 – Antonio Guerra v Rudolpho Urbina, Ernesto Urbina, Atlantic Bank Limited
• Supreme Court Action No 80 of 2003 – Roberta Richmond, Charles MacKinnon, Sandra MacKinnon v Belize Aquaculture Limited
• Supreme Court Claim No 176 of 2011 – Clarita Pech v The Attorney General of Belize, Customs and Excise Department
• Supreme Court Claim No 176 of 2012 – Yolanda Schakron, Whylma White Munnings v Mark King, Noreen Fairweather, The Attorney General of Belize
• Supreme Court Claim No 189 of 2012 – Martin Galvez v Mark King and Noreen Fairweather
• Supreme Cout Claim No 109 of 2012 – Yolanda Schakron, Moses Sulph v Noreen Fairweather, The Attorney General of Belize
• Supreme Court Claim No 201 of 2012 – Orlando Habet v Elvin Penner, Jose Castellanos, et al
• Supreme Court Claim No 202 of 2010 – Development Finance Corporation v Cahal Pech Limited, Rene Villanueva Sr, Rene Villanueva Jr
• Supreme Court Claim No 213 of 2011 – Lincoln Cane Ventures LLC, et al v British Caribbean Bank International Limited, Mark Hulse ( In his capacity as receiver of Sueno Del Mar Limited)
• Supreme Court Claim No 220 of 2011 – Dwight Montero, William Bowman II, San Miguel Ltd., et al v Citrus Growers Association
• Supreme Court Claim No 261 of 2011 – Lorna Bainton v The Attorney General, Commissioner of Police
• Supreme Court Claim No 266 of 2011 -Kent Santos, Travis Santos, Frederick Garbutt v David Penner
• Supreme Court Claim No 283 of 2011 – Luis Gonzalez v Director General of Statistical Institute of Belize, Statistical Institute of Belize, The Attorney General of Belize
• Supreme Court Claim No 294 of 2011 – Suzette Peyrefitte v Ian Skeen
• Supreme Court Claim No 313 of 2011 – Vincent Rose, Cherie Chenot Rose (jointly d.b.a ACES) v Minister of Finance, The Attorney General
• Supreme Court Claim No 386 of 2011 – Nina Somkhishvili v Nigg, Christopher and Partner, Yosif Shalolashvili, Palo Company Ltd
• Supreme Court Claim No 388 of 2012 – Karol Mello v The Commissioner of Police, Supreintendent of Prison
• Supreme Court Claim No 404 of 2007 – Ports of Belize Limited, Belize Ports Limited v Attorney General of Belize
• Supreme Court Claim No 433 of 2010- Belize Bank Limited, BCB Holdings v Central Bank of Belize, Attorney General
• Supreme Court Claim No 472 of 2010 – Dean Boyce v The Attorney General of Belize
• Supreme Court Claim No 668 of 2010 – In the Matter of the Constitution of Belize between Caleb Orosco, United Belize Advocacy Movement v The Attorney General of Belize and the Commonwealth Lawyers Association et al
• Supreme Court Claim No 516 of 2011 – Brititsh Caribbean Bank International Limited v Central Bank of Belize
• Supreme Court Claim No 537 of 2009 – Rhenae Nunez v Andrew Munnings, Santiago Castillo Ltd
• Supreme Court Claim No 555 of 2008 – Atiliana Duran v The Attorney General Of Belize
• Supreme Court Claim No 597 of 2011 – The British Caribbean Bank Limite v The Attorney General Of Belize, Minister of Public Utilities
• Supreme Court Claim No 625 of 2009 – John Terry, Samuel M Cook, t/a Specialty Woods Inc. v Lea’s Furniture Co. Ltd, et al
• Supreme Court Claim No 711 of 2008 – David Connelly, Frances Brown v Julio Iglesias, Vega’s Distributors Ltd.
• Supreme Court Claim No 712 of 2010 – Progresso Heights Limited v Wilfred P Elrington, Pitss and Elrington
• Supreme Court Claim No 727 of 2010 – Florencia Rodriguez v Belize Water Services Limited
• Supreme Court Claim No 733 of 2010 – Blue Sky Belize v Belize Aquaculture Limited
• Supreme Court Claim No 734 of 2011 – Atlantic Bank Limited v Larry Feger, Joan Feger, Sunset Manor Limited
• Supreme Court Claim No 773 of 2010 – Haven House v Thadeus Leslie
• Supreme Court Claim No 842 of 2010 – Andrea Lord v Belize Advisory Council
• Supreme Court Claim No 873 of 2010 – Marshall’s Company, Kinea International S. A.v Karina Enterprise, Mike Hotchandani, et aland
• Supreme Court Claim No 896 of 2010 – China Tobaco Zhejiang Industrial Co Ltd., Kinea International S.A., Et al v Karina Enterprises Limited, The Attorney General of Belize

(MARILYN TATUM PLAINTIFF
BETWEEN (
(AND
(
(BELIZE AIRWAYS LTD. DEFENDANT
Supreme Court
Action No. 15 of 1978
28th, September, 1978
Sir Denis Malone, CJ.

Mr. Dean Barrow for the Plaintiff
Senator S.W. Musa for the Defendant

Contract of Employment – Repudiation – Earnings, loss of – Duty to mitigate loss – Damages – Quantum of.

J U D G M E N T

The claim is for wrongful repudiation of a contract. Liability was not admitted by the Defendant company, to which I shall refer hereafter as “B.A.L.”, but that there was a contract which it repudiated is not to my mind open to question, for the facts on that aspect of the case are the following. The Plaintiff, aspiring to be a flight attendant, which is B.A.L.’s description of an air hostess, applied to B.A.L., and was interviewed by B.A.L.’s Chief Stewardess, Miss Hurst, and was in December, 1977, both verbally and in writing accepted by B.A.L. The Plaintiff was and is a national of the Republic of Honduras. B.A.L. was at the time recruiting only Belizeans – a term which is not easily defined with precision but which does not include non-British nationals. It may be as the Plaintiff says, that at her interview with Miss Hurst she informed the latter of her national status. Whether she did so or not is not however of importance as I am satisfied that she was under no obligation to do so. What is clear is that she did not, at any time, conceal her true national status, nor did B.A.L. at any time before accepting her, disclose to her that it was only recruiting Belizeans. For I do not accept the suggestion that because the Plaintiff handed over her passport to B.A.L. a few days before she was due to leave Belize for Miami with the other recruits, that showed she was concealing her nationality nor the suggestion that because B.A.L. advertised for recruits in Belizean newspapers, that showed that B.A.L was only recruiting Belizeans. When the Plaintiff’s true national status first came to the attention of Mr. Shoman, the Manager of B.A.L. in Belize, he discussed with her the problem it created. It is agreed that he suggested to her two courses of possible conduct to overcome the problem. Failing which B.A.L., he said, could not employ the Plaintiff. One was to become a British subject. The other was to defer her training until B.A.L. began to recruit Honduras, and that Mr. Shoman explained would take place about June. Mr. Showman implied to the Court that had the Plaintiff deferred her training, B.A.L. could have recruited her as a Honduran. It is however not clear from his evidence that he in fact assured the Plaintiff that B.A.L. would employ her as a Honduran and the evidence of the Plaintiff, which I accept, is that he did not give that assurance.

An attempt was made by the Plaintiff to change her nationality, but if even the British authorities had been wiling to accept her, the necessary formalities could not have been completed in the time available. The Plaintiff declined to accept the alternative. It may be that given more time B.A.L. might have been able to persuade the authorities concerned with civil aviation to permit it to make an exception of the Plaintiff. There is, however, no evidence that B.A.L. in fact contemplated an approach to the authorities for that purpose, nor of course is it known if such an approach would have been successful. In the result, the Plaintiff did not go to Miami and was not employed by B.A.L. She in fact joined the ranks of the unemployed as in anticipation of being employed by B.A.L., she resigned a well paid job. I turn then to consider the issue of damages. In doing so, I would say at outset that I cannot accept the submission of Counsel for B.A.L. that the Plaintiff is deserving only of nominal damages on the ground that the repudiation was a technical breach. For even if the repudiation was such, and I do not think it was, as I think it was the casual way in which B.A.L. conducted its business that caused the repudiation of the contract, that would not necessarily result in the damages being merely nominal.

To arrive at the damages, it is necessary in the first place to determine what was the nature of the contract in this case. The evidence of the Plaintiff is that a few days after her interview with Miss Hurst, she was informed verbally by Miss Alamilla, the Secretary of B.A.L. that she had been chosen as a trainee flight attendant. That information was confirmed in writing when on the 20th December, 1977, Mr. Shoman wrote to her in the following terms:

“It is my pleasure to inform you that you have been selected for training as a Flight Attendant with Belize Airways Limited.

Training will commence in Miami, Fla., on Monday, January 9, 1978.

Mr. Shoman then sets out in his letter the terms and conditions upon which B.A.L. accepted the Plaintiff as a trainee. The terms and conditions include free accommodation and free transportation between the place of accommodation for the trainee provided by B.A.L. and the training facility, a salary of $200.00 U.S. per month and a per diem allowance of $12.00 U.S. to cover the cost of meals and other incidentals. Nothing is said in this letter with regard to the length of the training period, but the undisputed evidence is that it was to last for a period of six to eight weeks and was to be followed by a probationary period of three months. Nothing also is directly said in this letter with regard to the terms and conditions of the probationary period. The third paragraph informs the trainee flight attendant that:

“At the termination of your training, you will be required to live in Miami………………..’

and that the cost of finding accommodation and transportation will be at her expense. Then in fourth paragraph Mr. Shoman writes:

“Once you have completed training and your probationary period, you will commence to get a salary assigned to new Flight Attendants, which is presently $600.00 U.S. per month.”

If the probationary period is not regarded as included in the training period, then it is not known what salary and perquisites were to be paid by B.A.L. during the probationary period. It therefore seems to me that the word “training” in the third paragraph of the letter is to be read as including both the training period of six to eight weeks and the following probationary period of three months.

It is submitted by Counsel for the Plaintiff that this was a contract of service whereby the Plaintiff was to be employed at least for the training and probationary periods. On the other hand, Counsel for B.A.L. submits that it was a contract of apprenticeship limited in duration to the training period of six to eight weeks. In my view, for the reasons I gave earlier regarding the interpretation of “training” in the third paragraph of Mr. Shoman’s letter, if it is was a contract of apprenticeship, it cannot have been limited to the training period of six to eight weeks, but must also have included the probationary period of three months. I do not ,however, consider that this was a contract of apprenticeship. It would seem to me that this was essentially a contract to employ the Plaintiff as a flight attendant and that the training and probationary periods were incidental to it. B.A.L., as I see it, was recruiting the Plaintiff with the object of training her to become one of its flight attendants. The Plaintiff was not, as it were, a person who attends a place of training to learn a job and who after training goes on to the labour market in search of the job. The Plaintiff was assured of a job as a flight attendant with B.A.L. on completion of the training and probationary periods. Of course either B.A.L or the Plaintiff might by appropriate notice have terminated the contract after the training and probationary periods and if in the course of training or during the probationary period the Plaintiff had proved unsatisfactory, then for good reason, B.A.L could have ended the contract. From the practical point of view, however, I think it likely that B.A.L would have been slow to take such action as it stood to lose much, namely the loss of the investment it had made in the Plaintiff. I venture to think that the reason for Miss Hurst interviewing each recruit was to ensure as far as possible that the recruit was of suitable material and so minimize the risk of B.A.L. losing the money it would invest in the recruit.

The object of an award of damages where there has been a repudiation of a contract is to put a Plaintiff into the position he would have been in had the contract not been broken. In other words, to adopt the language of the learned author of McGregor on Damages, 13th Ed. (10) at p. 10, the general rule is that:

“the Plaintiff is entitled to be placed in so far as money can do it, in the same position as he would have been in had the contract been performed.”

Accordingly, where there has been a repudiation of a contract, a Plaintiff is not entitled on the principle of restitutio in integrum to compensation that would put him back in the position in which he was before the contract was made. On that ground, I therefore reject the submission of Counsel for the Plaintiff that the damages should take account of the fact that she resigned the job she had as a secretary of the Shell Oil Co., before being accepted by B.A.L. or that they would take into account her allegations that she incurred expense in purchasing suitable clothing to take with her to Miami and suffered loss by surrendering her apartment and disposing of her car and items of furniture. The amount of the award that may be made under the general rule, that I have cited, can be affected by the consideration that a Plaintiff has failed to mitigate the loss. In this case the Plaintiff, in my view, was under an obligation to do so. The evidence however is that she tried to get back her job as a secretary with Shell Oil Co. but it had been filled. She applied for a job with Texaco Oil Co. She applied for a job as an air hostess with TAN and went to Honduras hoping to secure a similar job with LANSA. The only offer of employment she has had is a clerical post at a salary of $50.00 – $60.00 per week. When it is considered that as a secretary of the Shell Oil Co., her salary was $554 per month plus overtime, it is not surprising that she turned down that offer. Indeed, she would in law be entitled to do so without being in breach of her obligation to mitigate her damages for as Buckley J., said in Edwards v. Society of Graphical and Allied Trades (1970) I W.L.R. 379, at page 386:

“The authorities I think establish that where someone has lost employment as a result of breach of contract or tort on the part of another, and is under an obligation to mitigate his damages, he will only be required to mitigate his damage by accepting other employment if that employment is of a kind which he can reasonably be expected to accept, having regard to his standing, his experience and his personal history.”

In my view, the Plaintiff is not in breach of her obligation to mitigate the loss occasioned her by the repudiation of the contract by B.A.L

What then should B.A.L pay her by way of compensation? In cases of this description where the party wronged retains all the attributes that secured him the contract in the first instance and no circumstance had been mentioned to suggest that he may not in the foreseeable future secure another like contract, the difficulty is to determine to what point the right to damages extends. This case is not, to my mind, a case on all fours with the case of Edwards v. Society of Graphical and Allied Trades (ibid) as in that case the evidence was that there was no foreseeable likelihood of the Plaintiff obtaining employment in the grade of work from which he had been dismissed. That is not the evidence in this case. There is no evidence to suggest that the Plaintiff cannot be a flight attendant in the foreseeable future. Accordingly, unlike that case, this is not a case to which by analogy may be applied the principles applicable in cases of personal injuries, where the victim is unable after the tort to do the work at which he was employed or where his competitive position on the labour market is affected.

What I must do, I think, is to assume that the Plaintiff would have completed successfully the training and probationary periods so that upon their completion she would have been a permanent flight attendant. After becoming that, the contract could not properly have been determined by B.A.L. without giving a month’s notice or paying a month’s salary of $600.00 U.S. in lieu of notice. I do not think it rash to make that assumption, for as I have said, the purpose of the interview by Miss Hurst was to ensure the selection of recruits who could reasonably be expected to complete successfully the training and probationary periods. Upon that basis, I find that to put the Plaintiff in the position in which she would have been had the contract not been repudiated, she is entitled in damages to the remuneration, she would have received during the training and probationary periods and to two months’ salary as a permanent flight attendant. For it seems to me, having regard to the fourth paragraph of Mr. Shoman’s letter, that permanent status as a flight attendant was to follow immediately on the ending of the probationary period so that the Plaintiff would be assured of at least one month’s employment before notice of termination. In granting to her the remuneration she would have received during the training and probationary periods, I might say that I decline to accept the submission of Counsel for B.A.L. that because the Plaintiff was not in Miami she should not be entitled to the $12.00 U.S. per diem allowance. To my mind, her absence from Miami – which was entirely due to the B.A.L.’s repudiation of the contract – is not a relevant consideration and to accept that submission would, I think, occasion hardship to the Plaintiff when account is taken of the fact that had B.A.L. not repudiated the contract, the Plaintiff would have enjoyed five months free accommodation in Miami. Accordingly, I find the damages to be $4,000.00 U.S. I order that the damages be paid in the currency of the United States of America as although the contract was made here, it was to have taken effect in the United States of America and all payments were to have been made in the currency of that country. I further order that interest at the rate of 6% be paid on the sum awarded as damages on and from the 9th of January, 1978, down to the date of judgment.

 

PART VIII

The Public Service

105.-(l) There shall be for Belize a Public Services Commission which shall consist of a Chairman and eighteen other members who shall include as ex- officio members the Chief Justice, the Solicitor General, the Permanent Secretary, Establishment, the Permanent Secretary to the Ministry of Home Affairs, the Permanent Secretary to the Ministry of Defence, the Permanent Secretary to the Ministry for the time being responsible for the Prison Service, the Superintendent of Prisons, the Commissioner of Police, the Director, Security and Intelligence Service and the Commandant of the Belize Defence Force.

(2) The Chairman and other members of the Commission, other than the ex officio members, shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister given after consultation with the Leader of the Opposition.

(3) No person shall be qualified to be appointed as a member of the Commission if he is a member of the National Assembly or, save in respect of the ex officio members, if he holds or is acting in any public office.

(4) Save in respect of the ex officio members, a person shall not, while he holds or is acting in the office of a member of the Commission or within a period of two years commencing from the date on which he last held or acted in that office, be eligible for appointment to any public office.

(5) Subject to the provisions of this section, the office of a member of the Commission shall become vacant-

(a) at the expiration of three years from the date of his appoint- ment or such earlier time, being not less than two years, as may be specified in the instrument by which he was appointed; or

(b) if any circumstances arise that, if he were not a member of the Commission, would cause him to be disqualified for appoint- ment as such.

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

(7) A member of the Commission shall be removed from office by the Governor-General if the question of the removal of that member 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 member ought to be removed from office for inability as aforesaid or for misbehaviour.

(8) If the Prime Minister represents to the Governor-General that the question of removing a member of the Commission under this section ought to be investigated, then-

(a) the Governor-General shall refer the matter to the Belize Ad- visory Council which shall sit as a tribunal in the manner pro- vided in section 54 of this Constitution; and

(b) the Belize Advisory Council shall enquire into the matter and report on the facts thereof to the Governor-General and ad- vise the Governor-General whether that member of the Commission should be removed under this section.

(9) If the question of removing a member of the Commission from office has been referred to the Belize Advisory Council under the preceding subsection, the Governor-General may suspend the member 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 member should not be removed from office.

(10) If the office of a member of the Commission is vacant or a member is for any reason unable to perform the functions of his office, the Governor-General may appoint a person who is qualified for appointment as a member of the Commission to act as a member of the Commission, and any person so appointed shall, subject to the provisions of subsections (6), (7), (8) and (9) of this section, continue to act until he is notified by the Governor-General that the circumstances giving rise to the appointment have ceased to exist.

(11) In the exercise of its functions the Commission shall be so
organised that of the eighteen members other than the Chairman:-

(a) five, of whom the Permanent Secretary, Establishment shall be an ex-officio member, shall be responsible for matters relating to the public service other than the judicial and legal services, the Police Department, the Security and Intelligence Service, the National Fire Service, the Prison Service and the military service;

(b) two, being ex-officio the Chief Justice and the Solicitor Gen- eral, shall be responsible for matters relating to the judicial and legal services;

(c) four, of whom the Permanent Secretary to the Ministry of Defence and the Commandant of the Belize Defence Force shall be ex-officio members, shall be responsible for matters relating to the military service; and

(d) three, of whom the Permanent Secretary to the Ministry of Home Affairs and the Commissioner of Police shall be ex-
officio members, shall be responsible for matters relating to the Police Force and the National Fire Service; and

(e) three, of whom the Permanent Secretary to the Ministry of Home Affairs and the Director, Security and Intelligence Ser- vice shall be ex-officio members, shall be responsible for matters relating to the Security and Intelligence Service;

(f) two, being ex-officio the Permanent Secretary to the Minis- try for the time being responsible for the Prison Service and the Superintendent of Prisons, shall be responsible for mat- ters relating to the Prison Service;

and in considering the matters referred to, the Commission shall comprise the members responsible for that matter and the Chairman.

(12) A member of the Commission shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and office.

(13) The Commission shall, in the exercise of its functions under this Constitution, not be subject to the direction or control of any other person or authority.

(14) The Commission may by regulation make provision for regulating and facilitating the performance of its functions under this Constitution.

(15) Subject to the provisions of this section, the Commission may regulate its own procedure.

(16) Any decision of the Commission shall require the concurrence of a majority of all the members thereof and, subject to its rules of procedure, the Commission may act notwithstanding the absence of any member other than the Chairman:

Provided that, in the exercise of its responsibilities for any matter referred to in subsection (11) of this section, any decision of the Commission shall require the concurrence of a majority of those persons comprising the Commission for the purposes of that matter.

Provided further that in any matter before the Commission or any section thereof, where the votes are equally divided, the Chairman shall have a casting vote in addition to his original vote.

 

(17) In subsection (11) of this section-

“judicial and legal services” means service in the offices of Registrar General, Deputy Registrar General, Registrar, Deputy Registrar and Assistant Registrar of the Supreme Court, Registrar and Deputy Registrar of the Court of Appeal, Chief Magistrate, Magistrate, Legal Draftsman, Law Revision Counsel, Crown Counsel, Legal Assistant and such other public offices requiring a legal qualification as the Attorney-General may from time to time, by order published in the Gazette, prescribe;

“military service” means service in the Belize Defence Force or in any other military, naval or air force established for Belize.

106.-(1) The power to appoint persons to hold or act in offices in the public service (including the power to transfer or confirm appointments), and, subject to the provisions of section 111 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Services Commission constituted for each case as prescribed in section 105(11) of this Constitution.

(2) In subsection (1) of this section, “public service” includes the military service, as defined in section 105(17) of this Constitution.

(3) Subject to the provisions of this Constitution, the Governor-General, acting in accordance with the advice of the Minister or Ministers responsible for the public service given after consultation with the recognised representatives of the employees or other persons or groups within the public service as may be considered appropriate, may make regulations on any matter relating to-

(a) the formulation of schemes for recruitment to the public service;

(b) the determination of a code of conduct for public officers;

(c) the fixing of salaries and privileges;

(d) the principles governing the promotion and transfer of public officers;

(e) measures to ensure discipline, and to govern the dismissal and retirement of public officers, including the procedures to be followed;

(f) the procedure for delegation of authority by and to public officers; and

(g) generally for the management and control of the public service.

(4) The Public Services Commission shall, in the exercise of its functions under this section, be governed by regulations made under subsection (3) of this section.

(5) The Public Services Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under subsection (1) of this section to any one or more members of the Commission or, with the consent of the Prime Minister, to any public officer.

(6) The provisions of subsection (1) of this section shall not apply in relation to the following offices, that is to say-

(a) any office to which section 107 of this Constitution applies;

(b) the offices of justice of the Supreme Court and Justice of Appeal;

(c) the office of Auditor-General;

(d) the office of Director of Public Prosecutions; or

(e) any office to which section 110 or section 110A or section 110B of this Constitution applies.

(7) No person shall be appointed under this section to or to act in any office on the Governor-General’s personal staff except with the con-currence of the Governor-General, acting in his own deliberate judgment.

(8) A public officer shall not be removed from office or subjected to any other punishment under this section on the grounds of any act done or omitted by him in the exercise of a judicial function conferred on him unless the Judicial and Legal Services section of the Public Services Commission concurs therein.

107.-(l) This section applies to the offices of Financial Secretary, Deputy Financial Secretary, Secretary to the Cabinet, Solicitor General, Permanent Secretary, head of a department of Government, Commissioner of Police, Director, Security and Intelligence Service, Commandant, Belize Defence Force, Ambassador, High Commissioner or principal representative of Belize in any other country or accredited to any international organisation and, subject to the provisions of this Constitution, any other office designated by the Governor-General, acting in accordance with the advice of the Prime Minister given after consultation with the Public Services Commission.

(2) The power to appoint persons to hold or to act in offices to which this section applies (including the power to transfer or to confirm appointments) and, subject to the provisions of section 111 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Governor-General, acting in accordance with the advice of the Prime Minister.

(3) References in this section to a department of Government shall not include the office of the Governor-General, the department of the Director of Public Prosecutions or the department of the Auditor General.

108.-(1) The Director of Public Prosecutions shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Services Section of the Public Services Commission and with the concurrence of the Prime Minister given after consultation with the Leader of the Opposition.

(2) A person shall not be qualified for appointment to hold or act in the office of Director of Public Prosecutions unless he is qualified to be appointed as a justice of the Supreme Court.

(3) If the office of Director of Public Prosecutions is vacant or if the holder of that office is for any reason unable to exercise the functions of his office, the Governor-General, acting in accordance with the advice of the Judicial and Legal Services Section of the Public Services Commission and with the concurrence of the Prime Minister given after consultation with the Leader of the Opposition, may appoint a person to act as Director.

(4) A person appointed to act in the office of Director of Public Prosecutions shall, subject to the provisions of subsections (5), (7), (8) and (9) of this section, cease so to act-

(a) when a person is appointed to hold that office and has assumed the functions thereof or, as the case may be, when
the person in whose place he is acting resumes the functions of that office; or

(b) at such earlier time as may be prescribed by the terms of his appointment.

(5) Subject to the provisions of subsection (6) of this section, the Director of Public Prosecutions shall vacate his office when he attains the age of sixty years or such other age as may be prescribed by the National Assembly:

Provided that any law enacted by the National Assembly, to the extent to which it alters the prescribed age after a person has been appointed to be or to act as Director of Public Prosecutions, shall not have effect in relation to that person unless he consents that it should have effect.

(6) The Director of Public Prosecutions may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.

(7) The Director of Public Prosecutions shall be removed from office by the Governor-General if the question of his removal 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 he ought to be removed from office for inability as aforesaid or for misbehaviour.

(8) If the Prime Minister represents to the Governor-General that the question of removing the Director of Public Prosecutions under this section ought to be investigated, then-

(a) 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

(b) 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 he should be re- moved under this section.

(9) If the question of removing the Director of Public Prosecutions from office has been referred to the Belize Advisory Council under the preceding subsection, the Governor-General may suspend him 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 he should not be removed from office.

109.-(1) The Auditor-General shall be appointed by the Governor- General, acting in accordance with the advice of the Public Services Commission and with the concurrence of the Prime Minister given after consultation with the Leader of the Opposition.

(2) If the office of Auditor-General is vacant or if the holder of that office is for any reason unable to exercise the functions of his office, the Governor-General, acting in accordance with the advice of the Public Services Commission and with the concurrence of the Prime Minister given after consultation with the Leader of the Opposition, may appoint a person to act as Auditor-General.
(3) A person appointed to act in the office of Auditor-General shall, subject to the provisions of subsections (4), (6), (7) and (8) of this section, cease so to act-

(a) after a person is appointed to hold that office and has as- sumed the functions thereof or, as the case may be, when the person in whose place he is acting resumes the functions of
that office; or

(b) at such earlier time as may be prescribed by the terms of his appointment.

(4) Subject to the provisions of subsection (5) of this section, the Auditor-General shall vacate his office when he attains the age of sixty years or such other age as may be prescribed by the National Assembly:

Provided that any law enacted by the National Assembly, to the extent to which it alters the prescribed age after a person has been appointed to be or to act as Auditor-General, shall not have effect in relation to that person unless he consents that it should have effect.

(5) The Auditor-General may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.

(6) The Auditor-General shall be removed from office by the Governor-General if the question of his removal 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 he ought to be removed from office for inability as aforesaid or for misbehaviour.

(7) If the Prime Minister represents to the Governor-General that the question of removing the Auditor-General under this section ought to be investigated, then-

(a) 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

(b) 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 he should be re- moved under this section.

(8) If the question of removing the Auditor-General from office has been referred to the Belize Advisory Council under the preceding subsection, the Governor-General may suspend him 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 he should not be removed from office.

110.-(1) Power to appoint persons to hold or act in any office in the Police Department (including power to confirm appointments) below the rank of Inspector and to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Commissioner of Police.

(2) The Commissioner of Police may, subject to such conditions as he thinks fit, delegate any of his powers under this section, by directions in writing, to any other officer of the Police Department.

110A.-(1) The power to appoint persons to hold or act in any office in the Security and Intelligence Service (including power to confirm appointments) to the rank of Grade III of that Service or below and to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Director of the Service subject to the approval of the Minister for the time being responsible for the Service.

(2) The Director, Security and Intelligence Service may, subject to such conditions as he thinks fit, delegate any of his powers under this section, by directions in writing, to any senior officer of the Service.

110B-(1) The power to appoint persons to hold or act in any office in the Prison Service (including power to confirm appointments) below the rank of Principal Officer, and to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office, shall vest in the Superintendent of Prisons.

(2) The Superintendent of Prisons may, subject to such conditions as he thinks fit, delegate any of his powers under this section, by directions in writing, to any other senior officer of the Prison Service.

111.-(1)This section applies to-

(a) any decision of the Governor-General, acting in accordance with the advice of the Prime Minister or the Public Services Commission as the case may be, in relation to the public service, or any decision of the Public Services Commission to remove a public officer from office or to exercise disci- plinary control over a public officer (including a decision made on appeal from or confirming a decision of any person to whom powers are delegated under section 106(5) of this Constitution);

(b) any decision of any person to whom powers are delegated under section 106(5) of this Constitution to remove a public officer from office or to exercise disciplinary control over a public officer (not being a decision which is subject to appeal to or confirmation by the Public Services Commission); and

(c) if it is so provided by the National Assembly, any decision of the Commissioner of Police under subsection (1) of section 110 of this Constitution, or of a person to whom powers are delegated under subsection (2) of that section, to remove a police officer from office or to exercise disciplinary control over a police officer;

(d) if it is so provided by the National Assembly, any decision of the Superintendent of Prisons under subsection (1) of section 110B of this Constitution, or of a person to whom powers are delegated under subsection (2) of that section, to remove an officer in the Prison Service from office or to exercise disci- plinary control over such officer.

(2) Subject to the provisions of this section, an appeal shall lie to the Belize Advisory Council from any decision to which this section applies at the instance of the public officer in respect of whom the decision is made:

Provided that in the case of any such decision as is referred to in subsection (1)(c) of this section, an appeal shall lie in the first instance to the Commissioner of Police if it is so provided by the National Assembly or, if it is not so provided, if the Commissioner so requires.

(3) Upon an appeal under this section the Belize Advisory Council may affirm or set aside the decision appealed against or may make any other decision which the authority or person from whom the appeal lies could have made.

(4) Subject to the provisions of section 54 of this Constitution, the Belize Advisory Council may by regulation make provision for-

(a) the procedure in appeals under this section; or

(b) excepting from the provisions of subsection (2) of this section decisions in respect of public officers holding offices whose emoluments do not exceed such sum as may be prescribed by the regulations or such decisions to exercise disciplinary control, other than decisions to remove from office, as may be prescribed.

(5) Regulations made under this section may, with the consent of the Prime Minister, confer powers or impose duties on any public officer or any authority of the Government for the purpose of the exercise of the functions of the Belize Advisory Council.

(6) In this section, “public officer” includes any person holding or acting in an office in the military service as defined in section 105(17) of this Constitution.

112.-(l) The law to be applied with respect to any pensions benefits that were granted to any person before Independence Day shall be the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to that person.

(2) The law to be applied with respect to any pensions benefits (not being benefits to which subsection (1) of this section applies) shall-

(a) in so far as those benefits are wholly in respect of a period of service as a public officer that commenced before Indepen- dence Day, be the law that was in force immediately before that date; and

(b) in so far as those benefits are wholly or partly in respect of a period of service as a public officer that commenced after Independence Day, be the law in force on the date on which that period of service commenced, or any law in force at a later date not less favourable to that person.

(3) Where a person is entitled to exercise an option as to which of two or more laws shall apply in his case, the law for which he opts shall, for the purposes of this section, be deemed to be more favourable to him than the other law or laws.

(4) All pensions benefits shall (except to the extent to which, in the case of benefits under the Widows’ and Orphans’ Pensions Act or under any law amending or replacing that Act, they are a charge on a fund established by that Act or by any such law and have been duly paid out of that fund to the person or authority to whom payment is due) be a charge on the general revenues of Belize.

(5) In this section, “pensions benefits” means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers or for the widows, children, dependents or personal representatives of such persons in respect of such service.

(6) References in this section to the law with respect to pensions benefits include (without prejudice to their generality) references to the law regulating the circumstances in which such benefits may be granted or in which the grant of such benefits may be refused, the law regulating the circumstances in which any such benefits that have been granted may be withheld, reduced in amount or suspended and the law regulating the amount of any such benefits.

113.-(1) The power to grant any award under any pensions law for the time being in force in Belize (other than an award to which, under that law, the person to whom it is payable is entitled as of right) and, in accordance with any provisions in that behalf contained in any such law, to withhold, reduce in amount or suspend any award payable under any such law, shall vest in the Governor-General.

(2) The power vested in the Governor-General by the preceding subsection shall be exercised by him-

(a) in the case of officers to whom section 107 of this Constitution applies, acting in accordance with the advice of the Prime Minister;

(b) in the case of all other officers, acting in accordance with the advice of the Public Services Commission.

(3) In this section, “pensions law” means any law relating to the grant to any person, or to the widow, children, dependents or personal representatives of that person, of an award in respect of the services of that person
in a public office, and includes any instrument made under any such law.

(CARL SMITH
(NORMA SUTHERLAND
(LORNA PANTON
(FERNANDO PALACIO
( PLAINTIFFS
BETWEEN (AND
(
(THE ATTORNEY GENERAL DEFENDANT

Supreme Court
Action No. 389 of 1982
7th April, 1983
Moe, CJ.

Mr. Michael Young for the Plaintiffs.
Mr. George Brown, Solicitor General, for the Defendant.

Public Officer – Constitution – Whether posting is transfer – Whether transfer properly effected by Chief Education Officer – Jurisdiction of Public Service Commission – Transfer held to be unconstitutional.

J U D G M E N T

The four Plaintiffs are public officers. They were appointed as follows: the first to the post of Assistant Lecturer (Psychology or General Science) at the Belize Teachers’ College; the second to the post of Assistant Lecturer (Home Economics and Educational Psychology) at the Belize Teachers’ College; the third to the post of Temporary Lecturer (Educational Psychology) at the Belize Teachers’ College, and the fourth to the post of Lecturer (English) at the Belize Teachers’ College. Each of them received a letter dated the 24th August, 1982 under the hand of the Acting Chief Education Officer.

The important portions of the relevant letters sufficient to be set out for this purpose are as follows:- That to the first Plaintiff stated, inter alia, “This is to inform you that with the re-structuring of the Belize Teachers’ College and the re-organisation of the courses there it has not been found possible to assign you subjects other than science and provisions have already been made for the teaching of that subject. You will therefore be posted at the Belize Junior Secondary School No. 2 where I am sure your teaching competence will be much better utilised. The effective date of your posting is 30th August, 1982. That to the second stated, inter alia, “I am to inform you that effective from the 30th August, 1982 you will be posted at the Belize Junior Secondary School No. 2. This posting is a consequence of the re-structuring of the Belize Teachers’ College and the re-organisation of its courses.” To the third, “I am to inform you that effective from 30th August, 1982 you will be posted to teach at the Belize Junior Secondary School No. 1. This posting is a consequence of the re-structuring of the Belize Teacher’s College and the re-organisation of the courses at that institution.” To the fourth, “As you are aware, the Belize Teachers’ College is being re-structured and its courses are being re-organised. Consequently it has been found necessary to second you to the Belmopan Comprehensive School.” The fourth received a further letter dated 13th September, 1982 asking that the word “post” be read in place of the word “second”.

Each Plaintiff now claims that he or she was transferred from one post by virtue of the letter dated the 24th August, 1982 without his or her consent and seeks a declaration that such a transfer is unconstitutional and void. The Defendant says that there was no transfer from the respective posts as claimed, but that each Plaintiff was posted to an institution under the direction and control of the Ministry of Education. He seeks a declaration that the posting was constitutional and valid.

The issues raised in this Action are of great public importance. They highlight a matter to which I adverted in an address to the Court on 19th January, 1982; namely, the need for a clear understanding of the new constitutional status and faithful counselling in the situation. The first issue for determination is whether there was a transfer. The Solicitor General in support of the contention that there was “posting” relied on the following: – (a) the use of the word “posted” in the letters concerned. Such use he argues is deliberate and intended to mean that it is a situation which is not permanent; (b) the institutions involved are all sections within one department, the Department of Education. In such a situation the head of department can assign officers to perform suitable duties; and (c) there was an assignment of suitable duties as provided for by the General Orders for the Public Service Regulations in Chapter 10 paragraph 3 thereof which reads as follows:-

“Officers are required to discharge the usual duties of the office to which they are appointed and any other suitable duties which the Permanent Secretary or Head of Department may call upon them to perform.”

Mr. Young for the Plaintiffs contended that it is an exercise in semantics to draw a difference between the words “post” and “transfer”. That there is no special magic in either word. The Court has to look at the facts and situation before it.

It is clearly the duty of the Court to determine what in fact transpired irrespective of the name given to or the term used to describe the matter under consideration. I must, therefore, determine the true nature of the event or transaction. What then is the substance of the transaction? The letters concerned told the Plaintiffs “you will be “posted” at or to the relevant school. According to the Solicitor General that is intended to mean that the Plaintiffs are in a situation which is not permanent. But the question is what has happened or is happening that is not permanent? The clear inference is that the Plaintiffs are to assume duties in some post at the respective schools. There is nothing before me to show that the word “posted” is to be given any particular meaning or defined in any particular way. Giving it its ordinary meaning, the one relevant to the context of this matter which I find in Websters New Twentieth Century Dictionary is “stationed at or assigned to a post”. In the Shorter Oxford English Dictionary “post” is defined as “to place, to station”. By this approach alone the letters have said you will be “stationed at” or “assigned to a post” at the relevant school.

The evidence shows that Assistant Lecturer (Psychology or General Science) Belize Teachers’ College and Teacher, Belize Junior Secondary School No. 2 are separate posts; Assistant Lecturer (Home Economics and Educational Psychology) Belize Teachers’ College and Teacher, Belize Junior Secondary School No.2 are separate posts; Lecturer (Educational Sociology) Belize Teachers’ College and Teacher Belize Junior Secondary School No.1 are separate posts; and Lecturer (English) Belize Teachers’ College and Teacher, Belmopan Comprehensive School are separate posts. The effect of the respective letters was to require the person concerned to “shift”, “move” or “go” from duties in one post to duties in another post. To move from one place to another place is to transfer and it is a transfer by whatever term the move is described, whether it be shift, move, post or transfer. Further, it is a transfer notwithstanding that the “shift” or “move” or “posting” is not permanent. Again the fact that the posts are at institutions within one department does not alter the fact that there is a transfer from one post to another albeit within the same department. Consequently I hold that in this case there was a transfer of the Plaintiffs on the occasion concerned.

The next issue is whether the transfer was properly effected. Who has jurisdiction to transfer such public officers? Section 106 of the Constitution provides “(1) The power to appoint persons to hold or act in offices in the public service (including the power to confirm appointments) and subject to the provisions of section 111 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Services Commission constituted for each case as prescribed in section 105(11) of this Constitution”. It is further provided in section 123 (ibid) “(1) Any reference in this Constitution to power to make appointments to any public office shall be construed as including a reference to power to make appointments on promotion and transfer to that office —.” The Constitution has thus vested in the Public Service Commission two classes of power: (I) the power to make appointments to the service, promotions and transfers within the service, and (II) the power to remove and exercise disciplinary control over members of the service. There are certain exceptions provided for in the said section which are not of concern to us here. It would be seen from a careful study of the Constitution that the powers thus vested in the Public Service Commission is to the exclusion of any other person or authority.

I observe, firstly, that the provision contained in section 106(1) is part of a chapter similar to chapters contained in many Constitutions of the New Commonwealth. In the Caribbean, see Chapter VIII Bahamas Constitution; Chapter VIII Barbados Constitution; Chapter IX Jamaica Constitution; Chapter VIII Constitution of Trinidad and Tobago. The purpose of these provisions such as are set out in Chapter VIII of the Constitution placed under that head “The Public Service” is to isolate members of the public service from undue influence and unwarranted interference. Having vested the Commission with the powers just adumbrated above, the Constitution also excludes it from being itself a part of the public service; secures its independence of the executive and legislature; and provides security of tenure.

Secondly, there cannot be two authorities with concurrent power or jurisdiction to make appointments, or promotions or transfers. The Constitution is the supreme law of the land. It has vested the powers under consideration in the Public Service Commission. Any other law which provides for the contrary is void in that respect and the Constitution must prevail. That this must be the position is inherit in a judgment of Lord Denning delivered as far back as 1962 in the Privy Council in Kanda v. Government of the Federation of Malaya [1962] A.C. 322. If it were otherwise a person or authority with concurrent power could thwart the exercise by the Commission of its functions. You therefore cannot have persons taking actions which in effect amount to doing what the Constitution says the Public Services Commission is to do. Thus, even if Chapter 10 paragraph 3 of the General Orders for the Public Service properly interpreted means a head of department can assign officers to perform suitable duties, the extent of such power must be construed in conformity with the provisions of the Constitution.

The Public Service Commission then is the authority with the power to transfer the persons concerned. It is to be noted also that by virtue of section 106(5) the Commission may delegate any one of its powers. It is accepted by all that it was the Acting Chief Education Officer who performed the act under consideration. There is no evidence that he was simply communicating a decision of the Public Service Commission to transfer the persons concerned or that the power of the Commission to transfer was delegated to him. In the result, I must hold that the transfer of the Plaintiffs was not in keeping with the Constitution and thus invalid.

The Plaintiffs will have their declarations accordingly. They are to have their costs.

THE CONSTITUTION OF BELIZE

ARRANGEMENT OF SECTIONS

PART I

The State and The Constitution

1. The State.

2. Constitution is supreme law.

 

PART II

Protection of Fundamental Rights and Freedoms

3. Fundamental rights and freedoms.s

4. Protection of right to life.

5. Protection of right to personal liberty.

6. Protection of law.

7. Protection from inhuman treatment.

8. Protection from slavery and forced labour.

9. Protection from arbitrary search or entry.

10. Protection of freedom of movement.

11. Protection of freedom of conscience.

12. Protection of freedom of expression.

13. Protection of freedom of assembly and association.

14. Protection of right of privacy.

15. Protection of right to work.

16. Protection from discrimination on the grounds of race, etc.

17. Protection from deprivation of property.

18. Provisions for periods of public emergency.

19. Protection of persons detained under emergency laws.

20. Enforcement of protective provisions.

21. Protection of existing laws.

22. Interpretation and savings.

 

PART III

Citizenship

23. Persons who become citizens on Independence Day.

24. Persons born in Belize on or after Independence Day.

25. Persons born outside Belize on or after Independence Day.

26. Registration.

27. Dual nationality.

28. Citizenship legislation.

29. Interpretation.

PART IV

The Governor-General

30. Establishment of office.

31. Acting Governor-General.

32. Oath to be taken by Governor-General.

33. Deputy to Governor-General’s functions.

34. Exercise of Governor-General.

35. Governor-General to be informed concerning matters of government.

 

PART V

The Executive

36. Executive authority.

37. Prime Minister.

38. Deputy Prime Minister.

39. Performance of functions of Prime Minister during absence or illness.

40. Ministers of Government.

41. Allocation of portfolios to Ministers.

42. Attorney-General.

43. Performance of functions of Ministers during absence or illness.

44. Cabinet.

45. Ministers of State.

46. Oath to be taken by Ministers, etc.

47. Leader of the Opposition.

48. Permanent Secretaries.

49. Secretary to the Cabinet.

50. Control of public prosecutions.

51. Constitution of offices, etc.

52. Prerogative of mercy.

53. Procedure in capital cases.

54. Belize Advisory Council.

 

PART VI

The Legislature

55. Establishment of Legislature.

56. Composition of House of Representatives.

57. Qualifications for election as member.

58. Disqualifications for election as member.

59. Tenure of office of members.

60. Speaker and Deputy Speaker.

61. Composition of Senate.

62. Qualifications for appointment of Senator.

63. Disqualifications for appointment as Senator.

64. Tenure of office of Senator.

65. Appointment of temporary Senators.

66. President and Vice-President.

67. Clerks to Houses of National Assembly.

68. Power to make laws.

69. Alteration of Constitution.

70. Regulation of procedure in National Assembly, etc.

71. Oath to be taken by members of National Assembly.

72. Presiding in House of Representatives and Senate.

73. Voting.

74. Freedom of speech.

75. Validity of proceedings.

76. Quorum.

77. Introduction of Bills, etc.

78. Restriction on powers of Senate as to money Bills.

79. Restriction on powers of Senate as to Bills other than money Bills.

80. Provisions relating to sections 77, 78 and 79.

81. Mode of exercise of legislative power.

82. Words of enactment.

83. Sessions of Legislature, etc.

84. Prorogation and dissolution of Legislature.

85. General elections and appointment of Senators.

86. Determination of questions as to membership of National Assembly.

87. Unqualified persons sitting or voting.

88. Elections and Boundaries Commission.

89. Electoral divisions.

90. Increase of electoral divisions.

91. Redivision of electoral divisions.

92. Conduct of voting.

93. Conduct of elections, etc.

 

PART VII

The Judiciary

94. Establishment of Supreme Court and Court of Appeal.

95. The Supreme Court.

96. Reference of constitutional questions to Supreme Court.

97. Appointment of justices of Supreme Court.

98. Tenure of office of justices of Supreme Court.

99. Oath to be taken by justices of Supreme Court.

100. Appeals to the Court of Appeal.

101. Appointment of Justices of Appeal.

102. Tenure of office of Justices of Appeal.

103. Oath to be taken by Justices of Appeal.

104. Appeals to Her Majesty in Council.

 

PART VIII

The Public Service

105. Public Services Commission.

106. Appointment, etc., of public officers.

107. Appointment, etc., of permanent secretaries and certain other officers.

108. Director of Public Prosecutions.

109. Auditor-General.

110. Appointment, etc., of junior police officers.

110A. Appointment, etc., of junior SIS officers and employees.

110B. Appointment, etc., of junior officers of Prison Service.

111. Appeals in discipline cases.

112. Pension laws and protection of pension rights.

113. Grant and withholding of pensions, etc.

 

PART IX

Finance

114. Establishment of Consolidated Revenue Fund.

115. Authorisation of expenditure from Consolidated Revenue Fund.

116. Authorisation of expenditure in advance of appropriation.

117. Contingencies Fund.

118. Remuneration of certain officers.

119. Public debt.

120. Audit of public accounts, etc.

 

PART X

Miscellaneous

121. Code of Conduct.

122. National Symbols.

123. Powers of appointment and acting appointments.

124. Reappointments and concurrent appointments.

125. Removal from office.

126. Resignations.

127. Saving for jurisdiction of courts.

128. Power to amend and revoke instruments, etc.

129. Consultation.

130. National Seal.

131. Interpretation.

 

PART XI

Transitional Provisions

132. Interpretation for this Part.

133. The Constitution – transitional powers.

134. Existing laws.

135. First Governor-General.

136. Ministers.

137. National Assembly.

138. Existing public officers.

139. Supreme Court and Court of Appeal.

140. Alteration of this Part.

 

PART XII

Repeal and Date of Commencement

141. Commencement.

142. Revocations.

FIRST SCHEDULE

SECOND SCHEDULE

THIRD SCHEDULE

FOURTH SCHEDULE