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Joined: Nov 2002
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GOB Vindicated in Privy Council

[Linked Image] In August of 2008 - the Barrow administration introduced the Sixth Amendment to the Constitution in the House of Representatives. In the 20 months since then, the package of amendments has been tied up in the courts - the subject of multiple legal challenges. One of the most compelling has been the question of whether the government was obligated to hold a referendum before passing some of those amendments because they alter the fundamental rights granted to citizens under the constitution.

The Supreme Court and the Court of Appeal found that a referendum should have been held - though it was unclear at what stage. But dissatisfied with those decisions, government appealed to the Privy Council. Arguments were heard on January 18 and 19th in the UK with Senior counsel Lois Young appearing for the government and senior counsel Lisa Shoman for the citizens who had called for the referendum. A decision was received this morning and it vindicates government's position. It found that the Prime Minister is no longer under any obligation hold the Referendum and allowed the appeal.

It's the first win and a decisive one for government on what has been a lengthy back on forth on this controversial package of amendments. We spoke to both the Prime Minister and Shoman about the judgment. He claimed victory, while she claimed that a principle was established.

Hon. Dean Barrow, Prime Minister

"Well I am extremely pleased. I feel I am vindicated. I had criticized as you know the first instance judgment and in particular when the injunction had been issued by the Chief Justice. I see that the judgment makes clear that that injunction ought never to have been issued. The Court of Appeals' upholding of the Chief Justice is also roundly criticized, maybe roundly isn't the right word. I note that these Law Lords write in very muted, in a very well muted tone, but bottom line - it is a vindication of the position that the government held from the start and it is a victory that I will greatly savour and the way is now clear for us to proceed with the amendments."

Lisa Shoman, Attorney

"Citizens had a right to expect a referendum would be held as part of a consultative process. What the Privy Council said and we always agree, it wasn't a part of the legislative process as such but the Prime Minister had a duty and an obligation to consult with citizens before making these changes to fundamental rights and freedoms. In this case, that consultation didn't take place."

Jules Vasquez,

"There was a reasonable expectation, a referendum should have been held."

Hon. Dean Barrow,

"What it says is that, you have to try to interpret the old Referendum Act, and that provision, in such a way as to save it from being completely useless. And so the Privy Council agreed that it would maintain the proposition that the referendum would under the old act have been required but as a matter separate and apart from the passage by the legislature of the constitutional amendments."

Lisa Shoman,

"But what the Privy Council says is that this is consultative in nature only and government can ignore it at its political peril and they say so specifically. They also say that they have absolutely no doubt that citizens took this answer to ensure that the Prime Minister did not evade the responsibility that was placed upon him in the Referendum Act."

Jules Vasquez,

"The responsibility to consult though, it is not the responsibility to act upon anything the referendum says."

Lisa Shoman,

"Act upon such consultations correct."

Jules Vasquez,

"Then doesn't it point to an intrinsic defect and a disingenuousness in the Referendum Act that was legislated by your government?"

Lisa Shoman,

"I won't go so far. In every democracy there are steps towards legal reform that we have to take. I was asked at the Privy Council why is it that the Referendum law was passed and because I had been a part of those who were advocating for political reform I was able to say quite frankly to the Privy Council that it was undertaken because people were asking for a greater say in their governance."

Hon. Dean Barrow,

"To the extent that it was in the circumstances that existed then, some need to have an advisory referendum. I suppose that is some satisfaction for respondents but the central issue which is that any such requirement had nothing to do really, could not fetter the sovereignty of the legislature within the four corners of the constitution to change the constitution once the required majority was in place. That was the central issue, that is the central issue and that is what pleases me knowing."

So now that the legal challenge on the referendum has been dissolved, when will the package of amendments come into law? It's been passed by the House and the Senate and is awaiting the Governor General's assent.

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But Is Government Ready for the Sixth Amendment Changes?

[Linked Image] But even when he does sign, that will not automatically bring it into law. Remember, we said the amendments are sweeping? Well, that might be an understatement. Here's what they include: enacting a three term limit for Prime Ministers, allowing for a recall mechanism for bad acting representatives, shifting the balance of power in the Senate so that government no longer controls it, and giving the Senate more oversight powers.

That's reform with a capital "R" - and when it was passed in the first 6 months of the Barrow term - all was milk and honey. But in the intervening 20 months - government has been beset by difficulties and what seemed simple enough then, may be fraught with complications now. And that's why when we spoke to the PM today about enacting the sixth amendment package, he was cautious, circumspect, and frankly, seemed to be having second thoughts.

Hon. Dean Barrow,

"I will tell you from now that the intention would be to in fact provide a commencement date for such sections of the amendments as we think require immediate effect. The law even after assent will take effect on a date to be appointed by the Minister and it actually says different sections of the legislation can be brought into effect on different days. I will survey the landscape of the amendments and decide which sections I feel and the Cabinet feels require to be brought into force immediately. Other sections will have to wait until the appropriate time.

There has been such a long period that has elapsed since we passed this thing and had to delay because of all these challenges that we may well want to rethink certain positions. I am not saying that is necessarily the case but it is a possibility so I don't want to say exactly what will be brought into effect immediately until I've had a chance to consult with Cabinet."

Jules Vasquez,

"Speaking specifically for example about the amendment, the reform to the Senate which would substantially change the composition of that."

Hon. Dean Barrow,

"I figure I couldn't get anything by you know and I will not, now that you've put your finger on it, as I expected you would I won't dodge the issue. I have no intention until I've consulted with the Cabinet to bring that into force immediately and maybe the less said as to my reason the better but you've put it out there and like I've said, I won't try to skate around the issue. I don't see that coming into force, I don't see that as one of the first provisions that the appointment of a day for portions of the law to take effect would cover."

Jules Vasquez,

"Would you hazard a rough timeline?"

Hon. Dean Barrow,

"No I wouldn't. Like I said I haven't even had a chance to, and allow me to confirm what we all know that we all have our, we are all subject to being human, blood runs through our veins. The PUP fought these amendments tooth and nail, we had to go to the Privy Council, they would be a beneficiary of the provisions in the amendment that would cede control of the Senate to the PUP and the social partners. We had to wait so long to be able to bring into force any of the provisions in the law. I am saying, I don't think anyone can begrudge me the feeling that let them wait as long as the Cabinet thinks appropriate."

The NGO Community has selected Greg Cho'q as its candidate for the reformed senate. So, he is on deck, but our sense of things is that he might be that way, for a while. Choq has been vocal in his opposition to government's stance on Mayan land rights.

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