The Belize Bank Limited v The Attorney General of Belize and others (Belize)

The apparent-bias question is whether a fair-minded and informed observer, with a reasonable grasp of how the system operates, would conclude that there was a real possibility of bias. The assessment is fact-sensitive. It must consider the statutory scheme, appointment process, tribunal composition, safeguards, candidate pool, professional integrity and oath, and the appointing minister’s role. Ministerial appointment and public statements about the underlying dispute do not inevitably create apparent bias where the minister is statutorily required to appoint, the judicial chair cannot be outvoted, the appointees are suitably qualified, and no particular agenda is shown. On appeal from local courts, regard should be had to their assessment of local public perception, with intervention only if their decision was clearly wrong.

The appellant received US$10 million from Venezuela, which the Central Bank considered should have been credited to the Government of Belize. The Central Bank issued a directive under the Banks and Financial Institutions Act. The appellant appealed to an Appeal Board whose two lay members had been appointed by the Minister of Finance, who was also Prime Minister and had publicly criticised the underlying transaction.

The appellant claimed that the Board could not provide the independent and impartial tribunal required by section 6(7) of the Constitution of Belize. Conteh CJ dismissed the claim on 1 August 2008. The Court of Appeal of Belize dismissed the appeal on 4 June 2009. The central issue before the Privy Council was whether the Board’s constitution created a real possibility of apparent bias.

1. Appeal dismissed by a majority of four to one. Lord Kerr delivered the leading judgment, with Sir Patrick Coghlin agreeing. Lord Dyson agreed in the result and largely in the reasoning. Lord Phillips was persuaded by the majority. Lord Brown dissented and would have allowed the appeal. The parties were given 28 days to make submissions on costs.

2. The applicable test, derived from Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, asks whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The observer must know the material facts capable of being known, possess a reasonable working grasp of how the system operates, and remain neither complacent nor unduly suspicious. The assessment is a composed and fact-sensitive judgment, not an impression formed from an incomplete picture.

3. The relevant circumstances included the statutory scheme, the limited pool of suitably qualified persons in Belize, the fact that the Minister was required to make the appointments, the recommendation by a career civil servant, the appointees’ qualifications and professional standing, their oath of office, and the fact that the judicial chairman had to be present in any quorum and could not be outvoted by the ministerial appointees. The Minister was not a party before the Appeal Board, and there was no evidence that the recommender or the Central Bank Governor had pursued a particular agenda.

4. Delegation under section 59 of the Interpretation Act would not have cured an appearance of bias if appointment by the Minister itself created one. The statutory obligation to appoint was instead a relevant circumstance for the fair-minded observer. The right of appeal on a point of law under sections 77(1) and 77(2) of the Banks and Financial Institutions Act was also relevant, although of limited weight and not decisive by itself.

5. The authorities concerning ministerial appointment of tribunals were fact-sensitive and did not establish a general requirement for outside appointment agencies or party participation. Applying the statutory and factual context, the majority concluded that the appointments did not create a real possibility that the Appeal Board would act other than properly. Lord Dyson added that the question concerned the perception of a fair-minded and informed Belizean and that the Board should be slow to interfere with the assessment of the Belizean courts unless their decision was clearly wrong.

6. Lord Brown considered that the Minister’s political and financial interest, his public statements, the appointment procedure, and the appointees’ connections with the Central Bank would make the Board’s objective impartiality appear open to doubt. He regarded the limited right of appeal as insufficient because the Court of Appeal could only remit the matter, not substitute its own decision.

1. Privy Council. The appeal was dismissed and advice was given accordingly.
2. Court of Appeal of Belize. The appellant’s appeal from the decision of Conteh CJ was dismissed on 4 June 2009.
3. Supreme Court of Belize. Conteh CJ dismissed the constitutional claim on 1 August 2008.