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#448362 - 10/09/12 08:23 AM Abundance Of Ashcroft Alliance Attorneys At Appeal
Marty Offline
The October sitting of the Appeal Court began this morning with a very heavy matter, and that is the constitutionality of the acquisition of BEL in June of 2011, and the re-acquisition of BTL of July 2011.

The first and second appeal cases were filed by the Government of Belize questioning the judgment from Justice Legall in which he ruled that the second acquisition was unconstitutional.

The respondents, The British Caribbean Bank and Dean Boyce and the Trustees of the Employees Trust, were also dissatisfied with that judgment because although Justice Legall ruled that BTL re-acquisition was unconstitutional, GOB remained in control of the company. Their view was that an order should have been given to force GOB to vacate the company and return it back to the former owners. So the judgment was appealed by both sides - which is unusual.

And in BEL matter, Fortis Energy International - former owner of the electricity company - was challenging the acquisition of the company by GOB, They made an application to Justice Legall to have the BEL acquisition challenged, but Justice Legall refused. They were granted leave to join this appeal in the BTL matter.

It was under those contexts the Appeal Court was rammed full with foreign and local attorneys, including Queen's Counsels Nigel Pleming and Lord Peter Goldsmith, up to a few minutes ago. Viewers may remember Lord Peter Goldsmith as the attorney that was brought in - supposedly - by Vaughan Gill & Ricardo Castillo to get the Appeal Court to restrain the GOB from signing the 9th Amendment into law in 2011.

You may also recall that he declined comment at that time, and tonight after the hearing was finished, we received the same experience once again.

Here's an excerpt of what took place just after the hearing - which finished at 6:30 this evening when we spoke to Government Attorney Denys Barrow:

Daniel Ortiz
"Goodnight gentlemen, is it possible I could get a comment sir?"

Denys Barrow - Attorney for GOB
"Appeal 18 and 19 you put those together - those are both by the government. In one instance it is against British Caribbean Bank and in another instance it is against Dean Boyce and the trustees of BTL Employees Trust. We have appeal and they have cross appeal and the civil appeal #21 is a completely separate one which is Fortis International relating to BEL compulsory acquisition."

"So, two separate acquisitions in one acquisition; the Telemedia acquisition - that was the acquisition of shares as well as the acquisition of the debt which the bank owns and allegedly owed by Telemedia. That is where you have those two appeals."

"Fortis is completely separate - the 8th amendment also captured or dealt with the Fortis/BEL acquisition."

Daniel Ortiz
"Sir, can you please tell us about your submission which you made to the court on this first day of argument."

Denys Barrow - Attorney for GOB
"My submissions were essentially were arguing that the acquisitions were in fact validated or given constitutional strength by the 8th amendment to the constitution which you will recall caused a great deal of discussion, anxiety, differences and discussions in the country of Belize and we are saying that the effect of that 8th amendment was to put this acquisition beyond controversy, beyond dispute, beyond challenge. They are saying in their written submissions that this is not so - that there are limits even with a constitutional amendment on what you can do and they are saying that what was purported to be done was not in fact validly done and that therefore the court as Justice Legall did should strike it down."

Daniel Ortiz
"Sir, we have Mr. Lord Peter Goldsmith - he is saying that the appeal court has already decided on this matter and this new re-acquisition is the same re-acquisition. What is your view on what he has submitted to the court in relation to that sir?"

Denys Barrow - Attorney for GOB
"He needs to say that because otherwise he would have to accept that the acquisition which was done over in 2011 for differently stated reasons are and what he is saying is that you have stated reasons in 2009, so whatever you state in 2011 you are bound by what you said in 2009. We of course do not accept that."

Viewers may remember that the Aschroft Alliance made an attempt to get the newly appointed Justice of Appeal, Samuel Awich removed from the Court of Appeal.

That attempt failed, but it became an issue today when Pleming and Goldsmith submitted that this failed attempt now puts them at odds with Awich.

They tried to get him to recuse himself from this case, but ultimately it failed. We asked attorney Denys Barrow to explain. Here's what he had to say:

Daniel Ortiz
"The appellant British Caribbean Bank through its attorney Queen Counsel Pleming said that they would wish for Justice of Appeal Awich to recuse himself from sitting on this case. Can you tell us what the significance of that and what is exactly happen in relation to this application to the court?"

Denys Barrow - Attorney for GOB
"The application was refuse. The president came out at the end of a period of deliberation after the application was made and said that it was refuse - did not give any reasons and that is standard. He indicated that it was by a majority decision, so obviously of the 3 of them, one of them did not think that Justice Awich shouldn't continue."

"The application for his recusal was based upon a letter written actually by Lord Ashcroft, Dean Boyce and I forgot who was third writer - challenging the validity, soundness of the appointment of Justice Awich as a Justice of the Court of Appeals. They contended in that letter that he ought not to have been appointed and they say something which I would not care to repeat but they are looking to use what they said to say that this puts them at war or in conflict with Justice Awich and therefore Justice Awich should recuse himself because of what they did."

Daniel Ortiz
"They created their own problem and they are seeking for the panel pf judges to bail them out, so to speak."

Denys Barrow - Attorney for GOB
"They are seeking for the panel of judges to yield to the pressure which they have created and get Justice Awich to basically back down from a situation of their creation and the court said no."

Daniel Ortiz
"The number of attorneys which was present in court and the reams of paper which we are assuming is case law is any indication this matter will take a while to be argued to completion. Can you speak to us on that?"

Denys Barrow - Attorney for GOB
"It will not take a while because the court; the president and the other judges - quite properly decided that this will take I think 14 hours, is the figure he used and he has assigned a number of hours to each side and that will be the end of it. It is with respect proper case management for a court to do something like that."

Daniel Ortiz
"So, it is expected that this will finish Wednesday the latest?"

Denys Barrow - Attorney for GOB
"By Wednesday evening, the president was very clear on that. He had said Wednesday morning first and then because of the applications made this morning decided Wednesday evening. It has a definite time."

The arguments from all the attorneys are expected to finish on Wednesday evening.

Channel 7

#448544 - 10/11/12 08:16 AM Re: Abundance Of Ashcroft Alliance Attorneys At Appeal [Re: Marty]
Marty Offline

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."

Daniel Ortiz
"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."

Eamon Courtenay
"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."

Daniel Ortiz
"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."

Eamon Courtenay
"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."

Daniel Ortiz
"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?"

Eamon Courtenay
"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.

Channel 7


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