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Ninth Amendment to the Constitution: Tracking the Trails
 

Ninth Amendment to the Constitution: Tracking the Trails

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Ninth ammendment to the constitution contains: 1. the Bill, 2. Press Releases fromthe Chamber of Commerce, Bar Association, Government of Belize....

Ninth ammendment to the constitution contains: 1. the Bill, 2. Press Releases fromthe Chamber of Commerce, Bar Association, Government of Belize.

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    Ninth Amendment to the Constitution: Tracking the Trails Ninth Amendment to the Constitution: Tracking the Trails Document Transcript

    • NINTH AMENDMENT TO THE CONSTITUTION OF BELIZE: Following the Trails1. The Ninth Amendment2. Press Release—Bar Association of Belize3. Press Release—Belize Chamber of Commerce4. Open Letter from the Prime Minister of Belize August 2011
    • (www.belize.org)BCCI Calls on the Government to Withdraw the 9thAmendment BillWednesday, August 3, 2011If enacted, the proposed Ninth Amendment to Belize’s Constitution creates a very dangeroussituation, which is not contemplated by our Constitution. It allows the Legislature to haveabsolute power to amend the Constitution as long as it has the requisite two-thirds to three-fourths majority and follows the other procedural requirements under Section 69 to enable theamendment. In effect, we move from a Constitutional Supremacy where the laws passed by theLegislature must conform to the Constitution, to Parliamentary Supremacy where the Parliamentis supreme and can pass any law without reference to our Constitution. The potential for abuse isreal. If the Legislature has absolute powers it can take away any fundamental right or freedomfrom Belizeans by further amending the Constitution, and we will have no recourse to challengethe substance of the amendments.In other words, with the passage of the Ninth Amendment we risk losing the basic rights andfreedoms we as Belizeans consider the very essence of our democracy. We would be placingultimate control of our democracy in the hands of our elected representatives, without any checkon their powers. As with the recently withheld proposed Eighth Amendment (PreventativeDetention), we note that this current administration had proposed drastic changes to our personalliberties. With the Ninth Amendment, the Eighth Amendment can be reintroduced, and we wouldbe unable to challenge its substance in the courts.In our democracy all persons are equal before the law, and all persons are afforded equal rightsto challenge any law passed by the Legislature. While the Chamber recognizes the right of theGovernment to nationalize property, every person whose property has been acquired should havea right to access the Court to challenge that acquisition. If the Constitution is to be amended todeny that right to certain persons, it creates inequality in our law, undermines our democracy andsets new precedence to which we can all become victims.Further, the Chamber objects to the proposal that investment of Social Security funds, thepeople’s money, should now be considered Government shares in public utility companies.Government control and interference have been shown to be detrimental to the Fund, which iswhy the Chamber and other social partners fought in 2005 to take the Social Security fund out ofpolitical control. The Ninth Amendment seeks to reverse the peoples will as expressed at thattime and to deem the Social Security Board’s (SSB) shares in our public utilities as a part of theGovernment’s shareholding, with the requirement that if the SSB is to sell its shares, it must firstoffer the shares to Government. Aside from infringing on the SSB’s freedom to deal with itsproperty, this gives rise to possible conflict of interest and abuse.If the entrenchment of ownership of public utilities is all the Ninth Amendment sought toachieve, the Chamber would not be so concerned. However, when the Government goes beyondentrenchment and seeks to interfere with our fundamental rights as Belizeans, rights which if lostmay never be regained, this cannot be taken lightly.The Chamber calls on the Government to withdraw the Ninth Amendment and renews its call forthe Government to desist from taking any actions that offend the principle of separation ofpowers and our democratic institutions enshrined and entrenched in our Constitution. - End -
    • Government PRESS OFFICE BELIZE●Phone: 501-822-0094, 0092, 0759 ●Fax: 501-822-2671 ● website: www.belize.gov.bzJuly 29, 2011 Letter from the Prime Minster of Belize to the People of Belize Clarification to The Belize Constitution (Ninth Amendment) Act 2011Dear All,The competence, or lack thereof, of courts to review Constitutional amendments in countries withwritten constitutions that are supreme, derives from the text, language and provisions of the saidconstitutions. Where the Constitution does not expressly grant such a power to the courts, judicialreview of the merits of Constitutional amendments is not possible. Of course, the courts can alwaysexamine, and pronounce on, Constitutional amendments on the ground of failure to comply with theprocedure for amendment to the Constitution.In the Irish Supreme Court case of Riordan v An Taoiseach, the constitutionality of the NineteenthAmendment to the Irish Constitution was challenged. The applicant Dennis Riordan asked for adeclaration that “the 19th Amendment….is repugnant to the Constitution and is thereforeunconstitutional, null void, and inoperative”. The Court refused on the ground that a Constitutionalamendment…”is different in kind from ordinary legislation….A proposed amendment to theConstitution will usually be designed to change something in the Constitution and will therefore, untilenacted, be inconsistent with the existing text of the Constitution, but, once approved….under Article46 and promulgated by the President into law, it will form part of the Constitution and cannot beattacked as unconstitutional.”The position in the US, Canada, the Caribbean and Belize, is the same as in Ireland: except forprocedural non-compliance, no court can enquire into the merits of, or strike down, a Constitutionalamendment. The Constitution of Belize, in section 69, sets out exhaustively the manner in which theConstitution can be altered. Nowhere in the Constitution is any power given to the courts to add afurther requirement, such as a referendum. Therefore when ex-Chief Justice Conteh did so in the BarryBowen land case, he was quite wrong. And the Privy Council refused to follow him in the Vellos case.When Conteh gave the Bowen decision, he was following the ruling of the Indian Supreme Court inthe case of Kesavananda Bharati v State of Kerala. In that judgment it was held that the amendingpower in the Constitution, even if properly exercised procedurally, cannot be used to modify the “basicstructure of the Constitution”.But Kesavananda, which was extremely controversial in India, has been rejected everywhere elseexcept by Conteh in Belize. That is because, in the absence of express substantive limits on theamending power in a Constitution, Kesavananda implies such limits. But the Irish Supreme Court, theUS Supreme Court and the Canadian Supreme Court all refuse to imply such limits. As variousscholars have pointed out, it is logically impossible to accept the legal validity of implied limits whenthey have no textual support in the language and provisions of a Constitution.The position in Belize even without the 9th Amendment is clear. There is no limit on the power of theNational Assembly to amend the Constitution, once the National Assembly acts in accordance withsection 69. And the Courts should have no power to strike down amendments properly passed undersection 69. The 9th Amendment is only spelling out the law as it currently is in Belize and every otherConstitutional Democracy in the world, except for India. Page 1 of 2
    • Those campaigning against the Bill, which we must never forget has the enshrinement of publicutilities in state control as its principal objective, say two very wrong-headed things: that the unlimitedpower to amend, which the Constitution has given to Parliament, is a sure open-door to abuse; and thatthe Bill would deny access to court for anyone wishing to challenge a Constitutional amendment.If it is true that the unlimited power of the Legislature to amend the Constitution is an invitation totyranny, then that has been the position since 1981 when the Constitution came into force. And toargue about what, as a result, is possible in theory without accepting what is impossible in practice, isto proceed in error or deception. We share the same Constitutional democratic system as the bigcountries. And it is insulting to our people to suggest that there is any greater practical chance of theabuse happening here, as opposed to happening in Canada or the US. Just as in those two countries,there is in Belize the kind of democracy, tradition, and people power that is the ultimate safeguardagainst abuse.Then, of course, the 9th Amendment Bill does not stop any citizen from going to court. And thecampaigning Lawyers know this. The Bill says that… “a law passed by the National Assembly to alterany of the provisions of the Constitutions in conformity with this section shall not be open to challengein any court of law on any ground whatsoever.” That language does not mean that an applicant isunable to make a claim in Court; that he would be debarred from filing his papers in the Registry; orthat the court would turn back the suit and not hear the matter. The language does mean that a Court,and this is the position even without the Bill, should find against an applicant who seeks to strike downany amendment passed in conformity with Section 69.That no one is stopped from going to court is made clear by the Irish Supreme Court case earlierreferred to, in which the court did not refuse to hear the challenge to the Constitutional amendment.The Pakistan Constitution, in its Article 239, unequivocally states that (1) there is no limitation on theauthority of parliament to amend the Constitution, and (2) the Court must not entertain legal challengesagainst Constitutional amendments. Yet there have been countless cases brought in that jurisdictionattacking Constitutional amendments. The Courts have heard everyone.I hope this clarifies things and, needless to say, the Government will consider itself bound by theoutcome of the public consultation process.Sincerely,DEAN BARROW------------------------------------------------------------END. Page 2 of 2