Arguments Conclude In Epic Ashcroft Alliance vs. GOB Appeal Case
Tonight, the matter of the BEL/BTL acquisitions has been fully argued at the Court of Appeal, which finished just before news time.
It is one of the biggest cases of national importance, because the former owners of the companies are not only pressing for the Appeal Court to strike out the nationalizations and the 8th amendment, but should the court rule in their favor, they want the acquisitions to be reversed completely.
So, the weighty case is now in the hands of the Court of Appeal, to determine whether or not the Government of Belize acted lawfully when they acquired the companies for a public purpose.
For the past 2 days of the trial, we've been only able to get comments from the GOB's side, but tonight, Eamon Courtenay, attorney for BCB and FORTIS spoke to us about a few of their arguments.
Here's what he had to say about their submissions to the court:
Eamon Courtenay - Attorney for BCB/Fortis
"I think that the case, as you know, is a very important case because, essentially what the Government has been arguing, is that with the 8th amendment to the constitution, they're able now to pass any constitutional amendment, and the Court doesn't have jurisdiction to determine whether or not that amendment to the constitution is valid. We, of course, strongly object to that, and we submitted to the Court that in a democracy, where the rule of law is paramount, everyone has to have the right of access to the court, and be able to challenge any type of legislation, including a constitutional amendment. What is, of course, of particular interest in this case is that the constitutional amendment sought directly to appeal, in a way, the judgment of the Court of Appeal, because - as you know - Telemedia won the appeal, and they passed the 8th amendment wiping away the judgment. We say that this is violating the rule of law; it is violating the constitution of Belize, and we asked the Court to strike down the 8th amendment. Then, I argued the case for Fortis, and the interesting thing there, is that the Fortis legislation was passed 4 days - on June 20, 2011 - before the decision of the Court of Appeal in the Telemedia case. The law that we used to acquire Fortis was virtually identical to the law to acquire Telemedia, which court found unconstitutional. So, I think that the Court has no choice but to find the nationalization of BEL unconstitutional. You may have heard - and I am sure that the media has been reporting - that the current Board and Management of Belize Electricity Limited - probably aware of what is going to come, is rushing to take steps to attempt to raise money by issuing shares and preference shares, debentures and all types of things. So, we have an emergency application in court to deal with that next week. It's like saying that you get a divorce. You get a divorce on the basis of cruelty, and then for some reason, you have a technical problem in the judgment, and it's set aside. And you start going for the divorce again; those facts are the same facts. You have to say the same cruelty, and that is the basis on which you go for your second divorce making sure that you don't do the same technical mistakes. In this particular case, the public purpose stated for the acquisition of Belize Telemedia Limited, the Court found was invalid, and in fact, it was a direct attack on the rights of Michael Ashcroft. That was the intention of the Government. Now, what did the Government do in 2011? They passed an amendment, but they said that it's retroactive to 2009. So, Prime Minister Barrow, in his speech in the House says that reason is the same. So, the point that we're making to the Court is that what you have is this Court giving a judgment, the Government not respecting, and then they realized that they're going to be challenged, they go and amend the constitution, attaching to the constitution certain sections which apply only to our clients. They don't apply to anybody else. So, in other words, those pieces of legislations are what we call targeted legislations. They are designed for the Government to win the case, and for our clients to lose."
But, as we reported, there is a possibility that the entire case - no matter how expensive, technical, and important it is - could be all for nothing.
While we had the opportunity, we asked Courtenay about why his clients pressed the issue of Awich sitting on the trial.
Here's how he explained it:
Eamon Courtenay - Attorney for BCB/Fortis
"British Caribbean Bank and the Employees Trust have made a complaint to the Judicial and Legal Services Commission to investigate whether Justice Awich ought to be a judge of the Court of Appeal. That matter is pending, and essentially, they were saying that since that was pending, you should not sit because obviously, we have a grievance; there is a dispute between the two parties. You are not an independent and impartial. And as you know, the Court refused that by majority. They gave permission to take that issue to the CCJ."
"Sir, but with the greatest respect, the issue of this recusal is an issue that your clients created by complaining to the Judicial And Legal Services Commission, and as a result, they caused Mr. Awich to be put in a terrible position - a position that he can't avoid, being a member on this sitting panel of judges, as well as being a member of the Court of Appeal. And the appearance of bias is arguably one that can be said that your clients created."
"Right, well, I think you need to get the facts straight. First of all, this complaint was made some time ago; that's the first thing. Secondly, when this appeal session was coming up, we wrote and pointed out to the Court that there are these cases pending that relate to the British Caribbean Bank and to the Employees Trust. Now, when the Court is determining who is going to sit on the panel, there are 4 judges, and we only need 3. So, since there is an issue between these clients and this particular judge, it was suggested to the Court that they should consider not asking Justice Awich to sit, and have Justice of Appeal Morrison sit, so that the issue would not arise."
"Sir, but that could be seen as clear attempt by your clients to interfere into the judicial system that is set in place by the Appeal Court."
"I understand what you're saying, but the situation is, 'Is there an appearance of bias?' That is the question. If there is an appearance of bias, the law says that the person should not sit."
"In relation to this, if your clients' purposes are not fully vindicated by this trial, it is arguable that you have opportunity to get this entire thing voided by going to the CCJ with this recusal issue. How do you answer to the argument that this entire case - as expensive, technical, and as in depth as it is - could be all for nothing?"
"That's not our fault is it? We didn't select the panel."
The Court of Appeal will come to their decision on this case, but they won't deliver it until the CCJ has decided whether or not Awich should have recused himself.
Courtenay believes that the CCJ appeal will be finished expediently.