IN THE SUPREME COURT OF BELIZE, A.D. 2009

Transcription

1 IN THE SUPREME COURT OF BELIZE, A.D ACTION NO. 20 of 2009 CLEMENT CACHO APPLICANT BETWEEN AND THE QUEEN THE ATTORNEY GENERAL RESPONDENTS Hearings th June 18 th June Mr. Linbert Willis for the Applicant Ms. Priscilla Banner, for the Respondents LEGALL J. JUDGMENT This is an application for permission to apply for judicial review under Rule 56.3 (1) of the Supreme Court (Civil Procedure) Rules 2005, which states that a person wishing to apply for judicial review must first obtain permission. The circumstances which gave rise to the application are not in dispute. 1

2 The applicant, a sergeant of police at the time, received a letter dated 18 th September, 2007 from the office of the Security Services Commission, a body established by section 110 C (1) of the Constitution, which promoted him to act in the rank of Inspector of Police for a period of six months effective from 1 st August, According to the letter, the Commissioner of Police was requested to submit an assessment report to the Commission at the end of the six months. I have no doubt that the request for the assessment report was to assist the Commission to decide whether the acting appointment should be made substantive. About three months after the date of the acting appointment, the applicant received another letter from the Commission dated 26 th October, 2007 rescinding the applicant s appointment of acting Inspector of Police with effect from that date, and reverted the applicant to his substantive rank of Sergeant of Police. The letter did not state a reason for the rescission, nor did it give an indication whether the applicant was given an opportunity to be heard prior to the decision to rescind his appointment. The applicant states that he had on 23 rd October, 2007 testified in a criminal case in the Supreme Court against an accused charged for the offence of manslaughter. The accused was acquitted. A couple of days after the acquittal, he received the rescission letter. The applicant on 14 th November, 2007 filed a notice of appeal to the Belize Advisory Council, a body established by section 54 of the Constitution. About one and a half years after the date of the appeal, the applicant by letter dated 9 th April, 2009 received information on 5 th May, 2

3 2009 that the decision to revert him to the substantive rank of Sergeant of Police was upheld by the Belize Advisory Council. About one month after receiving this information, he filed on 2 nd June, 2009 the present application seeking permission to apply for judicial review to quash the decisions of the Commission and the Council. As we have seen, under Rule 56.3 (1) of the Supreme Court (Civil Procedure) Rules 2005, any person wishing to apply for judicial review must first obtain permission from the Supreme Court. Under Rule 56.3 (4) the court could direct the hearing of the application for permission to be held in open court and may direct that notices be given to the respondent. Having read the affidavit in support of the application, I decided to give notice to the respondent, and I fixed the 15 th June, 2009 for the hearing of the application. The case for the applicant is that he was removed from the office of Acting Inspector of Police without a hearing and he suffered loss of the additional remuneration attached to that acting office. It was submitted by the respondent that the applicant did not apply for permission for judicial review promptly or within three months from the date when the grounds for the application first arose, which was 26 th October, It would be recalled that the applicant filed the application on 2 nd June, 2009 more than eighteen months after the grounds for the application first arose. Moreover, says learned counsel for the respondent, the applicant did not advance sufficient reasons for the delay; or further, there was a lack of reasons for the delay. It was also submitted that to grant the permission to proceed, on the facts of the case, would be detrimental to good 3

4 administration. In support of these submissions, the respondent relied on Rule 56.5 which states as follows: (1) In addition to any time limits imposed by any enactment, the judge may refuse permission to grant relief in any case in which the judge considers that there has been unreasonable delay before making the application. (2) When considering whether to refuse permission or to grant relief because of delay the judge must consider whether the granting of permission or relief would be likely to (a) cause substantial hardship to, or substantially prejudice, the rights of any person; or (b) be detrimental to good administration (3) An application for permission to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, unless the court considers that there is a good reason for extending the period within which the application shall be made. 4

5 The respondent also relied on dicta in the Jamaican cases of Portsmore Citizen Advisory Council Claim No of 2005 and Tulock Estates Ltd v. Industrial Disputes Tribunal (un reported) a case cited in Portsmore. In Portsmore, the court did say that expedition is an essential feature and delay should be avoided. But each has to be decided on its own facts and circumstances. In Portsmore the delay was about three years and the circumstances were different from the present case. It cannot be properly denied that the applicant did not promptly or within three months from the date when the basis for the application arose, apply for judicial review. But was there unreasonable delay in making the application. It is important to consider the circumstances of this case. In paragraph 17 of his affidavit in support of the application, the applicant gave the reasons for the delay That the Belize Advisory Council took more that one year and six months before the Council advised me of its decision and for that reason it took me this long to seek leave to apply for judicial review. The applicant seems to be saying, though I must agree not with very much elegance, that he was waiting on the results of the appeal, before filing his application. Regulation 23(3) of the Service Commissions Regulations No. 159 of 2001 provides for appeals to the Belize Advisory Council; and as we have seen, the Council upheld the decision of the Security Services Commission. Rule 56.5(3), because of the clause: unless the court 5

6 considers that there is a good reason for extending the period within which the application shall be made, clearly intends that the court may proceed to hear an application, even though it was not made promptly or within the said three months period. In other words, the provisions of Rule 56.5 (3) with respect to promptness and the time period are not mandatory. The legislation contemplates the granting of permission, even though the application was not made promptly or within the three months period, if there are good reasons for doing so. What is of vital importance is whether there was unreasonable delay under Rule 56.5 (1) or whether there are good reasons for extending the time for the application. The applicant waited on the appeal process to work before applying to the court. Learned Counsel for the applicant submitted that this was a good reason for the delay. The applicant must have considered that in the event of the appeal being successful, he would save the legal expenses of an application to the court; so that it would be better to wait until the appeal is decided. He must have been fortified in taking this position, because he believed that he was not heard by the Commission before he was removed from the rank of acting Inspector of Police; and therefore had confidence in winning his appeal. Is this a good reason or was the claimant unreasonable in waiting on the decision of the Council. Considering Rule 56.5 (2), and the circumstances of this application, I rule that there is good reason for extending the time for the application and that there was no unreasonable delay in making the application. It was further submitted that the applicant did not have an arguable case because his acting appointment was terminated under Regulation 17(4) 6

7 of the above mentioned Regulations and under this Regulation, there was no requirement for a hearing. Regulation 17(4) states: (4) If an officer s performance is considered unsatisfactory, his acting appointment shall be terminated. The acting appointment carried with it an acting allowance. The termination of the acting appointment resulted in him losing the acting allowance. It is arguable that the Commission ought to hear him before finding that his performance was unsatisfactory, and before, in effect, taking away his acting allowance. The Commission is a body with legal authority to determine questions affecting the rights of police officers. This being so it may be argued that the Commission is required to observe natural justice when exercising that authority. Rule 56.3 give a discretion to the court to grant permission for judicial review. That discretion has to be exercised reasonably. There must be good reasons for granting the permission. It seems to me that the applicant for permission for judicial review must show that he has an arguable case before the court could grant permission. Because the case is arguable, I think the applicant should be given permission to advance that argument, if he so wishes, in support of his application. On the submission that granting permission for judicial review in this case would be likely to be detrimental to good administration, we must never forget the wisdom of Sir John Donaldson M.R. Notwithstanding that the courts have for 7

8 centuries exercised a limited supervisory jurisdiction by means of the prerogative writs, the wider remedy of judicial review and the revolution of what is, in effect, a specialist administrative or public law court is a post war development. This development has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration: See R v Lancaster CC exparte Huddeston AER 941 at p 945 In order to ensure that the matter is dealt with expeditiously, which is one of the overriding objectives of the Rules, I have decided to extend the period for making this application to the date of the application, which is 2 nd June, I therefore make the following orders: 1. Period extended for making this application to the date of the application 2 nd June, Permission is granted to the applicant to make a claim for judicial review within 14 days of receipt of this order granting permission. 8

9 3. The first hearing of the claim is fixed for 10 th July, 2009 at 9:00 a.m. OSWELL LEGALL JUDGE 18 th June,