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Twice nationalized, the high court in Belize has ruled that the government takeover of Belize Telemedia Limited (BTL) is "null and void." Love FM reported in its Evening News today that Justice Oswald Legall in an 80 page judgment delivered today, ruled that both the acquisition act and order of 2011 by which Government renationalized the company was null and void. The takeover of BTL by the Barrow administration started in 2009, when the Prime Minister took legislation to the House of Representatives saying that the takeover was in the public interest. That first take over was ruled null and void by the high court and the Prime Minister went back to the House of Representative in 2011 to renationalize BTL a second time. In his ruling today Justice Legall ruled that parts of the Belize Constitution 8th Amendment Act were unconditional, specifically that portion that took away the BTL Employees Trust's right of access to the court to determine their shares were really taken for a public purpose.

Patrick Jones

Supreme Court Rules against Nationalization

Since about 2003 the management of Belize Telemedia Limited has changed at least five times: from an Ashcroft Board to Prosser to a Dean Boyce board, to the Government of Belize, back to the Boyce board for a few hours and then back to the G.O.B. This morning anticipation hung in the air of Justice Oswell Legall's tiny courtroom as he delivered a massive eighty-page judgment on G.O.B.'s second nationalization of B.T.L. in July of 2011. The judgment went strongly against the G.O.B., declaring that the Order under which B.T.L. was acquired was null and void because Legall says, "there was no legal basis, no statutory authority that empowered the Minister to make that Order�" In relation to the Eight Amendment, formerly known as the Ninth Amendment, Justice Legall ruled that parts of it were unconstitutional, specifically that portion that took away Dean Boyce and the B.T.L. Employees Trust's right of access to the court to determine whether their shares were really taken for a public purpose. But having ruled that the G.O.B.'s second attempt to nationalize B.T.L. was unconstitutional, the Judge in a conclusion that left lawyers on both sides scratching their heads, concluded that he could not order a surrender of B.T.L. because of a provision in the constitution. But lawyers for both Dean Boyce and the British Caribbean Bank are saying that if the judge ruled that the second nationalization was unlawful in July of 2011 then there is nothing for the G.O.B. to maintain majority ownership of. A huge casualty for the government has been the ruling that those parts of the Eighth Amendment that attracted huge public controversy are unconstitutional null and void. The G.O.B. now lacks the super-majority in the house so it cannot reintroduce those controversial amendments. Following the judgment, attorney for the government, Denys Barrow, gave his take on the ruling.

 

Jules Vasquez, 7 News

"Sir, what is the upshot of what we heard just now in court; it was highly technical but at the end of it, my notes say that the claims that the GOB shall not have control are dismissed; damages and injunctions are dismissed; the claimants shall meet and enter into discussions about compensations. Is this a win for the Government of Belize?"

Denys Barrow, Attorney for Government

"This is hugely a win for the Government, but I need to get clear that the detailed basis of the win obviously the judge gave an extremely close and incisive analysis of what was before him. Until one sits down and reads what he has written, you cannot really state exactly the process by which he arrived at the conclusions that he made but as you said, the short it is that the government remains the owners of the property that it acquired; so the government has won."

 

Jules Vasquez

"He found that sections of the Eight Amendment are contrary to the separation of powers and the basic structure of the constitution; what significance does that have, not having those particular sections 221498 in front of you?"

 

Denys Barrow

"The significance is that the judge has gone with what has been established as a part of Belizean jurisprudence by Chief Justice Conteh and I think it was Mr. Eamon Courtney who I did that piece of advocacy that the Indian Doctrine, which says that certain things cannot be done to the Constitution, the judge has agreed that certain things cannot be done in relation to the Constitution even though the Constitution is the supreme law. As you will appreciate this is a decision which has been made at first insistence by the Chief Justice and now again by His Lordship as first instance and one imagines, that there will be an appeal by the other side to this entire decision and if there is an appeal, I imagine that the government will have great interest in taking before the Court of Appeal, this question that the Indian basic structure doctrine which does not exist in any other Commonwealth country that I know of can hold an existence in Belize."

Channel 5

Compensation only for Telemedia and B.E.L.

The court ruled on Monday for a second time that the acquisition of Belize Telemedia Limited was null and void, but fell short of ordering consequential relief. So it's possible that the government may need to reacquire the company for a third time. Attorneys for the former owners of Telemedia as well as the government both feel that they received a Supreme Court victory. But the government remains in the driver's seat of the Telecom Company. The Prime Minister says he is delighted with the Supreme Court judgment. Barrow says that he is now preparing to negotiate compensation regarding both B.T.L. and B.E.L. He told the media that he and Lord Michael Ashcroft had been in discussions for over a year and recently Fortis attorneys have also signaled an interest in dialogue.

Dean Barrow

"I agree with you Jose in that the judgment left a lot of questions answered, but the central issue, the core issue of the ownership of B.T.L. and by extension B.E.L. is not any longer in any dome. The government and people own those utilities. And while there was pronouncement against the specific assumption of control order made by the Minister, no relief was given; in fact the judge specifically and expressly refused any of the relief that the previous owners sought. In my view that then is checkmate. I don't see that we need to go back to the house to fix anything, but don't hold me to that. I will, of course, have to get the considered opinion of the lawyers. And if it turns out that to make an assurance down the shore, we should go back to the house, we will. If the judge had found that we didn't own the thing, we would have gone back to the house to reacquire it. We will never ever let go of the ownership of those utilities in name of this government and the people of Belize. Nobody can say to us now, well you know unless you can agree with us, we are going to seek some sort of enforcement order and try to get back the companies. But I don't want to be unfair to Fortis or the previous owners of Telemedia. Fortis approached us offering to mediate in good faith. We are at a point where they want some sort of a confidentiality agreement signed so that when the negotiations are concluded-or rather if the negotiations fail-that things they might have said or information that they might have released in the course of the negotiations will not be circulated by the government. We are trying to work on that in a way that is consistent with our obligations to the Belizean people. But while I think they also have a challenge in court and while they did not say that as an inducement for the government to agree to the negotiations, they will drop their claim; I have the clear sense that it is an absolutely good faith approach that they have made. So if I'm correct in that, the issue always would have been and remains simply then the question of how much we have to pay these people for what we have taken, but for what is now forever and eternally ours. Amen. In that context, I don't see how the judgment can make any difference. We are now arguing over numbers; over compensation and shared evaluation. And that exercise was not anything that was in the least bit referred to by the judgment nor could it have been. So really, sincerely, I think practically speaking; it makes no difference. In terms of the Telemedia people, again, I know that a great deal has been made of the fact that I have spoken to Michael Ashcroft. I will say to you that the approach was from Michael Ashcroft and this was an approach that was made well before the elections-maybe as long as a year before the elections. There have been intermittent little flurries that if you were an eternal optimist would have thought that it could have led somewhere. Up to this point, they haven't. But I absolutely as well do want to see negotiations proceed. Michael Ashcroft did every damned thing he could to cause us to lose the elections, you know. But it was never personal and it still isn't. We have Telemedia, we are never ever going to relinquish control, but we must pay the people for what we have taken and we must pay them a fair price. Question again is how to determine that fair price in a manner that both sides can be satisfied with. I will end by repeating what I said to you last week; that while the negotiations on Telemedia haven't gone very far, the effort is still very much alive and with any luck we will be able to progress that effort in the same way as we expect to progress the effort on the B.E.L. front."

A number of other issues were raised this morning and we'll have more later on.

Channel 5

8th Amendment had it wrong?

A court ruling was delivered on Monday, which had to do with the nationalization of Belize Telemedia Limited and the Eighth Amendment, which generated a huge public outcry last year. Prime Minister Dean Barrow and his government believed that once they had a supermajority in the House, they could pass any amendment to any law, including to the Belize Constitution. They then introduced the Ninth Amendment into the House to accomplish this in July of 2011. There were nationwide consultations, paid ads for and against it and even a song written against it. There was also a campaign that gathered over twenty thousand signatures to try to trigger a referendum on it. The Bar Association, the Chamber of Commerce and Industry and, at one time, the Churches had all come out against it. The Solicitor General had advanced the government's position saying:

Cheryl Krusen, Solicitor General

"We look at Section 5(a) where you have a simple majority. So essentially to amend the constitution as it now exists in section 69, there are certain provisions that require three-quarters majority, some are two-thirds majority and some are simple majority-that is what the present section 69 says. The existing section 69, as I have just explained it, remains-that has not changed. All of those provisions that I have spoken to you about still remain in the proposed ninth Amendment. The only difference to section 69 as the ninth Amendment would seek to do is to include a new subsection, which is subsection 9. And that subsection is a subsection which is seeking to remove all doubts by declaring that there is no limitation-whether substantive or procedural-on the power of the national assembly, which is the power given by the existing 69, to alter any provisions of the constitution and once it is passed in conformity with section 69, then it shall not be open to challenge in court-an ouster clause; the same thing like the Speaker of the House cannot be inquired into any court of law. That is what section 69 as is proposed does."

Despite the opposition, the eighth amendment was still enacted in October of 2011. Well, in Monday's court ruling, the Supreme Court settled the dispute. It ruled that the Government was wrong. Judge Oswell Legall said that the "Founding Fathers of the Belize Constitution could not have intended by section 69 to empower the government with required majorities, in the National Assembly, to make any amendment to the Constitution that would remove the fundamental pillars of democratic rule and the rule of law." The justice also said, "I therefore rule that even though provisions of the Constitution can be amended, the National Assembly is not legally authorized to make any amendment to the Constitution that would remove or destroy any of the basic structures of the Constitution of Belize." Well, this is the position that the Bar Association of Belize had been advocating all along. It is extremely embarrassing for the Government of Belize and no doubt that is not the last we will hear about the Eighth Amendment.

Channel 5