IN THE SUPREME COURT OF BELIZE, A.D. 2011

Transcription

1 IN THE SUPREME COURT OF BELIZE, A.D CLAIM NO. 816 of 2009 ZENAIDA MOYA FLOWERS MAYOR OF BELIZE CITY CLAIMANT AND THE ATTORNEY GENERAL DEFENDANT Hearings th October 14 th December th January 11 th February Mr. Hubert Elrington SC for the Claimant. Ms. Magalie Perdomo for the Defendant. LEGALL J. JUDGMENT 1. Zenaida Moya Flowers is the Mayor of Belize City, and the sole claimant in this matter. The claimant filed a fixed date claim form dated 29 th September 2009 against the defendant. An amended claim 1

2 form was filed dated 3 rd May, 2010 claiming several reliefs and declarations. Instead of summarizing, as I often do, the reliefs and declarations sought in the claim form, I think it is advisable to state the precise wording of the reliefs and declarations sought in the claim. I quote from the amended fixed date claim form as follows: Constitutional Redress The Claimant s claim is for: 1. A declaration that the Belize City Council is a statutory corporation and a legal person under section 3 of the Belize City Council Act, Chapter 85 of the Substantive Laws of Belize, Revised Edition A declaration that the Belize City Council is entitled under law to acquire and hold property of every description, under section 3 of the Belize City Council Act, Chapter 85 of the Substantive Laws of Belize Revised Edition A declaration that the Belize City Council s right to acquire and hold property is recognized and protected by section 17 of the Constitution of Belize, Chapter 4 of the Substantive Laws of Belize, Revised Edition A declaration that the legislature of Belize has no power to enact any law that compulsorily takes possession of any property which belongs to the City Council, and has no power to compulsorily take possession of any interest or right over any property that belongs to the Belize City Council and has no authority to give to any person or 2

3 any body, a right to take possession or control of any property that belongs to the Belize City Council, unless such legislation is enacted in manner provided by the Constitution of Belize for the alteration of section 17 of the Constitution of Belize. 5. A declaration that the following sections of Acts set out below are unconstitutional, null void and of no effect. Belize City Council Act, Chapter 85 of the Substantive Laws of Belize Revised Edition 2000 Section 3. Section 22(1) Section 23(1)(2) & (3) Belize City Council Amendment Act Act No. 19 of 2008 Act No. 19 of 2008 section 4 Act. No. 19 of 2008 section 5 Act No. 19 of 2008 section 6 6. An Order restraining the Government of Belize whether by itself, its servants and or agents from attempting to carry into effect the said section of the Belize City Council Act and the Regulation made thereunder listed above. 7. Costs. 8. Such further or other remedies as the Honourable Court deem just. 2. A statement of case was filed dated 29 th September, 2009 and another one was filed on 3 rd May, 2010 containing additional remedies to those stated above in the fixed date claim form. For instance, in the statements of case it is claimed that Regulation 4 of the Belize City 3

4 (Accounting) Regulations deprived the Mayor and Councillors of control over the council s finances and transfers that control to the Minister of Finance.. is.. unconstitutional, null, void and of no effect as it violates section 17 of the Constitution. Regulation 4 states: The only authority for the expenditure of Council funds shall be that which is conveyed by warrants issued by the Minister of Finance or by relocation warrants approved by the Mayor. The authority for expenditure conveyed by such warrant lapses at the end of the financial year to which they relate and no payments may be made after that date except under the authority of warrants issued for the services of the ensuring financial year. 3. It is also alleged, in the amended fixed date claim form and both statements of case, that sections 4, 5, and 6 of the Belize City Council (Amendment) Act No. 19 of 2008, which, in general, respectively state that: (1) no payment of salaries or otherwise shall be made to any member of the Council unless it has been approved by the Minister; (2) no expenditure shall be incurred by the Council, unless it had been previously approved by the National Assembly, but in cases of urgency the Minister may permit the expenditure; and (3) the Minister may appoint a financial controller if he feels the financial affairs are, for instance, not being conducted in accordance with the 4

5 rules and regulations. The statements of case state in relation to sections 4, as follows: For the reasons stated above, I believe this regulation to be unconstitutional, null, void and of no effect. 4. In relation to sections 5 and 6, it is respectively stated in the statements of case as follows: For the reasons stated above, and in addition because this regulation purports to give the National Assembly of Belize and the Minister of Finance power over the expenditure of the Council s money (its property) I believe this regulation to be unconstitutional, null, void and of no effect.. I am of the opinion that this regulation is unconstitutional, null, void and of no effect, and I now ask the court to so declare and strike it down. 5. The reasons stated above, would seem to be the matters pleaded in the statements of case, including the following: This provision in effect deprives the Mayor and Councilors of control over the Council s finances, and transfers that control to the Minister of Finance and makes it responsible to the Minister of Finance not to 5

6 the Electorate of Belize City. It is on this account, unconstitutional, null, void and of no effect as it violates the Constitutional requirement that the Government of Belize must be democratic section 2 of the Belize Constitution and that all person in Belize Natural and legal have the right to own and control their private property : (see paragraphs 9 and 12 of the statements of case). 6. The statements of case also challenge Regulation 26A of the Belize City Council (Standing Rules and Orders) (Amendments) Regulations 2009, No. 16 of 2009, which requires the financial controller s approval for certain payments, as unconstitutional null and void. This regulation states: 26A Notwithstanding Regulations 25 and 26 above, where a financial controller has been appointed by the Minister pursuant to section 23A of the Belize City Council Act, as amended, no payment requiring the approval or certification of the financial controller shall be made unless the same has been duly approved or certified by such financial controller. Once again in relation to this regulation, the statements of case state that: 6

7 I am of the view that this new regulation is unconstitutional and is as a consequence, null void and of no effect. I now ask the court to so declare it and strike it down. 7. The claimant further contends that certain other regulations are unconstitutional. One is regulation 3B(4) and 3C(3) of the said Belize City Council (Standing Rules and Orders) (Amendment) Regulation No. 16 of These regulations are as follows: 3B(4) Notwithstanding the foregoing provisions of this Regulation, the Minister may at any time convene a special meeting of the Council if he is of the opinion that such a meeting is necessary to discuss a matter of urgent public concern, and in every such case, the Minister may direct the City Administrator to issue notice of and agenda for the meeting as if the meeting had been called by the Mayor. 3C((3) A representative of the Ministry of Local Government shall have a right to attend every meeting of the Council, and for this purpose, copies of all notices shall be sent to that Ministry. 8. The claimant s case, as pleaded, is that the pieces of legislation mentioned above are unconstitutional in that they violate section 2 and 17 of the Constitution. Section 2 is the Supreme law clause of the Constitution, and section 17 deals with the compulsory acquisition of property and the requirement to pay reasonable compensation for such 7

8 acquisition within a reasonable time. The pieces of legislation above do not compulsorily take possession of any property of the claimant, or compulsorily acquired rights over or interest in any property of the claimant. It must be remembered that there is a presumption of constitutionality: see AG of Trinidad and Tobago v. Mootoo 1979, 30 WIR 411 at p 414. The submission that the pieces of legislation contravene sections 2 and 17 of the Constitution is, in my view, misconceived and without merit. 9. There is no dispute between the parties in relation to the declarations claimed in paragraphs 1, 2, 3 and 4 of the amended fixed date claim form mentioned above; and therefore no useful purpose would be served, and it is not necessary, to make the declarations prayed for in those paragraphs. I refuse the other declarations prayed for in the said claim form for the reasons that the pieces of legislation above do not compulsorily take possession or compulsorily acquire any property or rights or interest in any property of the claimant. 10. A further contention of the claimant may be interpreted to be that the above mentioned sections of the Act, and the said regulations, have compulsorily taken possession of the property of the Belize City Council or possession of interest in or rights over property that belongs to the Belize City Council, and are therefore unconstitutional. The claimant therefore applied for declarations to this effect. The Belize City Council is not a party to these proceedings, and has made no complaint that the legislation is unconstitutional or that it compulsorily acquired or took possession of any property of the 8

9 Council. Quite to the contrary, the Council issued a statement dated 30 th September, 2009, after the claim was filed, as follows: Public Statement of the Belize City Council Dated 30 th September 2009 It has come to the attention of the Belize City Council that legal proceedings have been started in the Supreme Court of Belize by Mrs. Zenaida Moya Flowers against the Attorney General of Belize, namely Claim No. 816 of For the avoidance of doubt, the public is informed that the Belize City Council has held no meeting discussing or agreeing to the commencement of this case. This court case has been brought by Mrs. Moya Flowers in her personal capacity and without any approval, endorsement or participation from the Belize City Council. Furthermore, the Belize City Council rejects the merits of the claim. In the interests of transparency and accountability the Belize City Council supports those recent amendments to the law which have facilitated the introduction of a financial controller to oversee the financial affairs of the Council. 11. Moreover, the pieces of legislation above do not compulsorily acquire any property or interest in or rights over any property of the Belize City Council. It may be convenient to quote the legislation which the claimant alleges in the claim form compulsorily acquired property or interest in property of the Belize City Council. Section 3 of the Act deals with the establishment and constitution of the 9

10 Council; section 22(1) deals with how and when the City Council is authorized to raise loans and section 23(1) and (2) deal with the submission to the Minister of estimates and revenue expenditure of the Council. Sections 4, 5 and 6 of the Belize City Council (Amendment) Act No. 19 of 2008 which the claimant challenges as unconstitutional are as follows: 4. No payment shall be made to any member (whether in the form of a salary, allowance or otherwise) unless it has been previously approved by the Minister of Finance, and every payment made in contravention of this section shall be wholly void and shall be recoverable from the member receiving such payment. 5. Section 23 of the Principal Act is hereby repeated and replaced by the following: No expenditure shall be incurred by the Council unless it has been previously approved by the National Assembly but the Minister responsible for Finance may, if it appears to him to be of sufficient urgency, permit the Council to incur any lawful expenditure not prescribed in the approved estimates, and in every such case, the council shall include such extra expenditure in the supplementary estimates and submit the same to the Minister of Finance for the approval of the National Assembly. 6. Where the Minister, after considering the financial affairs of the Council, forms the opinion that its financial affairs are not being conducted in accordance with the rules and regulations, or that the financial 10

11 position of the Council is such that it requires strengthened fiscal management and financial controls, he may, after consultation with the Council, appoint a financial controller to oversee the financial affairs of the Council and may direct that all disbursements from the Belize City Fund above such amount as he may prescribe shall be certified by such financial controller in order to be valid. 12. As can be seen, neither of the above sections compulsorily acquired any property or interest in property of the Belize City Council. Moreover, Mr. Dion Leslie, the then Deputy Mayor of Belize City who was acting Mayor at the time the claim was issued, swore that at no point in time did the Belize City Council passed a resolution authorizing Mrs. Zenaida Moya Flowers to initiate proceedings on the City Council s behalf. To this date no such resolution has been passed by the Belize City Council. But if it is said that it is a claim on behalf of the Belize City Council, the above mentioned public statement and the above evidence of Leslie, both contained in his affidavit, which remain uncontradicted, show that the claim was not made on behalf of the Belize City Council. 13. This claim, as conceived and drafted, can be described as amounting to a wastage of judicial time. Learned counsel for the defendant, Ms. Magali Perdomo sums up admirably the thinking of the court in relation to this claim. Ms. Perdomo writes in her submissions on behalf of the defendant: 11

12 The claim that these sections contravened section 17 of the constitution is misconceived and ought not to have been brought. All the remedies prayed in the claim are likewise based on the misconception of the relevant provisions and failed to appreciate the true purpose and rationale behind the amendments I fully agree. I therefore make the following orders: (1) The claims in the claim form are dismissed. (2) The claimant to pay costs to the defendant, to be agreed or taxed. Oswell Legall JUDGE OF THE SUPREME COURT 11 th February,