P. M. loses in Court of Appeal: There must be a referendum “The Prime Minister ought to have submitted to the electorate for their approval the proposed amendments contained in the Sixth Constitutional Amendment Bill which are intended to amend the fundamental rights and freedoms under the Constitution before the bill is introduced into Parliament. Nonetheless, not having done so, the Bill must now be submitted to the electorate....it is not the ideal situation but under the Referendum Act the electorate is entitled to be afforded the opportunity to state whether they approve the proposed amendments.”
Those are the words of President of the Court of Appeal Elliot Mottley, contained in his decision of civil appeal no. 17 of 2008.
Readers will recall that at the first sitting of the House of Representatives following the UDP’s victory at the polls, the new Barrow administration introduced the Sixth Constitutional Amendment Bill, a package of changes to the Constitution which proposed, among other things, to empower the Belize Police Department to “preventatively detain” suspects, make reforms to the Senate and vest petroleum and mineral rights in the Government of Belize.
Simultaneously, the Government moved to amend the Referendum Act, to remove the portion of the law that mandated that a “referendum shall be held on any amendment to Chapter II of the Constitution which derogates from the fundamental rights and freedoms guaranteed.”
The Barrow administration subsequently removed the “preventative detention” clause amid public outcry and distaste. A citizens’ group, comprised of Alberto Vellos, Darrell Carter, Dorla Dawson and Yasin Shoman and represented by attorneys Lisa Shoman, Anthony Sylvestre and Kevin Arthurs, challenged the entire Sixth Amendment Bill, asserting that the Prime Minister had acted unlawfully in failing to call a referendum.
The case landed before the Chief Justice, Dr. Abdulai Conteh. Through its attorney, Senior Counsel Lois Young, the Government argued that the bill, which by then had been taken through all its stages, did meet all the requirements for changing the Constitution, namely the three-fourths majority in the House of Representatives, Senate approval and compliance with the 90-day waiting period. But in the end, Conteh sided with the citizens’ group finding that, “in introducing the two bills on the same day, there was a clear attempt to remove from consideration or deny an opportunity to the electorate of Belize to have a say on the proposed changes to section 5 and 17 of the Constitution. This I find unavailing because the relevant law provides for a referendum to be held on any relevant amendment.”
While he opted not to order the Government to hold a referendum, the CJ declared that he expected that a referendum would be held because the Referendum Act was still in effect when the Bill was introduced.
The Government immediately appealed the decision. That case was argued before President of the Court of Appeal Elliot Mottley and Justices Manuel Sosa and Boyd Carey in October 2008.
Again, Shoman, Sylvestre and Arthurs contended that the electorate did have a legitimate expectation to have their say on the changes. That was a position rebutted wholly by Senior Counsel Lois Young, who maintained that the Referendum Act had been repealed and therefore not applicable.
But in their decision handed today, the Justices upheld the CJ’s decision and agreed that the proposed amendments to the Constitution of Belize must be submitted to the electorate for its approval. Following the decision, attorneys Lisa Shoman and Anthony Sylvestre were clearly overjoyed. “We were very comfortable that it would be. We thought that not only the arguments we made were powerful arguments but in fact that the CJ’s decision was very well reasoned. The President of the Court has indicated that he has a slightly different view of the timing of when the referendum case should have been brought and when that legislation should have been challenged, which of course we will look very carefully at. But the point is here is that the Chief Justice’s decision has been affirmed and as far as we are concerned, this is a great victory for the people of Belize, for the citizens of Belize.”
What happens now appears to be uncertain. According to Young, her clients - the Attorney General and the Prime Minister, will have to read the decision before deciding what will be done. Shoman already has her own anticipations. “Well, we will expect that in terms of the sections that were affected, having to do specifically with land rights, which would be one, and having to do with any other fundamental right and freedom which was affected by the Sixth Constitutional Amendment Bill, that those would have to be looked at again and decisions will need to be made as to whether the government will withdraw those sections or whether it will put it to a referendum for the citizens of Belize to decide whether they wish those changes to be made.”
Mxed in with the victorious and celebratory atmosphere, however, is the reality that the Referendum Act that has got things to this point has been repealed in the House, meaning that any further proposals to the Constitution need not be submitted to the electorate. That fact was not lost on Shoman, “Clearly, what the citizens of Belize should be thinking about is finding a way to insist that the Government put back that safeguard into the legislation of Belize, i.e., safeguarding fundamental rights and freedoms with a referendum. We need it.”
There is also the matter of the case of the Landowners Association and Barry Bowen against the clause of the Bill which deals with land and mineral rights. The Chief Justice has already ruled that the clause would be unconstitutional because it removes the right of access to the courts for compensation within a reasonable time. The Government has already appealed that decision to the Court of Appeal. Today’s ruling could negate that appeal if the matter is put to the electorate and subsequently rejected by voters.
The Prime Minister is currently out of the country, but speaking on the Chief Justice’s ruling that a referendum should be held, on August 22nd at the House of Representatives, PM Barrow maintained that, “We disagree with the Chief Justice that there is any need to hold what we consider to be an idle referendum, but out of deference to his position as the head of the courts, we will not bring the amendments into force until this matter has been sorted out by the Court of Appeal. If the Court of Appeal says it agrees with the Chief Justice and we must hold a referendum, notwithstanding that it will make no difference to the law, we will do so because we are obliged to respect the courts of this country.”
(News Five transcript)(News Five transcript)
As we noted earlier, the Sixth Amendment Bill has been taken through all its stages and is only awaiting assent from the Governor General to become law.http://www.amandala.com.bz/index.php?id=8395