Amid a storm of public opposition to the 9th Constitutional Amendment Bill, which declares constitutional amendments unchallengeable by any court of law “on any ground whatsoever,” Prime Minister Dean Barrow has, on Friday, July 29, released a letter declaring that as the laws of Belize now stand, Parliament really has no limit in its power to change the Belize Constitution, and the court has no power to investigate or review constitutional amendments, except in cases where such changes are made without adhering to the proper procedures set out in the Constitution, under Section 69.
If that is the case, however, it is evident that the door is always open for Parliament to at least attempt to “fix” what the court makes pronouncements against, as it recently did in renationalizing Belize Telemedia Limited—which was cited as the main impetus for the amendment now at the center of public debate.
The Court of Appeal had just ruled the 2009 nationalization of Telemedia to be unconstitutional, and Barrow claimed that with the court having pointed out what it deemed to be the flaws in the nationalization, Parliament would again nationalize by correcting what the court said had been defectively carried out. The new law went further to change the purpose for nationalization, but has so far not sparked litigation as a consequence.
Barrow’s letter on Friday firmly declared that there can be no judicial review in court of “the merits” of changes to the Belize Constitution.
Parliament can never oust the jurisdiction of the court, declared Belizean attorney Audrey Matura-Shepherd, who has been participating in the public discourse on the issue of the Belize Constitution (9th Amendment) Bill, which the National Assembly will put to formal consultation as of next Wednesday, August 10.
Seeking legal redress or even asking the court to review acts of Parliament or the Executive is a right expressly preserved within the text of the Belize Constitution, but the Barrow administration is taking the stance that whereas such a right exists, it is limited to a challenge of only the process of constitutional change—not of the substance of what is being changed in the Constitution.
It is a view with which Matura-Shepherd disagrees, emphasizing that citizens should always have recourse to court redress in seeking the preservation of their fundamental rights and freedoms, as well as the preservation of Belize’s democracy.
“Of course, the courts can always examine, and make pronouncements on, Constitutional amendments on the ground of failure to comply with the procedure for amendment to the Constitution,” Barrow added in his letter.
He went on to declare that, “The position in Belize—even without the 9th Amendment—is clear. There is no limit on the power of the National Assembly to amend the Constitution, once the National Assembly acts in accordance with Section 69. And the Courts should have no power to strike down amendments properly passed under Section 69.”
Matura-Shepherd questioned: If there is already no limit to Parliament’s power to change the Constitution, why write it in the 9th Amendment?
Pointing to the case of the Pakistan Constitution, Barrow said that its Article 239 unequivocally states, “...there is no limitation on the authority of parliament to amend the Constitution, and... the Court must not entertain legal challenges against Constitutional amendments.[Emphasis ours.]”
Barrow notes that despite these provisions, “...countless cases [have been] brought in that jurisdiction attacking Constitutional amendments. The Courts have heard everyone...”
“The last thing we could compare to us is Pakistan,” responded Matura-Shepherd, in speaking with our newspaper.
She said she wrote about Pakistan’s troubles in a paper she did for law school, and they have had one coup after the next, and also have had their constitution suspended on multiple occasions.
Amandala has learned via information published in the CIA Fact-book that Pakistan’s constitution of 1973 was suspended in 1977, 1999, and 2007.
Matura-Shepherd said that the main issue for Belize is: “does [the change in the Constitution] infringe on rights?” She said that she is concerned about the principles of Belize’s democracy and separation of powers between the Legislature and the Judiciary.
“It is a breach of the rule of separation of powers; they can never tell the court not to hear the matter,” Matura-Shepherd said. Likewise, she said, the court can never tell a government to not legislate.
Back in 2008, the Barrow administration faced strong opposition and litigation in court over the Belize Constitution (6th Amendment) Bill—the main issues being Government’s decision to amend the then clauses of the Referendum Act, which required a national referendum in the event that Parliament proposed changes to the Constitution that would take away from the fundamental rights and freedoms of citizens.
One major right that was being targeted, according to the litigants, including the late Belizean millionaire Barry Bowen and the Belize Landowners Association, was landowners’ property rights, including rights to petroleum royalties, and a major source of contention was a proposal to axe access to the courts to challenge Government’s expropriation and compensation award to the property owner.
The matter was litigated all the way to the Privy Council level. However, some questions remain unresolved to this day, because by that time, the Barrow administration had already made changes to the constitutional provisions that made certain issues “moot.”
The Privy Council panel had noted that “...the Court of Appeal dismissed the appeal because the alteration to the Amendment Bill had rendered the appeal academic. The Court of Appeal did not, however, express any view as to whether the Amendment Bill in its new form was open to challenge...
“It follows that the question of whether the Chief Justice was right or wrong remains unresolved.
“If he was right to rule that clause 2 of the Amendment Bill, as it was before him, was unconstitutional, it seems likely that its predecessor, clause 3, was unconstitutional for the same reason.”
A new definition in the 9th amendment will also test whether any future litigant can raise such a query before the court, asking the court to pronounce on the very constitutionality of a proposed change to the Belize Constitution. Would a citizen be able to question whether a proposed change conflicts with guaranteed rights and freedoms in the Belize Constitution?
The 9th amendment notes that only provisions in laws other than the Belize Constitution can be “voided” if they conflict with preexisting constitutional clauses.
Prime Minister Barrow argues in his letter that, “The 9th Amendment is only spelling out the law as it currently is in Belize and every other Constitutional Democracy in the world, except for India. Those campaigning against the Bill, which we must never forget has the enshrinement of public utilities in state control as its principal objective, say two very wrong-headed things: that the unlimited power to amend, which the Constitution has given to Parliament, is a sure open-door to abuse; and that the Bill would deny access to court for anyone wishing to challenge a Constitutional amendment.”
Prime Minister Dean Barrow said, in concluding his letter, that “...the Government will consider itself bound by the outcome of the public consultation process.”