Last week Friday we told you about the landmark judgment from the Caribbean Court of Justice in Trinidad. The highest court in the land found that the settlement deed former Primer Minister and former Attorney General Francis Fonseca had signed with the Ashcroft-Allied British Caribbean Bank in 2005 was quote, , “illegal, void and contrary to public policy.”
But that’s not all the court said. We’ve gotten a copy of the 36 page judgment which is especially severe on Misters Musa and Fonseca.
It says, in paragraph 44, that the promises made in the deed and a subsequent letter, quote
“could entitle the Minister to implement the promises recorded in the Deed without the cover of parliamentary sanction is to disregard the Constitution and attempt to set back, over 300 years, the system of governance Belize has inherited and adopted."
In paragraph 53, the judgment adds a scathing rebuke; it says
“Prime Ministerial governance, a paucity of checks and balances to restrain an overweening Executive, these are malignant tumours that eat away at democracy. No court can afford to encourage the spread of such cancer.31”
It goes unto say,
“implementation of the provisions of the Deed, without legislative approval and without the intention on the part of its makers to seek such approval, is indeed repugnant to the established legal order of Belize.”
The judgment also discloses that the secret settlement deed of 2005 was followed up by a letter of comfort from the then Prime Minister and Minister of Finance Said Musa. That made some incredible concessions, as outlined in paragraph 35:
“the Minister of Finance “irrevocably confirmed” that all business and income tax obligations of the Companies would be governed by the terms of the Deed. The Minister also confirmed that the Deed had “irrevocably fixed” the rate of income tax payable by the Companies….notwithstanding anything contained in the Income and Business Tax Act to the contrary”
In paragraph 36, the CCJ concludes
“the Deed purported to create and guarantee to the Companies a unique tax regime that was unalterable by Parliament….The promises made by the Minister were thus intended to supplant and supersede all current and any future statutes enacted by the National Assembly."
Of, this they conclude in paragrph 42,
"The rights and freedoms of the citizenry and democracy itself would be imperilled if courts permitted the Executive to assume unto itself essential law-making functions in the absence of constitutional or legislative authority so to do. It would be utterly disastrous if the Executive could do so, selectively, via confidential documents."
It is very strong language from the court, and the Barrow Administration hopes that it will topple an entire raft of tax write-offs, offsets, guarantees, and settlement deeds that the former Prime Minister and Minister of Finance Said Musa gave to the Ashcroft Alliance.
But one deed that has already gotten a stamp of approval from a high court is the loan note giving a government guarantee to the Universal Debt. In 2011 the Privy Council over-ruled the Supreme Court and the Appeals Court and found that the loan note was valid and enforceable. At the time, former PM Musa used his platform in the House of Representatives to boast of his vindication –even if it was for saddling taxpayers with a 30 million dollar private debt.:
With the Privy Council now replaced by the CCJ as the highest court in the land – it is as yet unclear what direction government will go with this 2011 judgement.