Justice Michelle Arana is hearing arguments against the Chief Justice in his capacity of the Chairman of the Judicial and Legal Services Commission. As the Chairman of this Commission, Benjamin took action against the Director of Public Prosecutions, Cheryl Lyn Vidal when he excluded her from the meetings of the commission.
Justice Michelle Arana is hearing arguments against the Chief Justice in his capacity of the Chairman of the Judicial and Legal Services Commission. As the Chairman of this Commission, Benjamin took action against the Director of Public Prosecutions, Cheryl Lyn Vidal when he excluded her from the meetings of the commission. A suit against Benjamin was filed by the Belize Bar Association in late October 2019, challenging his decision to exclude Vidal. In the Supreme Court this morning Justice Arana continues to hear arguments as to why the Bar feels that Benjamin acted in contravention of the constitution. Attorney Andrew Marshalleck represented the DPP and briefed the media on this morning’s hearing.
Andrew Marshalleck, Attorney: “The argument it’s based on two sections of the constitution. Section 110 E II and 110 E III. Section 110 E II says who is to be the members of the commission. It says the commission shall comprise of, shall meaning mandatory has to include; Chief Justice, the Solicitor General, the Chairman of the Public Services Commission and the President of the Bar; so that section is beyond doubt, President of the Bar has to be on the commission the constitution mandates it. Subsection 110 E III now says – and it starts out with three critical opening words- it says ‘Subject to subsection two, any person who is a member of the National Assembly or is a public officer is effectively disqualified from being a member of the commission. Now that’s a disqualifying section indeed but what is the effect of the opening three words ‘Subject to subsection II’? It makes subsection three subservient to subsection II. It means that subsection III cannot displace who the members must be in accordance with subsection II. So the long and short of it when you apply all of that and I know that’s highest technical legal argument for you but you asked me a legal question, is that Mrs.Vidal as President of the Bar is entitled and must sit on the commission regardless of whether or not she happens to be a public officer which of course she’s the DPP.”
According to Marshalleck the Bar is claiming all decisions made excluding President Vidal are not valid as they were not made with her input or consultation as required.
Andrew Marshalleck, Attorney: “We say that those decisions are invalid. They’re all unconstitutional because the Judicial and Legal Services Commission which considered those issues and made those decisions was not properly constituted in that the duly qualified members thereof weren’t invited to attend and didn’t get an opportunity to participate in those decisions. The president of the Bar represents the views of the Bar generally in these types of decisions. They’ve proceeded for the last two years to make all of these decisions without any input whatsoever from the Bar association which is lawyers generally.”
Reporter: Sir but doesn’t that mean that that’s two years of decisions that need to be reversed ?
Of Course and they should have thought about that when they went on for two years without the president.
Reporter: So that is what you’re asking the court to do? The remedy that you’re seeking ?
Andrew Marshalleck, Attorney: “Yes. One of them is to recognize the invalidity of those decisions yes. On the issue of delay there are two ways of looking at it. If you look at it from their side looking at us they say we haven’t done anything and haven’t done it in a timely way, fine. If we look at it from our side to them it’s that they are under duty to act in accordance with the constitution and they proceeded not withstanding having resolve the issue in a fair and independent manner because asking one of their own members to give an opinion is hardly and independent approach to resolving an issue that they themselves raised. How do you expect a complaint to be raised about the qualification of the president of the Bar to sit in the commission, made by the commission they make the complaint and then they decide it and then they say ‘but court don’t do anything about it even if I was wrong because they didn’t stop me.'”
It is uncertain how many decisions were made by the JLSC since Vidal’s exclusion but the Bar is seeking to have them overturned.
Andrew Marshalleck, Attorney: “We have to do that all the time in small societies like Belize. The first thing is why is there a need to change hats? The DPP brings to those decisions a wealth of knowledge about how the criminal system works, that can be beneficial to the decisions of the commission. It is only those decisions that affect the DPP’s office directly that there would have been any kind of real conflict and if there was difficulty in shifting hats as they call it you deal with it by way of recusal from the particular decision, you don’t deal with it by throwing the president out the meeting room indefinitely into the future. You recuse yourself from participating in a particular decision in respect of which you may be conflicted and don’t know how to shift hats but bear in mind that the majority of decisions before the commission there would have been no such conflict, there would have been no need for shifting hats so what you’re doing is pointing to what would happen in a small minority of instances to justify the larger transgression which is complete exclusion. It doesn’t work.”
Justice Michelle Arana has reserved her ruling to a date to be announced.