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#414575 - 08/23/11 09:38 PM Breakthrough on 9th Amendment
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Amandala
http://amandala.com.bz/index.php?id=11602

The Government of Belize announced today that it has decided to strike a compromise on the controversial Belize Constitution (Ninth Amendment) Bill, 2011, to make changes which would allay public concerns over certain features of the Bill—particularly sections that were proposed to outrightly declare a bar on court challenges to constitutional amendments passed without procedural flaws.

The proposed amendment has been subject to fierce and unprecedented public debate, while national consultations led by Parliament are underway.

The most controversial feature of the Bill seeks to put the acquisitions and utilities themselves beyond further court challenge by amending the Constitution to limit the judiciary’s powers to hear challenges on this and future amendments to the Constitution. This has raised the public’s fears of Parliament stripping the powers of the Judiciary in Belize’s tri-partite government system.

At the first public consultation on the Bill, held in Belize City on August 10, 2011, many speakers expressed support for the nationalization of the public utilities, but questioned the purpose of the amendment to Section 69, which has been deemed in legal quarters to oust the court’s jurisdiction to probe the substance of future constitutional changes.

At the consultation, the leading church organizations in Belize also expressed concerns about the proposed provisions that they said would declare a bar on certain court challenges. The Belize Council of Churches, led by its President, Canon Leroy Flowers of the Anglican Diocese of Belize, and the Association of Evangelical Churches, presided over by Reverend Eugene Crawford, have spoken out in particular against the court challenge provisions.

Today, the two church associations jointly announced the breakthrough, saying, via a press release published [attached], that Government had agreed to delete those portions of the Bill that appear to bar court challenges, specifically portions of the new subsection of Section 69 and new subsections of Section 145.

Based on Government’s decision, the churches say, they now support the amendment and call for the “remainder of the consultation process to be held in a civil and respectful manner.”

Canon Flowers told Amandala in a telephone interview this evening that the language of the Bill, as it stood prior to their meeting with the Prime Minister and members of the Constitution and Foreign Affairs Committee, which is in charge of public consultation and deliberation on the Bill, “frightened” his and Pastor Crawford’s organization, and he pointed out that while GOB “has the right to make laws, it is the right of all citizens to challenge that law.” He added that the churches did not wish to “pick a fight” with Government over the proposed legislation.

Flowers reiterated to us that their support for nationalization was “never in doubt.” What was, he said, was the issue of stopping court challenges of Constitutional amendments and what that would mean for Belize’s democracy: “If our democracy is to be vibrant and all-evolving, then the courts must be accessible to all,” he explained.

The Prime Minister told us tonight that he expects that, apart from those “on the payroll” of Lord Ashcroft, the majority of those who expressed reservations about the amendment when it included the now deleted provisions, will now come onboard.

Officially, the changes must be formally recommended by the Constitution and Foreign Affairs Committee, when the Bill is taken back to the entire House for passage, but at the public consultations the public will be informed of the specific provisions deleted from the Bill, which will no longer be under consideration. (See Government’s press release attached)

Prime Minister Barrow reiterated the Government’s position that the courts cannot hear challenges to the substance of a properly passed Constitutional amendment and eventually strike it down—the courts can only make judgments on whether such an amendment is properly passed, according to the law, because a properly passed amendment becomes part of the Constitution, he said.

As he put it: “The courts cannot say that the Constitution is unconstitutional.”

According to the Prime Minister, the removed sections “make no practical difference to the amendment,” except for allowing those in opposition—and particularly the Opposition People’s United Party (PUP)—to “create fear” by suggesting that Government was attempting to take the rights of ordinary citizens to seek judicial redress.

By acceding to the churches, said Barrow, Government recognizes the church’s position as “moral authority,” and as a social partner in the country’s affairs, and reassures the general public that it has nothing to fear now that the offending language has been removed.

For those such as the Bar Association and the PUP, who would wish the Government to go further and admit that the court does have the power of review of Constitutional amendments, said Barrow, that is “impossible to achieve and a contradiction of itself,” and they would not succeed in pushing it further.

Contrary to a prior declaration that the Court of Appeal ruling overturning the 2009 nationalization would be challenged at the Caribbean Court of Justice, the Prime Minister confirmed that GOB will not appeal the decision of the Court of Appeal, stating that he has confidence that the 2011 Act will be enshrined in the Constitution via the 9th Amendment and cannot be defeated.

Introduced in the National Assembly exactly one month ago, July 22, the Belize Constitution (Ninth Amendment) Bill has as its primary feature the introduction of permanent Governmental control over public utility providers: Belize Electricity Limited (BEL), nationalized just a few days prior, amid concerns over its ability to pay its Bills; Belize Telemedia Limited (BTL), nationalized in 2009 and again prior to the introduction of the Bill in a protracted dispute with those acting for and on behalf of former majority shareholder companies controlled by British businessman Lord Michael Ashcroft; and Belize Water Services Limited (BWS), returned to Belizean control several years ago after disputes with a foreign investor, Cascal.

Following its agreement with the churches, Government said in today’s press release that “public disquiet over the Bill’s purpose and effect” should be ended with the removals, while maintaining that the altered Bill “retained all the essential provisions. Therefore, it would still guarantee the impregnability of the utilities’ nationalization.”

In gaining the support of the two organizations, Government points out, it had assured them both of the objective of the Amendment—the entrenchment of Government control over the utilities—and of its stance that this is “in the national interest and a fundamental and proper expression of Belizean sovereignty.”

Public consultations are to continue this Wednesday in Corozal, ensuing in other parts of Belize for the next 10 weeks. GOB continues to call on the people of Belize for their support.

“What do you think the Barrow administration should do with the proposed 9th Amendment to the Belize Constitution, given the stated public concerns about it?” Amandala asked in its online poll last week.

The final results are as follows: The majority of respondents (43.65%) indicated that the Bill should be withdrawn altogether, with another quarter (25.79%) suggesting alterations to address the main public concerns; 16% say it should be put to a referendum, while just under 14% say it should be passed as is, without any alterations.


======================


Office of the Prime Minister
Belmopan, Belize, Central America
August 15, 2011

Rev'd Canon Leroy Flowers, President, Belize Council of Churches

Dear Canon,

I write in response to your letter to me of 4th August, 2011. That letter, which I've only seen today, sets out the position of the Council of Churches on the Belize Constitution (Ninth Amendment Bill), 2011. Since that position has now been widely circulated, I will likewise publicize this response.

The Council of Churches says it supports enshrining the nationalization of the utility companies in the Belize Constitution. But it does not support the changes to Sections 2 and 69 that the 9th Constitutional Amendment Bill proposes.

I have looked carefully at the arguments the Council advances for the latter position, but am sorry to say that I cannot agree with them. Indeed, it is hard to see how the insertion of public control of the utilities into the Constitution could be properly protected without the proposed new Sections 2 and 69. But I know that the Council met with the Executive of the Belize Bar Association prior to making its statement. And it is a pity that the Council did not also seek to hear directly from Government. For I believe that the Council has been led into grave error by the Executive of the Bar. That Executive has called for the courts to be given the power of judicial review over the merits of Constitutional amendments. And it argues that Section 68 of the Constitution, which gives the National Assembly the right to make laws for the peace, order and good government of Belize, is a limitation on the power of Parliament to alter the Constitution.

Now that power of judicial review over Constitutional amendments, which the Bar Executive seeks, is one the courts do not now have. The 9th Amendment Bill merely underlines that fact. Also, and there is case law on this, Section 68 of the Constitution does not in any way impinge on the authority of the National Assembly to amend the Constitution. It is only Section 69 of the Constitution that deals with the ability, including the limits on that ability, of Parliament to change the Constitution.

What the Council of Churches and other Belizeans should know as well, is that in taking its stance the Bar Executive acted contrary to the position of several of its members, including two of the most distinguished of the country's Senior Counsel. The Bar position, unfortunately mirrored now by the Council, is also wrong in the extreme. Further, it is rejected by the jurisprudence of every common-law Constitutional Democracy, with the sole exception of India.

In the end, then, the proposed changes to Sections 2 and 9 of the Constitution, which the Council opposes, only spell out (for the avoidance of doubt) what is currently the case under our Constitution and throughout the Commonwealth of Nations and in the United States of America: no court should be able to overturn an amendment to the Constitution so long as that amendment is properly passed. Of course, it is the Constitution itself that provides, in Section 69, for its own amendment and how any such amendment is to be done. When the Belize Independence Constitution was originally enacted as our supreme law, no one would have dreamed of suggesting that the courts, themselves enshrined by the Constitution and subordinate to it, could have struck down any portion of that Constitution. Indeed no one says even now that the original Constitution, in part or in whole, is subject to judicial review. But an amendment to the Constitution that is passed in accordance with the current Section 69 of the Constitution, itself becomes part of the Constitution. It is therefore a matter of the most elementary logic that if no part of the original Constitution can be upset by a court on the merits, the position must be the same for a properly passed amendment that then stands on exactly the same footing as the rest of the originally enacted Constitution.

Of course, there are members of the Bar that are highly politically motivated. And they have not scrupled to distort the facts and misrepresent the precedents in Belize and similar jurisdictions. As one example, it is not possible, except on the basis of complete dishonesty, to mangle the Privy Council decision in the Belize case of Vellos: Belize's then highest court was clear that no ordinary law, or court, could impose a referendum (or any other) requirement so as to fetter the Section 69 power of the Legislature to amend the Constitution.

Again, the cases from Uganda, Mauritius and Bangladesh cited by one member of the Bar, say only that clauses, including the most deeply entrenched clauses, in a Constitution must all be amended by their correct procedure. Thus, an amendment that expressly amends one clause by its required procedure, cannot by implication amend another clause that requires a different procedure. In such an instance the first amendment would be right and the second one wrong.

Also, it is just plain fraud for the Bar to suggest that the Indian case of Kesavananda, which says that the Indian Constitution can never be altered in ways that go against the so-called basic structure of the Constitution, has been accepted anywhere else in the world of common-law Constitutions. Rather, the position is as has been declared by Lord Nicholls of Birkenhead in the Privy Council case of Charles Matthew v The State:

"If the requisite legislative support for a change in the Constitution is forthcoming, a deliberate departure from fundamental rights may be made, profoundly regrettable although this may be. That is the prerogative of the legislature."

The matter, then, is beyond doubt. The three/fourths majority elected by the people of Belize have the power given by the Constitution to make any change to that Constitution, so long as it is done in accordance with the Section 69 provisions of the Constitution. And those provisions do not, unlike the provisions in the Irish Constitution or the St Vincent Constitution, require a referendum. If our Constitution is thereby to be seen by the Council of Churches as opening the door to abuse, there is one answer to that. The true safeguard against such abuse lies in our culture, traditions and the vigilance of the very people that have entrusted the current administration with the majority needed to amend the Constitution. But it is not for the courts to probe or change any duly enacted provision of the Constitution. That is for the people via their elected representatives. And that is why, notwithstanding the arguments of the Bar and the Council, courts cannot inquire into Constitutional amendments that the Parliament properly makes, and which then become part of the organically supreme Constitution. There is one last thing I wish to say. The whole point of putting control of the utilities into the Constitution is to make that control unassailable. But Lord Ashcroft, for one, is already seeking in the Caribbean Court of Justice to prevent the very passage of the amendment to Constitutionalize control. To allow him, even after passage, the ability to have a court strike down the amendment, would be truly to frustrate the sovereign will of the Belizean people. And the Council of Churches does seem to agree that it is the sovereign will of the people for the Constitution to be amended in order to safeguard our utilities. Logically, therefore, the Council, and all Belizeans, should be glad that we are trying to make absolutely sure that no one, not even a court, would be able to overturn a Constitutional amendment representing perhaps the most important policy and legislative decision since Independence. But impregnability, I say again, can only be guaranteed by the proposed additions to Sections 2 and 69 of the Constitution. And impregnability, ultimately, is what the 9th Amendment Bill is all about.

I close by making clear that Government is still disposed, even though it would be after the fact of the public position that the Council has already taken, to discuss this matter with the Council.

Sincerely,

Dean Barrow, Prime Minister

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#414620 - 08/24/11 03:16 PM Re: Breakthrough on 9th Amendment [Re: Marty]
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Opposition says refurbished 9th still allows for Parliamentary Supremacy

John Briceño

This Wednesday, the second round of consultations on the Ninth Amendment Bill will take place in Corozal. At the same time the Belize Teachers Union will be meeting in the nation’s capital also on the ninth. The two events will provide a sense of what the pulse of the people is to the amended Ninth. On Monday, Prime Minister Dean Barrow, under pressure from various sectors, and after discussions with the Belize Council of Churches and the Evangelical Council of Churches, agreed to “trim” parts of the proposed ninth amendment by striking out specific language as it pertains to the exclusion of the court from examining future constitutional legislation. Government’s release did not provide any meat to the specific language that was removed, but the Council of Churches said it reached agreement to withdraw the offensive sections that barred the court from reviewing constitutional claims. In some quarters, however, there is unease that government still retains the ability to amend parts of the constitution, without the possibility of legal challenge, as long as it has the required three-quarters majority. This morning Opposition Leader John Briceño weighed in his position on the matter by describing the withdrawal as merely a cosmetic change that would still allow for parliamentary supremacy over the constitution.

John Briceño, Party Leader, P.U.P.

“In the changes that they are talking about, as it is they are saying that they are removing certain sections but in the press [release] the prime minister is saying that they are going to probably make some other additions that we have not seen. And if that is going to be the case I think that there needs to be a reset of the button. The ninety-day process, since you are going to be changing what you are proposing, you have proposed July 24th I think it was and now you’re going to be changing the bill that you are going to be presenting to the Belizean public. I believe that we need to start the countdown to ninety days all over again. At this point we don’t exactly what is going to end up in the bill. He has said that we are going to remove certain, the sections that Belizeans found offensive but then he, if you noticed in his press release he was very clever in using the English language because he said, if you look on the third to last paragraph he is saying that the church leaders were convinced that the agreed trimming of the language. So yo di trim the language but we don’t know what is going to be [in its place] what you’re going to be replacing that trimming. And also the last sentence in his press release and I quote, he said, “It also reiterates that additional changes to further safeguard the bill may still be made depending on the outcome of the consultation process.” We don’t know what that’s going to be so that the prime minister now, when the ninety days is over and we go for the second reading, can bring in new provisions into the bill, things that we have not had a chance to really study and consult and be at a major disadvantage in the whole discussion; not only us as parliamentarians but even the citizens of this country.

There’s this general feeling that the people don’t trust the government. They don’t believe them that they are going to [do as they] say they are going to do. Why do we say that? [Well] simply because if the prime minister was serious about nationalizing any public utility or nationalizing any company or land or whatever it is that it is already enshrined in the constitution on Section 17 whereby all the prime minister had to do was to follow the process and it is obvious that he did not follow the process and now he has boxed himself in a corner. And now in attempting to solve that problem he is now using a sledgehammer because then it’s going directly at some of the basic rights and principles and freedoms of the Belizean citizen. Basically what is happening is that parliament is still going to be supreme over the constitution. There’s still going to be supremacy over the constitution when you look at keeping Section 2 and the section that was removed from Section 69:9.”


Attorney Elrington is also unimpressed by changes to amendment

Attorney Hubert Elrington is also unimpressed by the changes. He questions the government’s ability to properly conduct consultations and says the recent article in the Jamaica Gleaner placed the prime minister on a bad footing.

Hubert Elrington, Attorney

“Belmopan does not have the mental equipment to guide the conversation. What is up in Belmopan does not have the capacity mentally and intellectually to guide the national conversation. That is the crisis.”

Marleni Cuellar

“Now, even if you don’t feel they have the capacity, they do have the responsibility.”

Hubert Elrington

Hubert Elrington

“That is where we are in trouble. We are in trouble. The captain will take the ship on the reef; it’s inevitable. The Gleaner is saying that the leader of the people of Belize is acting like a man who has a dull axe and is trying to skin a cat in a room full of people and is wielding the axe wildly. That’s not the way to act. Now, so what they are telling you? Have you done the psychiatric test? Have you done the psychological test? Have you done the other tests? You need to do some tests quickly. You have to examine whether this is sanity or something that is not quite sanity. These are serious national issues. We are not dealing with any kind of personality here. The Gleaner is not dealing with any personality. The Justice of the Caribbean Court of Justice, he is not dealing with any personality. It is the worst kind of criticism and indictment that you can get of a prime minister in our kind of system. They have knocked him down to the floor. They have taken away everything that relates to his credibility and have shredded it in the press worldwide; look at Belize, look at what is going on there.”

As we said, the consultations go north to Corozal Town this Wednesday night.

Channel 5


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#414768 - 08/26/11 02:50 PM Re: Breakthrough on 9th Amendment [Re: Marty]
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BAR ASSOCIATION COMMENTS ON CHANGES TO NINTH AMENDMENT

The Bar Association of Belize today released its position on changes announced on Monday regarding the Belize Constitution Ninth Amendment Bill. As we have reported, the Prime Minister gave an undertaking to delete certain sections of the proposed amendments after a meeting with the Belize Council of Churches and the Association of Evangelical Churches. Today, the Bar Association applauded the Churches for convincing the Prime Minister to delete two of the three offensive provisions of the bill. While the Bar says this is a major step in the right direction by the government, it says the deletions were not sufficient to the Bar’s liking. In its release, the Bar explains that it has a major problem with the proposed amendment to sections two and sixty nine. The statement says, quote: the Bill, even after the revisions, still seeks to provide that amendments to the constitution by the legislature made in conformity of section sixty nine which sets out the procedure for amending the constitution, will not be capable of being found to be inconsistent with the constitution. Essentially, the legislature can pass any amendment to the constitution that it wishes and so long as government in doing so complies with the procedural requirements under section sixty nine of the constitution, the amendment must stay,” end of quote. The Bar says that government has argued that this is a clarification of what it considers to be the correct interpretation of the law. It points out however, that the binding decision of the Supreme Court in the Barrow Bowen et al versus the Attorney General does not agree with the government’s interpretation. The Bar says that other courts in other countries have similarly not agreed with the government’s interpretation. The Bar Association ends it statement by calling on government to refrain from amending section two and section sixty nine until such time as a definitive interpretation of the supreme law clause has been determined by the Caribbean Count of Justice, which is the highest court of the land. In related news, the BTL Employees Trust has written a letter to both the Belize Council of Churches and the Association of Evangelical Churches pointing out that while it applauds the effort which brought about the government’s decision to delete certain sections of the Bill, that the proposed ninth constitution quote, still presents a grave threat to Belizean democracy and fundamental rights and freedoms, end of quote. The letter also goes on to explain the background of the Employees Trust and ends by asking for an opportunity to discuss the matter with both church groups.

LOVEFM

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#414773 - 08/26/11 02:55 PM Re: Breakthrough on 9th Amendment [Re: Marty]
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Bar Association says remove 3rd offensive clause from 9th Amendment

The Council of Churches has played a major role in the government’s removal of certain ouster clauses that bars access to the courts in the proposed ninth amendment. But the Bar Association of Belize, another powerful group, is maintaining its position against the ninth. In a release today, the Bar recognizes the Church’s efforts, but says that only two of the three offensive provisions were removed and that the third also needs to be struck out. The release points out that the government has not agreed to delete the proposed amendment to Section two, which is the supreme law clause of the constitution or the remainder of the proposed section sixty-nine (nine). According to the Bar, the bill even after the revisions still seeks to amend section two and section sixty-nine to provide that amendments to the constitution by the legislature will not be capable of being found to be inconsistent with the constitution. The release says, “Essentially the legislature can pass any amendment to the constitution that it wishes and so long as government in doing so, complies with the procedural requirements under section sixty-nine of the Constitution, the amendment must stand.” The Bar goes on to urge the government not to amend Sections two and Section sixty-nine until the Caribbean Court of Justice has determined a definitive interpretation of the supreme law clause.

Channel 5


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#414785 - 08/26/11 03:30 PM Re: Breakthrough on 9th Amendment [Re: Marty]
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The Ninth
Written by: Godfrey Smith

If nothing else, the introduction of the Belize Constitution (Ninth Amendment) Bill 2011 by the Dean Barrow government has, for the first time since independence, widely prompted people to grapple with the actual text of their constitution.

Three of the bill's 7 pages seek to ensure that the government keeps at least 51% majority ownership and control of the recently nationalized public utility companies in perpetuity. The other three pages is an attempt to court-proof or judgment-proof the nationalization of the public utilities as well as all future constitutional amendments.

The emerging public consensus is that people are happy to entrench majority state ownership of the nationalized utility companies in their constitution; but they are unhappy with blocking the court's power to audit the constitutionality of bills that amend the constitution. They say the government could have entrenched majority state ownership of the utilities and stopped there without going on to include that mother of all ouster clauses.

There is an inherent contradiction in the emerging public consensus. People can't say that the courts should have the power to scrutinize every kind of bill enacted by parliament to ensure their constitutionality and, in the same breath, say that it's okay to entrench majority state ownership of the utilities in the constitution.

The courts have not finally decided whether the utility companies were lawfully nationalized. According to the emerging consensus, that right must not be taken away. How then does one move on to say that it's okay to entrench (for all time) state ownership of other people's property which a court may well decide in the coming months does not in fact belong to the state.

In other words, there is cognitive tension in encouraging a government to legislate that it can keep a majority ownership of property whose ownership has not yet been finally decided, and, at the same time, maintaining that the courts should not be shut out from determining such issues.

The inconsistency can only be rationalized by interpreting the consensus to mean that people desire that public utilities belong to the state in perpetuity provided it's lawfully nationalized and that the courts have their say. Otherwise, the consensus view, under the weight of its own contradiction, collapses upon itself.

No legal arguments need be deployed to arrive at a reasoned and coherent position on whether to oppose or support the 9th amendment. The government says that once it has a three-quarters majority in the House of Representatives it can amend the constitution in any way and no court can question that. The very constitution, they say, makes this so.

The Bar Association says that that view takes too literal an approach to reading the constitution. They say it is the courts that decisively interpret what a constitution is saying and that Belize Courts have already decided that, notwithstanding a supermajority, the House can't change anything it likes in a constitution.

Mr. Barrow has said that former Chief Justice Conteh got it "quite wrong" when he ruled that there were some things in the constitution that the House couldn't amend. Mr. Barrow says that the 9th Amendment merely "clarifies" what the constitution already says.

There isn't much point in the citizenry debating whether a super-majority in the House can amend the constitution in any way it likes without the court being able to audit it, because even constitutional lawyers are split on the issue. Only the CCJ can - and will - ultimately decide what the true interpretation of the constitution is.

Already, though, one judge of the CCJ has expressed a preliminary view that even with a parliamentary supermajority the House couldn't pass a constitutional amendment reintroducing slavery, for example. Such a constitutional amendment, he said, would itself be unconstitutional.

What the citizenry should attempt to collectively decide is whether a supermajority of politicians in the House should have that kind of power - regardless of what the constitution currently says or how it is interpreted.

The opening words of the Belize Constitution states: "Whereas the People of Belize..." It then goes on to set out several paragraphs of principles, beliefs and needs which the people believe would make for a good society and which the constitution should give effect to. Then the actual provisions of the constitution are set out to give effect to those principles.

If the constitution exists to give fundamental legal expression and protection to a set of principles, beliefs and needs upon which people want their society to be ordered and which reflect their core values, it follows that they should have a say on any fundamental changes to it.

A government that did not include a substantive constitutional amendment as part of its election manifesto commitments cannot legitimately claim to have a mandate from the people to make such an amendment unless it holds a referendum.

I would think that for Belizeans to agree that their politicians who have a three-quarters majority in the House should have the power to amend anything in the constitution without court audit, they must feel confident that those politicians would not abuse that power or that there are other checks and balances in the society to prevent such abuse.

By the very act of introducing the 9th amendment Mr. Barrow has demonstrated why his supermajority cannot be trusted to not abuse their power. Minister John Saldivar, one of the parliamentary supermajority, freely admitted the true purpose for the 9th. During nationwide public consultations on the bill, he said that the (controversial) sections of the 9th were intended to put the utilities "beyond the reach of Michael Ashcroft."

The 9th amendment, as it turns out, is nothing more than an ad hominem amendment designed to derail an ongoing court case that is going badly for the government. A government should never manipulate the provisions of a constitution to circumvent the courts because it wants to target and defeat an individual, even if he is a white foreigner. Any government capable of doing that is capable of similarly using the constitution against local opponents after it's finished with its foreign ones.

A government that cannot be trusted to honor Court of Appeal declarations that its actions are unconstitutional can hardly be trusted with carte blanche power to amend the constitution, especially when one of its first amendments is to nullify a court decision and then shut out the courts.

The government's pattern of behavior of publicly attacking and vilifying in the media reputable citizens of integrity who disagree with its actions dashes any hope that it is a government that can be trusted to wield unchecked powers responsibly and impartially. Do people really need any further evidence that their politicians are not yet ready to be vested with such expansive powers?

People should avoid the technical arguments of the debate and address the core issue: Has the majority in the House of Representatives shown sufficient political maturity and tolerance to be trusted with that kind of power?

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#414864 - 08/27/11 03:25 AM Re: Breakthrough on 9th Amendment [Re: Marty]
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The REAL FIX IT- A Satire
by Anthony Sylvestre

Was talking with a colleague yesterday. She said all this back and forth over the 9th Amendment was confusing her and not making much sense to her.

She said:” Since government has come clean and said that this 9th Amendment is to fix Ashcroft business, why doesn’t the government just say that in plain English in the text of the amendment? That would stop all this back and forth about our rights being lost and we can or cannot go to court. And most importantly, people wah stop di change their position pon this 9thAmendment, ‘cause some people really di tek this 69 pon wah next level.”

My friend, outta order and all, is a conscientious Belizean nonetheless. And as every conscientious and nationalistic Belizean individual, association or organization would do, she naturally went to an attorney of her choice to get some thoughts about helping her Prime Minister fixing Ashcroft business. After knocking heads with her attorney, she said, they came up with what follows below.

First, the government should amend the Preamble to Belize Constitution. The preamble, you know, is that part of the Constitution which have all these sounding words they call recitals; words like “affirm”,“recognize” .

Anyway, the proposal was to amend the Preamble of the Belize Constitution to say something like this:

Amendment to Preamble of Belize Constitution

"Recognizing that Michael Ashcroft, KCMG, have consistently frustrated the sovereign will of the Belizean People,

Recognizing further that the Courts of Belize have refused to acknowledge the Supremacy of the House of Representatives of Belize exercising its three-fourths supermajority and have in the past usurped the will of the House of Representatives by declaring certain Acts of the National Assembly to be unconstitutional,

NOW THEREFORE that the House of Representatives, with due authority and with the unanimous approval of the people of Belize is empowered to enact the Belize Constitution (Michael Ashcroft ) Amendment Bill, 2011, NOTWITHSTANDING its inconsistency with the Spirit of the Constitution of Belize.”

My friend then said that the Belize Constitution (Michael Ashcroft ) Amendment Bill, 2011 should read something like this:

“The Belize Constitution (Michael Ashcroft) Amendment Bill, 2011

An Act to amend the Belize Constitution to provide for the absolute and perpetual ban of Michael Ashcroft, KCMG, Lordof Chichester, from the country of Belize and to reassert the Supremacy of the House of Representatives above the Constitution, the law, God and man.

THE new section 143:

MICHAEL ASHCROFT, KCMG, Lord of Chichester, his heirs, successors, beneficiaries, natural and unnatural, SHALL henceforth on the coming into force of this Act, be prohibited absolutely and in perpetuity from engaging in, owning, leasing, managing, assigning, transferring, purchasing or exercising or transacting any act and thing whatsoever in connection with telecommunications or public utilities (as defined in law) in the country of Belize or their subsidiaries, affiliates or alliances."

Ahh yes, now that is the REAL FIX IT! I hope the Prime Minister now acts on my friend’s proposal.

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#415790 - 09/09/11 02:49 PM Re: Breakthrough on 9th Amendment [Re: Marty]
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Osmany Salas’ view on 9th Amendment

Dear Editor,

In the public discourse on the Ninth Amendment, I have been hearing a lot of interesting feedback, but also some ridiculous statements and comments. For example, a few people have been circulating Hitler-inspired caricatures of Prime Minister Barrow. That is not only childish and potentially libelous; it is also a gross misrepresentation and treads on dangerous ground.   

Others have taken to comparing Prime Minister Barrow to Venezuelan President Chavez, and saying that we will be going down the Venezuela road if the Ninth Amendment passes. Also, that the Ninth Amendment is taking Belize down the road to a dictatorship.

First of all, PM Barrow is no Chavez. In fact, he’s far from being a Chavez, as those who have followed the trajectory of that South American leader can attest. And, secondly, the Belizean people would never accept our nation to become a dictatorship. These comments and characterizations are pure scare tactics, irresponsible sensationalism … and serve to confuse the nation.

Having said that, I must hasten to add that I see the Belize Constitution (Ninth Amendment) Bill as a major distraction. This is being treated as a major national security issue, as implied in last week’s issue of The Guardian newspaper, where it is stated that “Control of BTL lies at the heart of [Ashcroft’s] plans to control Belize.”

Such statements are also scare tactics. In my opinion, this certainly cannot measure up against what I consider the greatest threat to our national security – the regular encroachment and incursions by Guatemalans into our national territory. I wish that we would be putting as much energy on addressing such territorial threat as we are placing on nationalizing public utilities and presumably placing such nationalizations outside the reach of the Courts.

But getting to the point at hand: the Ninth Amendment Bill is supposedly about the ownership of the public utilities – to be specific, securing majority government ownership and control of the public utilities at all times. The alternative to this is the privatization of the public utilities – that is, the divestment of majority shares to private investors.

The former (i.e., majority GOB ownership stake) seems to be a core principle of the UDP, while the latter (i.e., divestment to private investors) seems to be aligned with the PUP’s philosophy.

A Google search gives you all the information that you need about the differing philosophies and policies of the two major political parties related to ownership of public utilities:

The Belize Water Services Company (known as WASA, then as BWSL) was privatized by the PUP in 2001, and re-nationalized in October 2005 by the same PUP via a re-purchase (See http://edition.channel5belize.com/archives/10657).

In 1992, the Belize Electricity Board (BEB) was privatized by the PUP and became Belize Electricity Limited (BEL) (GOB kept 51% majority ownership). In 1999, another PUP government divested itself of its majority shares. As we know, BEL was re-nationalized in 2011 by the UDP (See https://www.bel.com.bz/about_history.asp).

The story with the Belize Telemedia is much more complex. In 1987, it was a UDP Government that oversaw the creation of Belize Telecommunications Limited (BTL) when the Belize Telecommunications Authority (BTA) merged with Cable & Wireless and the government vested the assets of BTA to BTL. (See http://www.belizetelemedia.net/our-history.php). The PUP engaged in or oversaw various sleights of hand in 2001, 2004, 2005, and 2007 which kept BTL under private ownership.

As we know, the UDP government nationalized the company, now known as Belize Telemedia, earlier this year.

The PUP policy on public utilities’ ownership(as reported by Channel 5 in March 23, 2001) can be encapsulated by the following comments: that the privatization of WASA in March 2001 “is part of government’s overall plan to divest itself of functions that it feels the private sector can do better. WASA is the third major utility to go on the block, following BTL and BEL”. The PUP Constitution also states that the PUP believes in “a dynamic economy that serves the public interest, and in which the enterprise of the market is joined with the forces of partnership and cooperation”.

To me, this sounds like a form of free market and capitalism, but where Government still retains a regulatory role.

The UDP policy seems to be to maintain/retain majority Government ownership and control of public utilities. Way back in 1984-1989, the UDP listed as one of its achievements: “…the modernization of Telecommunications with the Government retaining majority shares in the newly created corporation (Belize Telecommunications Limited)…” (from History, UDP Website).

In his 2010 New Year’s Message, the Prime Minister said: “Politically, the nationalization of Belize Telemedia was perhaps the greatest victory for Belizean sovereignty in the post-independence era. Of course, the enemy has mounted a series of rearguard actions. But our signal gain must be preserved. So locked in battle we shall remain until every last bit of neo-colonialist arrogance is driven headlong before us” (emphasis mine).

Should the philosophies and policies of political parties be enshrined into our Constitution if they have not been vetted by the entire Nation? In my view, enshrining majority Government ownership of public utilities into our Constitution is as inadvisable as enshrining the PUP philosophy on private investment and market enterprise into our Constitution. These are party policies – and each has its advantages and disadvantages.

And that is why these policies must remain so – party policies. We ought to vote for a party if we can stand to accept their policies – or at least if we prefer them to the policies of the other parties.

A second point: Proposed Section 69(9), even with the recent alteration, seems to be aimed at declaring the Supremacy of Parliament over and above the Constitution. The former Chief Justice has noted that “the legislative powers of the Legislature are not unlimited.” Our current Government seems to disagree.   

In his letter to the Council of Churches, the PM stated that he agrees with a position declared by the Privy Council which states: “If the requisite legislative support for a change in the Constitution is forthcoming, a deliberate departure from fundamental rights may be made, profoundly regrettable although this may be” (Lord Nicholls of Birkenhead in the Privy Council case of Charles Matthew v The State).

This is another reason why the Ninth Amendment has become so controversial. For the first time, we are realizing that, with the requisite majority, Parliament may undermine/adjust /revise/change our fundamental rights and freedoms as currently enshrined in our Constitution.

The Prime Minister states that Parliament has always had this power. This is what scares me! This is what reinforces my longstanding belief that our first-past-the-post (winner takes all) political system that we have in this country needs to be changed. It is grossly misleading for the UDP to claim, just as the PUP did in 1998-2003, that their 2008 landslide gives them the mandate of the people.

What about the 43.39% of the people who did not vote for the UDP? Do their views, wishes and aspirations not matter?

To conclude, the preamble to the Ninth Amendment Bill states that majority ownership and control of the public utilities is the main purpose of the Bill. If that is so, then I suggest that we use our current laws to make this happen. Let’s not use our Constitution to ensure (to use the PM’s word) impregnability – which I believe cannot be ensured even with the passage of the Ninth Amendment. I do not believe that passage of the Ninth Amendment will halt litigation!

If the Government is sincere about amending the Constitution for the betterment of our Nation, then let’s undertake a comprehensive Constitutional Reform/Review initiative that involves the party in power, the Opposition parties, the social partners, and other key stakeholders. Such an initiative should involve countrywide consultations as you are doing now. This is the challenge I put to you esteemed political leaders.

Thank you for the opportunity to share my views.

Amandala


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