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An Open Response to the Prime Minister of Belize--by Lisa Shoman, Attorney at Law


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A Response to the Open Letter of the Prime Minister of Belize on the Ninth Ammendment to the Constitution by Atorney at Law Ms. Lisa Shoman of Belize.

See the Prime Minister's Letter and other releases in the Ninth Ammendment Package on this website entitled "Ninth Amendment to the Constitution of Belize: Tracking the Trails"

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An Open Response to the Prime Minister of Belize--by Lisa Shoman, Attorney at Law

  1. 1. AN OPEN RESPONSE TO THE LETTER FROM THE PRIME MINSTER OFBELIZE TO THE PEOPLE OF BELIZE - CLARIFICATION TO THE BELIZECONSTITUTION (NINTH AMENDMENT) ACT 2011My Fellow Citizens of Belize,Our Prime Minister, on July 29, 2011, wrote a letter to us clarifying his Government’sposition on the Belize Constitution (Ninth Amendment) Act 2011. This is an openresponse to that letter.Belize is a nation with a written constitution which is supreme law. The authority of ourcourts to review Constitutional amendments is not found ONLY in the bare words of theConstitution itself. Such authority is genetically rooted in the doctrine of separation ofpowers which all constitutional scholars acknowledge as a key feature of our democracy.That foundation and the “unlimited original jurisdiction” granted under section 95, to theSupreme Court, coupled with the jurisdiction granted to the Court of Appeal and theCaribbean Court of Justice form the structure of the Judiciary which functions as a checkand balance on the Executive and Legislature in Belize.The Prime Minister referred to the Irish Supreme Court case of Riordan v An Taoiseachwhich was brought by Dennis Riordan who was seeking declarations that the 19thAmendment of the Constitution Act 1998 in Ireland would allow the Constitution to beamended in a way other than by referendum held under Article 46 of the IrishConstitution.Regrettably, Belize has no such referendum requirement. In the Riordan case, after theSupreme Court had ruled against Mr. Riordan, a referendum was duly held and the Irishpeople overwhelmingly approved the proposal contained in the 19th Amendment of theConstitution Bill which was then signed into law and became a part of the IrishConstitution. When Riordan tried to go back to Court to attack the Constitutionality ofthe Amendment, it was pointed out to him that since the 19 th Amendment had nowbecome part of the Constitution; it could no longer be attacked in the light of theConstitution.And that is exactly the problem with clauses 2 and 3 of the 9 th Amendment. Once theybecome part of the Constitution, they cannot thereafter be challenged because of the newsections. The Riordan case, in fact, is a good case to show why Belizeans with genuineconcerns must challenge the Amendment NOW, and not wait until it becomes law and ismade a part of the Constitution itself.The Prime Minister did not remind Belizeans that in fact, there was a time when he hadan executive duty, and Belizeans had a legal right to a referendum, when their
  2. 2. fundamental rights and freedoms would be taken away. That right was removed by theReferendum Amendment Act of 2008, one of the first legislative acts of this government.The only reason that the Privy Council in the Alberto Vellos v. AG case did not call uponthe Prime Minister to hold this last remnant of the right to a referendum on the 6thAmendment, was because in the face of overwhelming negative public opinion onpreventative detention, and the Bowen lawsuit on the taking of private property rights,GOB blinked. By the time the case went before the Privy Council, Government hadchanged its Bill and did not go through with what it had originally proposed.Those legislative changes were, in fact made by popular demand, to the 6th AmendmentBill, and that cannot be denied. The Bowen case was in fact settled at the Court of Appealby consent - and is still good law in Belize. None may deny that.There are several examples of courts in other parts of the world, who have writtenconstitutions like Belize, who are doing precisely what the Prime Minister says cannot bedone - allowing challenges to amendments to the constitution. These include India(Kesavananda v State of Kerala), Bangladesh (Anwar Hossain Chowdhary vs. Bangladesh),Uganda (Ssemogerere et al v Attorney General), Mauritius (The State v Khoyratty (Mauritius),and, of course, Belize in the Bowen case.The Kesavananda case makes it clear that a constitution has a basic structure whichcannot be altered beyond recognition. To state that the legal principle in that case, “hasbeen rejected everywhere else except by Conteh in Belize”, is to wilfully ignore the factthat the constitutional doctrine of basic structure is in fact a solid part of Canadian Law.Basic Structure doctrine has been applied in cases in Mauritius, Bangladesh and Ugandaas well.There are many other countries in which the position has not yet been determined by thecourts. This is because few, (if any) democratic governments are blatant enough toattempt to interfere in the courts jurisdiction and undermine the rule of law in the mannerproposed by the 9th Amendment. In St. Vincent, in 2009, in fact, the Governmentproposed sweeping constitutional amendments, but took the matter to its citizens in areferendum.That the National Assembly does not have unlimited power to pass laws is obvious toBelizeans, even if the Prime Minister refuses to agree with their view. There is a basicstructure to our Constitution which cannot be altered without changing the entire natureof the Constitution upon which the legal order of our nation is founded.Paragraph (f) of the preamble to our Constitution states that the people of Belize “desirethat their society shall reflect and enjoy the above-mentioned principles, beliefs andneeds and that their Constitution should therefore enshrine and make provisions forthe achievement of the same in Belize.”
  3. 3. This means that our fundamental rights and freedoms are guaranteed for all time and thatBelize shall continue to be a democracy. It also means that the Legislature cannotremove the jurisdiction of the Courts over interpreting the laws of Belize, including theConstitution, by a mere act amending the constitution. Such a law would undermine thebasic structure, and all that which we enjoy, and the framers intended.Our basic structure is grounded on a separation of powers between the judiciary, thelegislature and the executive. The executive/legislature can make laws, but cannotprevent the judiciary from interpreting them; while the judiciary must interpret the law,but cannot pass laws itself.The Privy Council, Belizes highest court until very recently, established (in relation to acase regarding the Mauritius Constitution) that there can be aspects of a writtenConstitution that are so deeply entrenched that they cannot be overridden. This mustinclude the role of the courts in the Belize legal system, the separation of powers and thefundamental rights guaranteed by the Constitution.The Privy Council further made clear that amendments to the Constitution mustthemselves be Constitutional. The Government is therefore not entitled to passamendments infringing fundamental rights that remain part of, and are guaranteed by theConstitution. Otherwise, the Government would be permitted to remove fundamentalrights by the back door without any of the safeguards preventing such changes that areenshrined in Section 69. Every tyranny requires a tyrant. The citizenry are justified inrejecting this.The Belize Constitution does, however, provide the "textual support" (which the PrimeMinister claims it lacks) to limit our Legislature’s power to amend the Constitution. Suchsupport is found not only in paragraph (f) mentioned above, but also in the words ofSection 2, which states that the Constitution, not the National Assembly, shall beSupreme.Those Belizeans who do not support the current draft of the 9th Amendment hold theopinion that the Constitution of Belize does not grant Parliament unlimited power toamend. Given the track record of this Administration in the past three years on presentingin the House of Representatives the 6th, 7th, 8th and now 9th constitutional amendmentsbefore consulting, can Belizeans be blamed for the belief that unlimited Parliamentarypower is a sure open-door to abuse? It would be un-patriotic NOT to worry.It is cold and empty reassurance to say that the proposed amendments would not preventthe right of access to the courts to challenge constitutional amendments and those claimscould still be heard. The bleak reality is, that with the 9th Amendment in place, if properprocedure has been followed, no remedy against parliamentary constitutional abuse couldbe granted by those courts.There would be no point in expending energy and resources to go to court to have such aclaim heard. The supposed right of access to the courts would be entirely empty – ashollow as the claim that redress would be available.
  4. 4. It is precisely because in Belize, there DOES exist the kind of democracy, tradition, andpeople power that is the ultimate safeguard against abuse, that there are so manyBelizeans united in their concerns about this 9th Amendment.Let me throw out a bold challenge - and a patriotic offer - to the proponents ofconstitutional change. I will presume that the assurances of the Prime Minister andForeign Minister are genuine and that the Government will consider itself bound by theoutcome of the public consultation process. Let the National Assembly use its power,under the Referendum Act to hold a referendum on the 9th Amendment Bill. Let Belizeanshave their rightful say.Better yet, convene a Constitutional Convention. Let all stakeholders, political parties,civil society and concerned Belizeans, engage each other in civil discourse, for the goodof our nation, the development of our democracy, and the love of our Jewel.We can, and we must rise above our mutual distrusts, be they partisan or personal. Wemust go beyond our deeply held suspicions, and rise, in this hour of Belize’s need towork, together, under the shade of our tree of liberty, to strengthen our democracy.Our children, our future, our freedom demand no less.Lisa M ShomanAugust 9, 2010