BTL Headquarters

“From the commencement of the Belize Constitution (Eight Amendment) Act, 2011, the Government shall have and maintain, at all times majority ownership and control of a public utility provider.” This one portion of a sentence in section 144 of the 8th amendment to the Constitution, and the preceding section 143 which simply defined public utilities, public utility provider, government and government shareholding are the only two parts of the eighth amendment that Supreme Court Justice Oswell Legall found were lawful. The entire remainder of the 8th amendment was severed and declared null and void.

When interpreting legislation, a Judge can sever the good from the bad, and if the good is able to stand on its own, the law is declared good to the extent that it is in conformity with, in this instance the Constitution. Bear in mind that the Supreme Law Clause of the Constitution specifically says this at Clause 2, “This Constitution is the Supreme Law of Belize and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

Justice Legall’s basis for holding portions of the 8th amendment null and void, is that those portions, “...are contrary to the separation of powers and the basic structure doctrine of the Constitution.”

Readers will recall the very heated debate that surrounded the passage of the 9th amendment, which, by the time it was enacted into law, ended up being the 8th amendment. The decision of former Chief Justice Abdullai Conteh in the Barry Bowen case, in which he introduced the concept of the basic structure doctrine, a concept borrowed from India, came under sharp criticism.

The concept essentially says that a Constitution can be amended by following the dictates of amendment in the Constitution, but it cannot be amended to the point that it offends the basic structure of the Constitution. That basic structure, according to Justice Legall, is found in the Preamble, which is the root of the tree from which the provisions of the Constitution spring, and which form the basis of the intent and meaning of the provisions.

Justice Legall also took the opportunity to strike down, parts of the Belize Telecommunications Amendment Act 2011, and the entire Belize Telecommunications (Assumption of Control Over Belize Telemedia Limited) Order, the order by which the Minister of Public Utilities took control over BTL. This was gazetted on 4 July 2011, but had retroactive effect to 25 of August 2009, the time of the first takeover.

All is not lost, however. The Belize Telecommunications Amendment Act 2011still survives for the most part. Section 2 (a) and (b) were declared null and void, which simply changed the effective date of acquisition from the date the order was published in the gazette, to the commencement date. The rest of the Act survives, which still gives the Minister the power to make orders with retrospective effect, section 2(e), the mode and method of payment of acquired property, section 3, even payment being subject to the exigencies of the public finances, section 5. And most importantly the Belize Telecommunications Amendment Act, 2011 while gazetted on 4 July 2011, also has a commencement date of 25 August 2009.

Two fundamental points must be noted at this juncture: firstly, the Government is constitutionally empowered to own a majority interest in public utility companies as of the date of enactment of the 8th amendment to the Constitution. Secondly, the Belize Telecommunications AmendmentAct 2011 empowers the government at section 2(e), a section specifically declared to be valid, to make acquisition orders with retroactive effect. The government therefore has the constitutional mandate, to own, and the legal basis to acquire. Much ado about nothing.

The Guardian