AG’s powers and the right to hold public officers accountable

by: Carlos James, Esq. Fri, Jul 22, 2011

A recent judgment by the Caribbean Court of Justice (CCJ) has ruled in favour of the Attorney General of Belize taking legal action against two former Cabinet ministers for losses suffered by the State as a result of their wrongful exercise of lawful authority, known as misfeasance.{{more}}

Agreeing with the Court of Appeal in Belize in the case of Florencio Marin and Jose Coye v The Attorney General of Belize [2011] CCJ 9 (AJ), the CCJ may well have created a new limb or offshoot to the law of torts for the State to hold its employees responsible through the tort of misfeasance in public office, which is designed to target the deliberate and dishonest abuse of power by public officers.

The claim was filed against the two former Ministers of government alleging that, during their respective terms of ministerial office, they arranged the transfer of 56 parcels of State land to a company beneficially owned or controlled by one of them. The Attorney General’s case was that the consideration paid by the purchasing company was almost $1 million below market value and that this transaction was undertaken deliberately, without lawful authority and in bad faith.

The claim failed in the lower court, where the former ministers argued that at the instance of the central government, the claim did not avail the Attorney General, but on appeal, the Court of Appeal agreed and found in favour of the Attorney General that there was a loss of public property and that the Attorney General, as the guardian of public rights, was the person entitled to institute proceedings. An appeal to the CCJ by the former ministers was dismissed by a majority of three to two, who affirmed the decision of the Court of Appeal to reinstate the Attorney General’s claim.

This case before the CCJ is quite extraordinary in that the court has entertained a civil suit by a public authority against its own officers for wrongdoing in public office. Notably, the very imposition of the tort has always been to provide a remedy for the deliberate abuse of public office directed at an individual citizen or a class of the public. However, the consolidated judgment by our most senior judges has signalled that the tort now encompasses actions by the Attorney General, acting on behalf of the State, against its own officers, or former officers.

Until now, there has never been a case in any Commonwealth jurisdiction where a government or the State has sought to utilise the tort against public officials abusing powers conferred on them for their own financial gain; albeit by way of criminal proceedings for misconduct in public office, as in the case of a former local minister and the State: R v Williams 1986 WIR 129.

The CCJ’s ruling will no doubt have significant implications regarding the role of the State in the law of torts, which was of some concern to the minority on the bench comprising Vincentian Justice Adrian Saunders and president of the CCJ Justice Michael de la Bastide – they noted in their joint judgment that “there are powerful policy reasons militating against any such extension or departure.”

What is quite clear is that the ruling signals a new branch of remedy for the State which may open the floodgates for similar lawsuits in other Commonwealth jurisdictions where the State in its sui generis corporate composition can seek damages in the form of recovery for economic loss from public officers who are bent on robbing the State through misappropriation or ‘intentional’ inadvertence.

Interestingly, in the Commonwealth Caribbean, it will be welcomed by political head-hunters and AG’s – who are political opponents. The question as to whether the gates have been pushed open for herds of political attack and vexatious maltreatment through the back door of the judiciary, or whether the ruling forms part of this new matrix of judicial development is left to be seen. The precise scope of which is not yet settled. It is interesting to see how this development will apply locally after the findings of the Ottley Hall Inquiry.

Carlos James, LL.B, LL.M is a practicing barrister-at-law.