ACTION NO. 65

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BEFORE the Honourable Abdulai Conteh, Chief Justice.

APPEARANCES:
Mr. Oscar Sabido S.C. and Mr. Kirk Anderson for the Applicant.
Hon. Godfrey Smith, Attorney General; Mr. Edwin Flowers S.C., Solicitor General and Miss Tanya Longsworth, Crown Counsel for the First Respondent.
Mr. Fred Lumor and Mr. Michel Chebat for the Second Respondent.

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JUDGMENT

News that a judge of the Supreme Court is to appear before any body for the purposes of investigation is certainly of general public interest. This must be so because of the position of a judge in nearly every society. It has been said and rightly so; in my view, that society attributes honour, if not veneration, learning if not wisdom, together with detachment, probity, prestige and power to the office of a judge. Therefore, news of any probe concerning a judge would elicit public attention, whether of the concerned or the plainly curious. This may be for the public good.

But the public weal itself will be damaged if the news is not handled with care and circumspection; for it may inevitably result in the corrosion of public confidence in the judiciary itself, with deleterious effects on the administration of justice as a whole.

The public right to know and be informed is one which the courts ought always to protect, but this must be balanced with the way that knowledge or information is purveyed. Anything tending to convey unsubstantiated rumours, idle gossip or the salacious must be restrained, particularly in a society such as we have in Belize, which is a veritable fish bowl for almost every public office holder. Otherwise, the right to know becomes corrupted with the zeal to feed frenzy on unsubstantiated rumours and stories. This will be a positive disservice to all Belizeans, for when facts and fiction collide, faction is the result.

This is why I regret the way in which some sections of the media covered the developments concerning the applicant that have culminated in this application before me. And the Applicant has, not without reason, complained. But I am satisfied that none of the parties to this application is in any way responsible for the less than satisfactory manner in which some sections of the press tried to portray the applicant. It is therefore reassuring to note the fact that the President of the second Respondent, the Belize Bar Association, has filed an Affidavit in these proceedings distancing the Association from the publication of their allegations contained in their complaint to the Governor-General, and has affirmed that the Association bears or harbours no malice towards the Applicant.

It is possible that but for the unfortunate disclosure in the press, the applicant might not have felt the need to apprehend that he has been denied, as he contends in this application, the protection of the law, and he therefore harbours perhaps an understandable feeling of being railroaded. Hence his present application. And to this I must now turn.

At the very outset of this application, I was personally presented with a dilemma in the form of a request by one of the Attorneys for the applicant that I should recuse myself from hearing this application. This request was based, I believe, on the view of the applicant's Attorney that, on the Affidavit evidence by both the applicant and the Governor-General, there seemed to be some conflict and that therefore there may be need to call the Governor-General for cross-examination in order to clarify the conflict. In the course of doing so, the attorney felt that I may be called by one side or the other.

Also the attorney urged, that in my capacity as Chief Justice and by the Constitutional provisions, the head of the judiciary, the complaints against the applicant should have been channeled through me: therefore, he argued, I should not sit on this application.

The learned Attorney-General however resisted the request on the ground that it was not properly made and could not be substantiated on any possible ground of bias or conflict of interest, either of the pecuniary or non-pecuniary kind, which would normally have precluded me from sitting on the application. He further submitted that, in any event, there was no conflict in the Affidavits that could be reconciled by cross-examination.

I ruled however, that a proper basis for me to recuse myself has not been established. In the event however, no application to call the Governor-General for cross-examination was ever made. Also, I am fortified, notwithstanding my earlier dilemma, by the assurance of the learned attorney for the applicant that neither he nor his client thinks I am hostile or biased in these proceedings.

Originally, when this application came up for hearing, the first Respondent, the Attorney-General, was the only party joined. But by Summons dated 19 February 2001, the Bar Association of Belize applied to be joined as second Respondent. The applicant resisted this application on the ground that the first Respondent, the Attorney-General, was the only proper party to be joined. But the Bar Association of Belize submitted that as one of the complainants to the Governor-General which triggered off the letter to the applicant, if the several reliefs prayed for by the applicant were granted without hearing the Association, it would cause injustice to it.

I therefore exercised my discretion under Order 17 Rule 12 of the Supreme Court Rules and ordered the joinder of the Bar Association of Belize as necessary in order that I may effectively and completely settle the issues raised before me on the applicant's application.

I would therefore at this point like to commend all the Attorneys who made submissions on this application for the able and vigorous manner in which they presented the issues involved. They helped me immensely in reaching the conclusions I was able to arrive at in this case. It is an important application which involves certain provisions of the Constitution of Belize and the relationship between these and some of the other laws of the land. At the heart of the application is the issue of the tenure of office of judges of the Supreme Court and the claim by the applicant, a judge of the Supreme Court, that in the circumstances of this case, he has been denied the protection of the law and equal treatment under the law.

Although this matter came before me in the garb of a constitutional motion, the learned attorney for the second Respondent, the Bar Association of Belize, contended that the applicant should have come by way of judicial review and not via the route of a constitutional challenge. Although there may be some merit in this argument given the nature of what the applicant seeks to impugn in this application, viz, an exercise of power albeit, conferred by the Constitution on the Governor-General; and as the learned authors of the fifth edition of the late Stanley De Smith's seminal wok Judicial Review of Administrative Action (Sweet and Maxwell, 1995) state in their preface: ". . .the effect of judicial review on the practical exercise of power has now become constant and central."

However, it may well happen that when an application for judicial review is made, it may as well entail a consideration of certain constitutional provisions, distinct and separate from a claim for redress for breaches of constitutional rights. The latter is par excellence, the subject of a Constitutional motion. In the former however, that is, judicial review, a determination may have to be made whether a legal power or discretion conferred, has been improperly exercised, thereby tainting it with illegality, irrationality or procedural impropriety.

This occasional overlap between judicial review and Constitutional challenge is inevitable in a country such as Belize with our written Constitution with its guarantee and protection of human rights. It must also be remembered that though judicial review is increasingly being resorted to now in Belize, it is a process that is still only available by an exercise in exegesis, as it were, piggy-backed on Order 53 of the English Rules of the Supreme Court (as they then were). And unlike a constitutional challenge, is only available by leave of the Court, with the onus on an applicant that he has a prima facie case.

In any event, the object of the challenge is the same, whether by way of judicial review or constitutional motion, viz, to ensure judicial oversight of the exercise of power in order that it may conform with the law, and if not, to provide relief as appropriate.

In the end, however, it really does not make any difference how the applicant chooses to approach the Court, especially in the matter of an exercise of a legal power, in this case, a constitutionally conferred one. I might also add that applicants in similar circumstances as the applicant here, have been known to bring both a judicial review and a constitutional motion to impugn decisions affecting them - see Rees and Others v Crane (1994) 43 WIR 444. The procedural divide is, I believe, not so marked in the area of public law between constitutional motion and judicial review especially when there are claims of the denial or infringement of human rights.

In any event, in the present application before me, the applicant contends that certain provisions of the Constitution, viz, sections 3(a) and 6(1) thereof have been and/or are likely to be contravened in relation to him. Hence this application pursuant to section 20 of the Constitution of Belize. So far as is material here this section provides:

"20(1). If any person alleges that any of the provisions of sections 3 to 19 inclusive of this Constitution has been, is being or is likely to be contravened in relation to him ...then, without prejudice to any other action with respect to the same matter which is lawfully available, that person ...may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction -

(1) to hear and determine any application made by any person in pursuance of subsection (1) of this section;

. . .

and may make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 19 inclusive of this Constitution."

It is pursuant to this provision that the applicant has prayed for the following reliefs from this Court:

1. A Declaration that the Applicant has been deprived and/or is likely to be of the Protection of the Law as guaranteed to him by Section 3(a) of the Belize Constitution insofar as the Governor-General has, while purporting to act in accordance with his powers under Section 98(4) of the Belize Constitution, made a decision to refer certain allegations which purport to form a basis for the Applicant's removal from office as a Justice of the Supreme Court, without having at any time prior thereto acted fairly in relation to the Applicant, nor complied in any respect with the rules of natural justice.

2. A Declaration that the Applicant has been deprived of the Protection of the Law as guaranteed to him by Section 3 (a) of the Belize Constitution insofar as the Governor-General has made a decision to refer certain unproven and untested allegations which purport to form a basis for the applicant's removal from office without his having first investigated such complaints to determine whether they form a proper and sufficient basis for referral to the Belize Advisory Council, particularly insofar as Section 98(4) of the Belize Constitution requires the Belize Advisory Council to investigate the question of removal from office of a Supreme Court Justice, as distinct from investigating the validity of allegations which may ultimately form the basis for a proper consideration by the Belize Advisory Council of the question of removal from office of a Court Justice of the Supreme Court.

3. A declaration that in the absence of an investigation or full enquiry by the Governor-General into the allegations of wrongdoings and misbehaviour made against the Applicant by members of the Bar Association of Belize, the Applicant's right to the Protection of the Law, as guaranteed to him by Section 3(a) of the Belize Constitution is likely to be infringed insofar as it is now expected that the said allegations in and of themselves will form the basis for the referral by the Governor-General to the Belize Advisory Council whereupon the Belize Advisory Council would be required to act upon those allegations in a manner not provided for by Section 98(4) of the Belize Constitution, which is that they would then be required to investigate into the validity of the allegations.

4. A Declaration that the Applicant either has been and/or is likely to be deprived of the equal protection of the law as is guaranteed to him by Section 6(1) of the Belize Constitution, insofar as, unlike as is generally the case with other public officers, where criminal allegations are set out as the basis for their removal from the employment post which they hold, such allegations are referred to the police and if necessary to a Criminal Court for adjudication thereon, whereupon only if a conviction results will dismissal ensue. The Applicant contends that as the allegations made against him by members of the Bar Association of Belize are all of a criminal nature, a similar procedure as aforesaid should have been followed prior to the question of possible removal from office having ever been contemplated by the Governor-General, and thereby seeks Declaratory Relief accordingly.

5. A Declaration that the Applicant's right to the Protection of the Law as is guaranteed to him by Section 3(a) of the Belize Constitution is likely to be infringed insofar as there is a possibility that he may be suspended from performing the functions of his office if the allegations of misbehaviour as made against him are in fact referred by the Governor-General to the Belize Advisory Council, in the manner as set out in the Affidavit evidence to be lodged in support hereof.

6. A Declaration that the Applicant's right to the Protection of the law as guaranteed to him by Section 3(a) of the Constitution of Belize has been and is being contravened in relation to him, insofar as the primary matter of alleged misbehaviour which has been referred to the Governor-General by Attorney-at-Law Ms. Lois Young Barrow, concerns allegations arising out of a case which is presently pending in the Supreme Court of Belize as between Business Machines and Solutions Ltd. and Belize Telecommunications Ltd., the outcome of which case and any legal matters arising therefrom upon which there is dispute, may later be made to form the basis of Appellate Court proceedings and is therefore 'Sub Judice', thereby making ordinarily unlawful, any comments made in whatsoever context out of Court, which may affect the outside of that case.

7. A Declaration that the Applicant's right to the protection of the law as is guaranteed to him by section 3(a) of the Constitution of Belize has been breached, insofar as his legitimate expectation to have the allegations against him referred to the Governor-General (if necessary) by the Chief Justice and to have the allegations made against him investigated and/or prosecuted by the appropriate investigating and/or prosecuting authorities prior to a decision being made by anyone, including the Governor-General, that the question of the Applicant's removal ought to be referred to the Belize Advisory Council, so as to allow for them to decide upon same, has not been the procedure followed in dealing with the allegations made against the Applicant AND THAT his legitimate expectation to also have the allegations against him be enquired into under the provisions of the PREVENTION OF CORRUPTION IN PUBLIC LIFE ACT (1994) has not been met.

8. A Declaration that the Applicant has been deprived of the Protection of the Law guaranteed to him by Section 3(a) of the Belize Constitution inasmuch as highly prejudicial and irrelevant matter was included in the complaint sent to the Governor-General by the Bar Association of Belize, which had no relation to the Applicant's performance of his functions as a Justice of the Supreme Court and did not amount to 'misbehaviour' for the purpose of Section 98(3) and (5) of the Belize Constitution. Moreover, wide publicity given to such extraneous matter in the news media and otherwise has seriously prejudiced the Applicant's right to receive a fair hearing.

9. Damages for breaches of the Applicant's constitutional rights under Sections 3(a) and 6(1) respectively, of the Belize Constitution.

10. An Order that in view of the irreparable prejudice that would be caused to the Applicant if the Governor-General were to be allowed at any time hereafter to consider the matter of the allegations raised against the Applicant, that any and all proceedings in pursuance of Section 98 of the Constitution of Belize with respect to those allegations, be quashed.

11. A Stay of any and all Proceedings regarding suspension of the Applicant from performing the functions of this office as a Justice of the Supreme Court of Belize until the conclusion of this Action.

12. A Stay of any and all Proceedings related to the Belize Advisory Council considering whether or not the Applicant should be recommended for removal from office for misbehavior or enquiring into that question of removal of the Applicant from office for misbehavior.

13. A Stay of any action by or on behalf of the Governor-General to refer the allegations of misbehaviour brought against the Applicant by members of the Bar Association of Belize, to the Belize Advisory Council.

14. Costs.

15. Such further or other relief as may be just.

This motion by the applicant is supported by three Affidavits by him sworn to on 13th, 16th and 19th February 2001 respectively.

The action which has set in train this application is a letter dated 2nd February 2001, from the Governor-General and addressed to the applicant. This letter is, in my view, central to this application and is annexed to the Affidavit of the 13th February by the applicant; and I reproduce it here in its entirety.

"GEN/38/01/01 (50)

Hon Mr Justice Meerabux
Supreme Court
Belize City

2nd February, 2001

Dear Sir,

Please find enclosed three documents, viz:

1. A letter dated 16th October, 2000 from Attorney-at-Law Lois Young Barrow.

2. A letter dated 30th October, 2000 also from Lois Young Barrow.

3. A correspondence from the Bar Association of Belize, dated 30th January 2001, signed by the President, Vice-President, Secretary, and two Committee Members of the said Bar Association.

These letters and their contents are, in effect, complaints again your continued tenure as a judge of the Supreme Court of Belize, on the grounds that (and I quote from the Bar Association letter)

(1) (You have) used (your) office corruptly for private gain and allowed (your) integrity to be called into question.

(2) (you have) demeaned (your) office and engaged in a conduct that is immoral and reprehensible so as to render (you) unfit to hold the office of a judge of the Supreme Court of Belize." (End of quote).

It is my opinion that these complaints should be referred to the Belize Advisory Council under Article 98, subsection 5 of the Belize Constitution.

You will further note that the same Article (subsection 6) empowers the Governor-General to "Suspend the justice from performing the functions of his office" but only if the question "has been referred to the Belize Advisory Council".

Yours truly,

C N Young
Hon Sir Colville Young GCMG
Governor-General"

Also forwarded with this letter were three documents, which the Governor-General described along with their contents as ". . . in effect, complaints against your continued tenure as a judge of the Supreme Court of Belize."

From the motion of the applicant and the arguments and submissions by his learned Attorney, the following issues arise, in my view, for determination,

The first issue can be stated thus: the applicant contends that he has been deprived and/or is likely to be of the protection of the law as guaranteed to him by section 3(a) of the Belize Constitution in so far as the Governor-General while purporting to act in accordance with his powers under section 98(4) of the Constitution, made a decision to refer certain allegations against him without previously acting fairly in relation to him, and that the Governor-General did not, in any respect, comply with the rules of natural justice. In short, the Governor-General breached the rules of natural justice.

Does the Governor-General's letter of 2nd February 2001 to the applicant establish a breach of natural Justice?

The second issue is that the applicant claims that the Governor-General had made a decision to refer certain unproven allegations to the Belize Advisory Council without having first investigated the validity of these allegations to determine whether they form a proper and sufficient basis for the purposes of sections 98(4) of the Constitution. Is there a duty on the Governor-General to investigate the validity of allegations to determine whether they form a proper and sufficient basis for purposes of section 98(4)?

The third issue which is related to the second, is that in the absence of any investigation or full inquiry by the Governor-General into the allegations of wrongdoings and misbehaviour made against the applicant, he claims that his right to the protection of the law as guaranteed by section 3(a) of the Constitution is likely to be infringed, if these allegations were to form the basis of a referral by the Governor-General to the Belize Advisory Council which will then be required to act on those allegations in a manner not provided for by section 98(4) of the Constitution, especially when the Belize Advisory Council, the applicant further claims, has no procedure or rules governing it in respect of such complaints.

There are also two other issues that are closely related and for convenience could be called the fourth : in this the applicant claims that he has been or is likely to be deprived of the equal protection of the law as is guaranteed him by section 6(1) of the Constitution in that as a public officer, like in the case of other public officers, where there are criminal allegations made against them, such allegations are first referred to the police and the prosecutorial authorities, and if convicted then only will dismissal ensue, and that in his case, the allegations against him should have been referred if necessary by the Chief Justice to the Governor-General even before a decision by the Governor-General to refer the question of his removal to the Belize Advisory Council and that his legitimate expectation as a public officer to have the allegations against him enquired into first under the provisions of the Prevention of Corruption in Public Life Act 1994, has not been met.

The fifth issue relates to the question of sub judice. The applicant claims that the primary matter of alleged misbehaviour against him arises out of a case which is still pending in the Supreme Court between Business Machines and Solutions Ltd. v Belize Telecommunications Ltd. in Action No. 435 of 2000, and that it would be ordinarily unlawful to comment on that alleged misbehaviour whatsoever as this may affect the outcome of the case.

The sixth issue is that the applicant claims that highly prejudicial and irrelevant matters have been included in the complaint sent to the Governor-General which have no relationship to his performance as a judge and in fact do not amount to "misbehaviour" within the context of sections 98(3) and (5) of the Constitution.

I shall now take each of these issues in turn.

1. DID THE GOVERNOR-GENERAL'S LETTER OF 2ND FEBRUARY TO THE APPLICANT DEMONSTRATE THAT THE GOVERNOR-GENERAL HAD MADE A DETERMINATION TO REFER THE COMPLAINTS TO THE BELIZE ADVISORY COUNCIL WITHOUT FIRST GIVING THE APPLICANT AN OPPORTUNITY TO COMMENT AND THEREBY DENYING HIM NATURAL JUSTICE?

From the evidence in this case, the following chronology is discernible as leading up to the present application:

(1) On 25th February 1999 the Bar Association of Belize passed a resolution against the continued tenure of the applicant as a judge of Supreme Court.

(2) On 16th October 2000, Lois Young-Barrow S.C. wrote to the Governor-General complaining against the applicant assigning an interlocutory ex parte application for an injunction to himself after having been seen in his chambers by the beneficial owner of one of the parties to an action. This letter also referred to the resolution of the Bar Association of Belize mentioned above, and also to two other complaints which had been made by practicing attorneys, presumably also sent to the Governor-General.

(3) On 30th October 2000, Lois Young-Barrow, again, wrote to the Governor-General expanding on her complainant contained in her letter of 16th October, mentioned above, and referring to a third complaint against the applicant contained in an Affidavit of complaint dated 2nd December 1999, provided to the law firm of Shoman, Usher and Chebat.

(4) On January 30th 2001, the Bar Committee of the Bar Association of Belize wrote to the Governor-General "charging" the applicant with misbehaviour in the office of a judge of the Supreme Court and relying on assertions contained in four accompanying Affidavits. The Association's letter invited the Governor-General to consider the matters alleged in the said Affidavits and prayed him to proceed upon the complaint as provided for in section 98(4) of the Constitution.

(5) On 2nd February 2001, the Governor-General wrote to the applicant forwarding all the letters mentioned above (the text of this letter has been produced supra) and all the affidavits.

(6) On 5th February 2001, Oscar A. Sabido S.C. attorney for the applicant wrote to the Governor-General. I think it is pertinent to reproduce the text of this letter which I shall at the appropriate stage.

(g) On 7th February 2001, the applicant filed the present Constitutional Motion seeking the several declarations prayed for therein and other reliefs.

Now, I turn to the applicant's claim that the Governor-General while purporting to act in accordance with his powers under section 98(4) of the Constitution, made a decision to refer certain allegations which purport to form a basis for his removal from office as a justice of the Supreme Court, without at any time prior thereto acting fairly in relation to him and did not in any respect comply with the rules of natural justice.

It is helpful, I believe, in this regard, to set out the provisions of the Constitution which are materially relevant to a determination of this issue. These are contained in Section 98 as follows:

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

(4) A justice of the Supreme Court shall be removed from office by the Governor-General if the question of the removal of that justice 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 justice ought to be removed from office for inability as aforesaid or for misbehaviour.

(5) If the Governor-General considers that the question of removing a justice of the Supreme Court from office for inability as aforesaid or for misbehaviour ought to be investigated, then -

(7) 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

(8) 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 that justice should be removed under this section.

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

(7) Except as otherwise provided in this section, the functions of the Governor-General under this section shall be exercised by him in his own deliberate judgment."

From these, it is evident that there are several stages involved in a determination of the question of the removal of a judge of the Supreme Court in Belize.

It is common ground between the parties that there are three stages which may be stated as follows:

First, the Governor-General considers that the question of removal of the judge ought to be investigated;

Secondly, he then refers the matter to the Belize Advisory Council which shall then sit as a tribunal and

Thirdly, the Belize Advisory Council then enquires into the matter and reports on the facts of the matter to the Governor-General.

But there is, in my view, on a closer analysis of the relevant Constitutional provisions, an inarticulate but critical antecedent stage to all the other stages. This, I will call the trigger stage, which is not evident on a literal reading of the Constitution's provisions.

Subsection (5) simply states that if the Governor-General considers that the question of removal, whether for inability or misbehaviour, ought to be investigated, then the next stages are put in train.

The threshold issue is: how does the Governor-General come to consider the question in the first place? Is it by some divine inspiration or instruction? Or by some majestic or gubernatorial whimsy such as I pressed on both sides during the argument of this application, that the Governor-General can just get up, with all due respect, after a fine lunch one Sunday afternoon in Belize House in Belmopan and say that the question of the removal of a judge of the Supreme Court ought to be investigated?

I am glad to say that both sides responded in the negative to the latter although I am not sure they or anyone else, would want to be drawn on the divine aspects.

What is at least agreed is that something or somebody must set off the trigger, as it were, to bring the Governor-General to consider that the question of removal ought to be investigated. This, as I said earlier, is not clear on the face of the Constitutional provisions. It may be some representation, some complaint or whatever; arriving at the point of consideration is not in a void. In short there must be some antecedent, a trigger, if you will.

Unlike the situation in some other Caribbean jurisdictions, for example, Trinidad and Tobago and Guyana, some authority or the other has to make representation to the President that the question of the removal of a judge ought to be investigated; in the case of the Chief Justice in Trinidad and Tobago, it is the Prime Minister who makes the representation to the President and in the case of a judge other than the Chief Justice, it is the Judicial and Legal Services Commission which makes the representation on the question of removal to the President. The provisions are similar under the Constitution of Guyana, only that it has a Chancellor and Chief Justice, and the Prime Minister makes the representation in the case of each, and the Judicial Service Commission in the case of any other judge.

Notwithstanding the fact that these two countries have a republican form of government, there is a close similarity on their provisions relating to removal of judges, with this material difference with the provisions in the Constitution of Belize: as I have mentioned earlier, some authority or the other has to make a representation to the President (which could reasonably be read in the Belizean context as the Governor-General) that the question of the removal of a judge ought to be investigated. In Belize, it is the Governor-General who considers that the question of the removal of a judge ought to be looked into.

The provisions in the Constitutions of these two countries have given rise to the need for their interpretation in two important decisions of their highest courts in situations bearing some resemblance and import to the application before me.

The first is the Guyanese case of Barnwell v Attorney-General and Another (1993) 49 WIR 88, and the Trinidadian case of Rees and Others v Crane (1994) 43 WIR 444; (1994) 1 All ER 833. More on these cases later.

In Belize, however, it is the Governor-General who is charged with the constitutional duty to consider the question of the removal of a judge of the Supreme Court whether for inability however so arising or misbehaviour before the referral of the question to the Belize Advisory Council. How the Governor-General arrives at the point of considering that the question of removing a judge ought to be investigated is not stated or specified. After consideration however, if he so decides, he then refers the matter to the Belize Advisory Council. The latter body, as a tribunal, will enquire into the facts of the matter and advise the Governor-General (sections 98(4) and (5) of the Belizean Constitution).

It is not clear whether the Governor-General is bound to follow the advice of the Belize Advisory Council in this regard; but the Belize Advisory Council may well advise that the judge should not be removed from office (subsection (6).

However in the exercise of his functions under the Constitution in the case of the question of the removal of a judge the Constitution stipulates that the Governor-General shall do so in his own deliberate judgment. But this, on the authorities, does not dispense with adhering to the principles of natural justice and fair play.

Where representation to the Governor-General that the question of the removal from office ought to be investigated is necessary, the Constitution says so and specifies who shall make the representation. Thus, for example, in section 105(8), "if the Prime Minister represents to the Governor-General that the question of the removal of a member of the Public Service Commission ought to be investigated, the Governor-General shall refer the matter to the Belize Advisory Council, which shall sit as a tribunal and enquire into the matter and report on the facts to the Governor-General. The same requirement for representation to the Governor-General that the question of removal from office ought to be investigated is to be found in sections 108(8) and 109(7) regarding the Director of Public Prosecutions and Auditor-General respectively. In each case, it is the Prime Minister who makes the representation to the Governor General.

There is, in the case of a judge of the Supreme Court, no requirement for representation to the Governor-General. This may well be for considerations of judicial independence. But by the constitutional provisions on judges, the question of removal is only referred if the Governor-General so considers. So long as his consideration and decision to refer to the Belize Advisory Council are attended or marked by procedural fairness in relation to the judge concerned, the referral would be difficult to assail.

In this application, the applicant complains that he has been denied natural justice as evinced by the Governor-General's letter of 2nd February 2001, from which he avers in paragraph 20 of his Affidavit of 13th February 2001 "I clearly understood from the Governor-General's letter that he had not only decided to refer the complaints to the Belize Advisory Council but also to suspend me from performing the functions of my office as a Justice of the Supreme Court this notwithstanding that to the best of my knowledge, information and belief, the Governor-General has conducted no enquiry whatsoever in an effort to determine whether or not the allegations made against me are even prima facie valid."

At the heart of this complaint is that there has been a denial of natural justice by the breach of procedural fairness, the Audi alteram partem rule: that there has been a determination or decision by the Governor-General to refer the complaints against him to the Belize Advisory Council and to suspend him even before his own side of the story was heard or told.

It has been rightly said that "That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca's Medea, enshrined in the Scriptures - ("Doth our law judge any man, before it hear him and knoweth what he doeth? (John, VII, 51), mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Book to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteen-century judge to the events in the Garden of Eden" - see De Smith, Woolf and Jowell, Judicial Review of Administration Action (5th ed. 1995) at pp. 378-379.

Natural justice is a principle therefore that is as old as the hills, if not before. It is reflected in all the religions of the Abrahimic tradition that even at the moment of the descent of humankind from the Divine presence, it was not a decision reached in the absence of natural justice: ". . .even God himself did not pass sentence upon Adam, before he was called upon to make his defence. 'Adam', says God; where at thou? Hast thou not eaten of the tree, whereof I commanded thee thou shouldst not eat?' - R v Chancellor of the University of Cambridge (1723) 1 Str. 557 at 567 per Forfescue J.

In both Rees v Crane, and the Barnwell cases, the decisions to make representation to the President regarding the question of the removal of the judges in those cases and to have the relevant Commissions sit to enquire into their removal were quashed because it was found that they had not been given an opportunity to be heard before the decisions were arrived at.

In the Rees case, Lord Slynn of Hadley delivering the opinion of the Board of the Judicial Committee of the Privy Council, quoted with approval the following from Sir William Wade in his Administrative Law (6th Edn.) at pages 496 and 497 :

"As the authorities will show, the courts took their stand several centuries ago on the broad principle that bodies entrusted with legal power could not validly exercise it without first hearing the person who was going to suffer. This principle was applied very widely to administrative as well as to judicial acts, and to the acts of individual Ministers and officials as well as to the acts of collective bodies, such as justices and committees. The hypothesis on which the courts built up their jurisdiction was that the duty to give every victim a fair hearing was just as much a canon of good administration as of good legal procedure. Even where an order or determination is unchallengeable as regards its substance, the Courts can at least control the preliminary procedure so as to require fair consideration of both sides of the case. Nothing is more likely to conduce to good administration."

Again at page 570, the learned author continues:

"Natural justice is concerned with the exercise of power, that is to say, with acts or orders which produce legal results and in some way alter someone's legal position to his disadvantage. But preliminary steps, which in themselves may not involve immediate legal consequences, may lead to acts or orders which do so. In this case the protection of fair procedure may be needed throughout, and the successive steps must be considered not only separately but also as a whole. The question must always be whether, looking at the statutory procedure as a whole, each separate step is fair to the person affected" (emphasis added).

I respectfully adopt this exposition of the law. Looking therefore at the relevant constitutional provisions on the removal of a judge of the Supreme Court (the statutory procedure if you will), I hold that a judge who is the subject of those provisions, as the applicant in the instant case, is entitled, ex debito justitiae, to he heard at every stage of the procedure. This is so, even though the relevant Constitutional provisions are silent on the right of the affected judge to be heard. Justice requires it and if the independence of the judiciary means anything, this must be so. For without the right to be heard at each stage of the procedure, a judge would be condemned unheard. This will be a terrible day for the independence of the judiciary, the due administration of justice, and the rights and freedoms of Belizeans the protection and enforcement of which are entrusted to judges of the Supreme Court. If a judge of the Supreme Court does not have the right to procedural fairness, natural justice, fundamental justice, fair play in action, rational justice, substantial justice, or call it by whatever name or simply justice without any epithet, in a critical area as his tenure of office or the question of his removal therefrom, then it simply boggles the imagination to fathom how he can truly, with independence and integrity, dispense justice let alone protect the rights and freedoms of all Belizeans.

Surely, the framers of the Constitution could not have intended this. I am therefore prepared to hold and I do hold that notwithstanding the silence of subsections (3), (4) and (5) of section 98 of the Constitution, a judge of the Supreme Court of Belize, such as the applicant, is entitled to natural justice, in particular the principle of audi alteram partem, procedural fairness, in relation to the question of his removal from office whether it be inability to perform the functions of his office for whatever cause or misbehaviour. The applicant therefore has a right to be heard before a decision concerning the question of his removal is arrived at. This right I also hold is applicable to all the stages of the process, viz, at the consideration stage by the Governor-General of the question of his removal from office whether for inability or misbehaviour ought to be investigated, at the stage where if the matter is referred to the Belize Advisory Council, (the referral stage).

What cannot be decided with certainty however, is whether the affected judge is entitled to be heard at the trigger stage. That is to say, should the complainants, in this case, attorney Lois Young-Barrow and the Bar Association of Belize, have first given an opportunity to the applicant to be heard on their complaints? This I surmise would be stretching somewhat the requirements of procedural fairness; and these are only binding on the decision-maker, not the person or body that brings the question to the attention of the decision-maker for consideration.

This brings me to the issue of the consideration by the Governor-General of the question of the removal of a judge: What must the Governor-General consider? How does he consider and what is the consideration to determine? As stated in subsection (5) of section 98 of the Constitution: "If the Governor-General considers that the question of removing a justice of the Supreme Court from office . . ." (emphasis added)

The section speaks of "considers" and not "decides". I wonder if it would have made any difference, for as Megaw J. said in the Hanks v Minister of Housing and Local Government (1963) 7 All ER 47 at page 55:

"A 'consideration' I apprehend, is something which one takes into account as a factor in arriving at a decision. I am prepared to assume . . . that, if it can be shown that an authority exercising a power has taken into account as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power, then the exercise of the power, normally at least, is bad. Similarly, if the authority fails to take into account as a relevant factor something which is relevant, and which is or ought to be known to it, and which it ought to have taken into account, the exercise of the power is normally bad. I say 'normally' because I can conceive that there may be cases where the factor wrongly taken into account, or omitted, is insignificant, or where the wrong taking-into-account, or omission actually operated in favour of the person who later claims to be aggrieved by the decision."

The gravamen of the applicant's complaint on this score is not that the Governor-General took into account some irrelevant consideration or failed to take into account some relevant consideration but it is simply that the Governor-General had decided beforehand that the question of his removal ought to be looked into by the Belize Advisory Council.

But an analysis of subsection (5) of section 98 of the Constitution to my mind, shows that it being in the nature of an impeachment proceeding, once the Governor-General considers that the question of the removal of a judge ought to be investigated, he the Governor-General is not merely a conduit: he has to be satisfied that the matter is sufficiently serious to warrant referral to the Belize Advisory Council. Both in deciding what material is necessary for such referral and in deciding whether to make such a referral at all, the Governor-General must act fairly and in conformity with the rules of natural justice.

It is not in my view, every fanciful complaint or material that the Governor-General must refer to the Belize Advisory Council - he has to look at the material or complaint to see if it is sufficiently serious to warrant referral. Having done so but before referral he ought, ex debito justitiae in keeping with natural justice, to hear what, if anything the particular judge may have to say, on the material or complaint: he must inform the judge of the complaint or material. Failure to observe this basic, decent and fair procedure would, in my view and on the authorities, vitiate any referral by the Governor-General to the Belize Advisory Council. This failure would infect every subsequent step thereafter including the inquiry as a tribunal by the Belize Advisory Council into the matter, down to and including any suspension of the judge from performing the functions of his office.

This is so because, the preliminary steps to refer a matter is an integral and necessary part of a process which may terminate in action adverse to the interests of a person who is entitled to be heard - see Wiseman and Another v Borneman and others (1969) 3 All ER 275, particularly Lord Wilberforce at page 285.

I would therefore hold that under subsection (5) of section 98, the consideration by the Governor-General of the question of the removal of a judge is stamped with the requirements of natural justice. This perforce, must be so in view of the stakes involved not only for the judge concerned, but for the higher interest of the public itself and the legal and constitutional stipulations of the independence of the judiciary. A decision by the Governor-General to refer the question may well ensue in the suspension of the judge - subsection (6) of section 98.

I therefore further hold that, notwithstanding the provisions of subsection (7) of section 98, that the functions of the Governor-General under the section itself shall be exercised by him in his own deliberate judgment, the consideration by the Governor-General under subsection (5) that may lead to a referral, is and must be attended by the requirements of natural justice.

I therefore now turn to the crucial question in this application: was there a departure from or a breach of the rules of natural justice in this case as evinced in the letter of the Governor-General of 2nd February 2001 to the applicant, as is contended for by him?

It is common ground between the parties that there has, as yet, been no referral to the Belize Advisory Council and no suspension of the applicant - see paragraph 14 of the Governor-General's Affidavit of 14th February 2001. I set out here the Affidavit of the Governor-General:

"I, COLVILLE N. YOUNG, Governor-General, of Belize House, Belmopan City, MAKE OATH AND SAY as follows:-

1. I am the Governor-General of Belize and have served in this capacity since November 17th, 1993.

2. As Governor-General of Belize my duties, responsibilities and functions are set out in the Belize Constitution.

3. One of my constitutional duties is, where I consider that the question of removing a Justice of the Supreme Court from office for inability or for misbehaviour ought to be investigated, to refer the matter to the Belize Advisory Council that is then constitutionally required to enquire into the matter, report on the facts and advise me whether the Justice of the Supreme Court ought to be removed.

4. By letter dated October 16th 2000, Lois Young-Barrow, Senior Counsel, wrote to me complaining about the behaviour of the Applicant in a particular case before the Supreme Court and requesting me to invoke my powers under the Constitution to refer the question of whether the Applicant should be removed from office to the Belize Advisory Council. A copy of the said letter is exhibited to the affidavit of the Applicant as "G.M. 2".

5. By letter dated October 30th 2000, Lois Young-Barrow again wrote to me making further complaints against the Applicant and drawing my attention to certain decided legal cases on the issue of the removal of a judge from office. A copy of the said letter is exhibited to affidavit of Applicant as "G.M. 2".

6. I did not bring the complaints of Lois Young-Barrow to the attention of the Applicant and neither did I refer these complaints to the Belize Advisory Council.

7. By letter dated January 30th 2001, the executive officers of the Bar Association of Belize wrote to me charging the Applicant with misbehaviour in the office of a Justice of the Supreme Court basing their charge on certain allegations contained in five affidavits accompanying their letter and inviting me to proceed upon the complaint in accordance with the Belize Constitution. A copy of the said letter is attached to the affidavit of the Applicant as "G.M. 2".

8. I reviewed the Bar Association's complaint along with the accompanying affidavits that included affidavits from a police officer who formerly served as driver for the Applicant and from a Senior Counsel of the Bar Association of Belize.

9. On the 1st day of February, 2001 I received a courtesy call from the Chief Justice of Belize and I took the opportunity to inform him that I had received a complaint from the Bar Association of Belize against one of the Justices of the Supreme Court, the Applicant herein.

10. Based on the gravity and seriousness of the allegations contained in the Bar Association's complaint and the accompanying affidavits, on the 2nd day of February 2001, I wrote to the Applicant attaching copies of the letters of complaint from Lois Young-Barrow and the Bar Association as aforesaid and informed the Applicant that in my opinion the complaints should be referred to the Belize Advisory Counsel. (sic)

11. I wrote to the Applicant on the 2nd day of February 2001, as aforesaid, in order to bring all the complaints I had received against him to his attention and in order to give him the opportunity to respond to the complaints.

12. By letter dated February 5th 2001, Oscar Sabido, Senior Counsel for the Applicant, wrote to me setting out what he styled as "skeletal arguments" on behalf of the Applicant, the thrust of which was that I had no jurisdiction to deal with the complaint and should remit it back to the Bar Association. Mr. Sabido requested fourteen days in order to make a submission on behalf of the Applicant before I took any further step in the matter.

13. By letter dated February 8th 2001, Kirk Anderson, also counsel for the Applicant, wrote to me advising me that he had filed a constitutional motion challenging the validity of my actions in respect of the Applicant and requesting that no further action be taken in the matter until the determination of the constitutional motion.

14. Since receiving the letter dated February 5th 2001, from Oscar Sabido, as aforesaid, requesting fourteen days to make a full submission on behalf of the Applicant, I have not taken any further step in the matter and I have not referred the matter to the Belize Advisory Council.

15. To date I have not received any further submissions, written or otherwise, from Counsel for the Applicant.

C. N. Young
____________________
COLVILLE N. YOUNG"

On the facts of this case therefore, there is no evidence from which I can find that the Governor-General has decided to refer the question of the removal of the applicant to the Belize Advisory Council. Admittedly, in his letter to the applicant the Governor-General states:

"It is my opinion that these complaints should be referred to the Belize Advisory Council under Article 98, subsection 5 of the Belize Constitution."

But this, in my view, is different from saying that he the Governor-General has decided to refer the complaints to the Belize Advisory Council. The evidence in this matter is that since that letter, there has not, in fact, been any referral by the Governor-General to the Belize Advisory Council nor any action by him in relation to the applicant.

This, with respect, in my view, is the material and qualitative difference between this instant application and the line of cases of the likes of Rees v Crane and Barnwell (supra). In this line of cases, the ratio for their decisions is that the relevant authorities concerned had taken decisions that were in fact detrimental to the applicant, without the opportunity first being offered them to be heard or to make representation.

This was so in the case of Barnwell (1993) (supra), where the Judicial Services Commission had made a representation to the President of Guyana that the question of removing the applicant from office ought to be investigated, without having afforded him an opportunity to appear before it or to comment in any way. This was in addition to the suspension of the applicant a few days later.

In Rees v Crane (1994), the applicant had been prevented from sitting in court by the Chief Justice and the Judicial and Legal Services Commission and the latter had represented to the President of Trinidad and Tobago that the question of removing the applicant from office as a judge ought to be investigated. All this was done without giving the applicant an opportunity to be heard.

In this application before me the evidence is that there has been no referral, no suspension nor any other action in relation to the applicant. To my mind therefore, the contention by the applicant that even before the Governor-General wrote him on 2nd February 2001, he the Governor-General had decided that the matter of his removal should be referred to the Belize Advisory Council and to suspend him is a preternatural rationalisation not supported by the evidence in this case.

The applicant for example says in his own Affidavit of 13 February 2001 at paragraph 18, that it was at about 3:30 p.m. on Friday 2nd February 2001 that he received a letter from the Governor-General forwarding certain complaints against him and he avers in paragraph 19 that that was the first time he had seen the complaints against him. But no where in any of the three Affidavits filed by the applicant in this matter, does he say that on the receipt of the Governor-General's letter with its attachments (the complaints) he wrote to the Governor-General about these complaints or that in fact his attorney had on 5th February, 2001 (three days after the receipt of the Governor-General's letter), written to the Governor-General in response on his behalf.

This letter from the Applicant's own attorney in response to the Governor-General's letter forwarding the complaints is instructive in this case, particularly so on the issue of whether the Governor-General had decided to refer the question of the applicant's removal to the Belize Advisory Council prior to sending the letter and whether the applicant was denied the opportunity of being heard on the complaints, as he contends.

It is worthwhile to reproduce this letter, and it reads:

"February 5, 2001

Dear Your Excellency,

Ref. Justice George Meerabux

I am instructed by the Honourable George Meerabux to acknowledge receipt of your letter dated February 2nd, 2001, forwarding certain complaints made to you by Attorney-at-Law Lois Young Barrow and the President of the Bar Association of Belize. While we have had insufficient time to prepare a full response and will be asking your Excellency to grant us additional time, certain points can be immediately made.

We are astounded by the irregular and unconstitutional procedure adopted both by Attorney Lois Young Barrow and the Bar Association in referring these "complaints" to your Excellency and asking your Excellency to invoke your powers under Section 98 of the Constitution. This amounts to gross interference in the judicial process and strikes at the very root of the independence of the judiciary guaranteed by the Constitution.

We note that the complaint of Lois Young Barrow in her letter of October 16th and October 30th relates to an ex-parte Injunction granted by Judge Meerabux in interlocutory proceedings. The substantive hearing of the same matter is still before the Chief Justice who is already seised of the matter. It is likely that an appeal from the decision will be made to the Court of Appeal which will have the opportunity to consider the legality or otherwise of Justice Meerabux's granting of the ex-parte Injunction.

Attorney Lois Young Barrow will have full opportunity to ventilate her grievances against Justice Meerabux before the court of Appeal and if necessary before the Privy Council.

The fact of the matter is that the case out of which Attorney Lois Young Barrow's complaint arose is still before the Courts and any action by your Excellency or by the Advisory Council at this stage would be grave interference in pending judicial proceedings amounting to a criminal contempt of Court. It is obvious that neither Attorney Lois Young Barrow nor the Bar Association have realized the serious implication of the course of action which they have asked your Excellency to take in this case.

As regards the bundle of documents sent to you by the Bar Association a serious irregularity has been committed by a body which professes to uphold the rule of law and the Constitution. The letter signed by the President of the Bar and the members of the Bar Committee purports to "charge" Justice Meerabux with misbehaviour and breaching the code of conduct. The Bar Association is a creature of statute and its powers and objects are set out in Section 40 of the Legal Profession Act. No where in this Section or anywhere else is it stated that the Bar Association can act as a disciplinary body for Judges of the Supreme Court or sit in judgment over the conduct of a Judge.

For the Bar Association to assume jurisdiction to charge a Supreme Court Judge with misbehaviour is irregular, outrageous and a complete nullity. It follows that as the Bar Association acted ultra vires in referring these complaints to your Excellency, your Excellency has no jurisdiction to deal with these complaints and must remit the same back to the Bar Association.

We should also bring to your attention that the matters raised in the correspondence raise complex legal and constitutional issues regarding the interpretation of the constitution and would need a determination from the Supreme Court. For example it will have to be determined whether the word "misbehaviour" referred to in sub-section 3 of Section 98 of the Constitution is restricted to matters relating to the Judge's behaviour in his office or whether it could also include acts of moral turpitude in his private life or criminal offences. More importantly it is our view that Section 98 sub-sections (3) (4) and (5) can be invoked only if there is proven misbehaviour by a Judge of the Supreme Court. These sections make no reference to "complaints" or allegations of misbehaviour.

We note from your letter that it is your opinion that these "complaints" should be referred to the Belize Advisory Council. We submit that you have no jurisdiction to refer mere complaints to the Advisory Council because Section 98 does not speak of "complaints".

What can be referred to the Belize Advisory Council is the question of "removal" and that question can only arise if there is already on record proven misbehaviour on the part of a Judge by a competent body having jurisdiction in the matter. We therefore strongly advise you that your reference of the mere complaints to the Belize Advisory Council would be irregular and unconstitutional. There are no rules made by the Advisory Council as to how to deal with a matter of this nature.

We would also submit that the Advisory Council is not the appropriate forum to deal with complaints of this nature which mainly refer to breach of the code of conduct contained in Section 121 of the Constitution. The appropriate body to deal with such complaints is the Integrity Commission established under the Prevention of Corruption in Public Life. Part IV of this Act deals with breaches of code of conduct and sets out the procedure for hearing complaints. We draw attention to Section 22 of this Act which states that any allegation that a person to whom this part applies (and it does apply to Judges of the Supreme Court who are public officers by virtue of Section 131 (3) of the Constitution) has committed a breach of the provisions of this part shall in the first instance be made to the Integrity Commission before it is other wise published. The Bar Association compounded the irregularity firstly by "charging" a Judge of the Supreme Court with breaches of the code of conduct without jurisdiction and then referring it to the Governor General instead of the Integrity Commission.

We should also mention that we shortly intend to move the Supreme Court for an authoritative interpretation of the provisions of the Constitution set out above and we would ask your Excellency to refrain from taking any action until the Supreme Court has determined the constitutional issues raised herein.

The above are our skeletal arguments and we would crave your Excellency's indulgence to grant us fourteen (14) days to make a full submission on behalf of our client before your Excellency takes any further action in the matter.

In view of the serious implications of this matter and the possibility that substantial damages may be awarded against the Government resulting from any course of action detrimental to our client which your Excellency may take in this regard we are copying this letter to the Hon. Prime Minister and Minister of Finance and the Hon. Minister of Budget Planning, Investment and Trade.

Yours Respectfully,

O A Sabido

OSCAR A. SABIDO
Attorney for Justice George Meerabux

c.c. The Hon. Said Musa
Prime Minister and Minister of Finance
Prime Minister's Office
Belmopan City
Cayo District
BELIZE

c.c. Hon. Ralph Fonseca
Minister of Budget Management,
Investment and Trade
Belmopan City
Cayo District
BELIZE"

Apart from the legal arguments in this letter, which, in a way, presaged the issues canvassed in this application, it is clear that the applicant is by this letter from his attorney, among other things, asking for time to make "further" representation to the Governor-General. This certainly is not a letter complaining about any decision or action of the Governor-General. It challenges the jurisdiction of the Governor-General to refer as it calls it "mere complaints" to the Belize Advisory Council and states what is, in the author's opinion, the question that can be referred to the Belize Advisory Council on the issue of the removal of a judge and excoriates attorney Lois Young-Barrow and the Bar Association. But most significantly, nowhere in the letter is the Governor-General charged with having made a prior determination to refer the matter to the Belize Advisory Council without reference to the applicant. Instead, the letter asked for time to make a full response and craved "your Excellency's indulgence to grant us fourteen (14) days) to make a full submission on behalf of our client before your Excellency takes any further action in this matter."

It is therefore difficult not to hold on the factual matrix of this case that the applicant, contrary to his own contention, has not been denied the protection of the law or that there has not been breach of natural justice in relation to him by the Governor-General. He has nonetheless chosen to come to Court to assert his right. This he is perfectly entitled to do.

The evidence however is that the Governor-General has not, as yet, decided to refer the matter to the Belize Advisory Council, nor has any other action been taken in relation to him. The ball, as it were, is still in the applicant's court; but instead of returning it by way of further representation or full submission as promised by his attorney, he has decided to leave that metaphorical court and come to this Court. This, as I said, is his right.

The applicant however, can hardly complain about not knowing what materials may be referred, if at all, to the Belize Advisory Council, or that he was denied the opportunity of seeing them and of being heard before referral to the Belize Advisory Council. Indeed, his attorney no doubt on instructions, has commented trenchantly on some of the materials and called the reply on behalf of the applicant to the Governor-General as "skeletal arguments."

The evidence in this case is that the Governor-General has not referred anything to the Belize Advisory Council. These factual considerations, as I said earlier, take this case out of the purview of the line of cases like Rees v Crane.

To contend therefore as the applicant does, that because the Governor-General did not ask him to respond to the complaints but merely informed him "it is my opinion these complaints should be referred to the Belize Advisory Council under Article (sic) 98 subsection (5) of the Belize Constitution", that he clearly understood from the Governor-General's letter that he had decided not only to refer the complaints to the Belize Advisory Council but also to suspend his functions as a justice of the Supreme Court (paragraph 20 of Applicant's Affidavit of 13 February 2001) is manifestly to fly in the face of the evidence in this case.

In my view, on the evidence, the Governor-General's letter to the applicant was no more no less than that the question of referral to the Belize Advisory Council was being considered and that the applicant was given the opportunity to see the materials that form the basis of the consideration.

The Governor-General's letter was certainly not a "Dear John Letter" to the applicant and it did not need expressly to invite him to respond. It was on the contrary, a wake-up call. It gave him clear notice of the complaint, and a clear opportunity to respond. And respond the applicant did, through his attorney three days later, by the letter I have reproduced above.

In my view, if the applicant had focused on the materials forwarded along with the Governor-General's letter instead of focusing on the providers of the materials, he could perhaps have helped the Governor-General and convinced him that the materials had prima facie, no sufficient basis in fact and were not sufficiently serious to warrant a referral.

Be that as it may, it is difficult to hold, on the evidence in this case, that the Governor-General was guilty of procedural unfairness to the applicant. On the contrary, the letter forwarding the complaints and their annexes to the applicant speaks of the clear manifestation on the part of the Governor-General to observe the rules of natural justice in relation to the applicant. In short, to see fair play in action: the applicant should see what is being alleged against him which together with his reply, if any, may be forwarded to the Belize Advisory Council if and when the Governor-General so decides.

That the Governor-General expressed his opinion that the complaints alleged against the applicant should be referred to the Belize Advisory Council cannot be taken reasonably to mean or even imply that he had made a pre-determination that those complaints were both genuine or well-founded; otherwise why bother to write to t he applicant at all. In my view, and based on the evidence, by writing to the applicant, it was intended by the Governor-General and it can only reasonably be supposed to mean that he wanted to elicit a response from the applicant. This doubtless, in conformity with the rule of natural justice, audi alteram partem. The Governor-General's opinion did not vitiate this fulfillment: the applicant was given all the opportunity to respond before any action has been taken by the Governor-General.

In the result, I find no merit in the contention of the applicant that he was denied the protection of the law and that there was a breach of natural justice in relation to him.

Finally on this point, the headline story in one of the publications in the media as annexed to the Affidavit of 13th February 2001 of the applicant would tend to suggest that it was already decided to refer the matter concerning the applicant to the Belize Advisory Council, when in fact the story was simply reporting the filing by the Bar Association of Belize of complaints with the Governor-General against the applicant. However, I take judicial notice that the said publication is not a mouthpiece for the Governor-General, nor does it represent an official release from Belize House, Belmopan the official residence and office of the Governor-General. I had earlier in this judgment spoken of the need for media responsibility, and my hunch is that this application was launched as a direct sequel of the press coverage. But this cannot be laid at the doorstep of any of the Respondents in this application.

In this application, the applicant has therefore sought to read in the Governor-General's letter his own understanding that a decision had already been made to refer his matter to the Belize Advisory Council without first hearing from him. But as I have shown, this understanding or conclusion by the applicant is not borne out by the factual matrix of the developments so far in this case. On the contrary, the evidence is the other way: the applicant is still a judge and has certainly not been suspended. There is no evidence of any referral by the Governor-General to the Belize Advisory Council; his attorney has in response to the Governor-General's letter asked for some time to make further submissions. So at this point in time, things are still at the preliminary stage and so far the relevant authority, the Governor-General, has acted with procedural fairness to the appellant. I conclude on this point therefore that there has been no denial of the protection of the law occasioning a breach of natural justice in relation to the applicant.

I agree with the submission of the learned Attorney-General that any reasonable Governor-General reasonably directing his mind to the materials before him would have acted the way the Governor-General acted in this instance by writing as he did to the applicant.

I now turn to the next cluster of issues:

2. IS THERE A DUTY ON THE GOVERNOR-GENERAL TO INVESTIGATE THE VALIDITY OF THE ALLEGATIONS IN ORDER TO DETERMINE WHETHER THEY FORM A PROPER AND SUFFICIENT BASIS FOR THE PURPOSES OF SECTION 98(4) OF THE CONSTITUTION; AND THE EFFECT OF THE ABSENCE OF PUBLISHED RULES OF PROCEDURE OF THE BELIZE ADVISORY COUNCIL UNDER SECTION 98(5) OF THE CONSTITUTION?

These two issues were argued together for the applicant. The applicant contends that the Governor-General has made a decision to refer certain unproven allegations against him to the Belize Advisory Council without first determining their validity when he ought to have undertaken an inquiry to determine whether at least a prima facie case exists for possible removal of the applicant from office. Moreover, the applicant contends, the Belize Advisory Council ought only to consider the question of removal of the applicant from office as distinct