The Infamous Ninth Amendment

By: E. Andrew Marshalleck  

The decision of the Honourable  Mr. Justice Legal handed down on Monday of this week in the challenge to the  legality of the re-nationalization of Belize Telemedia Limited represents the first decision of our courts on the constitutional issues raised by the Ninth Amendment to the Belize Constitution which were very publicly and hotly debated nationally. 

The Ninth Amendment is of course now the Eighth Amendment since the then eighth amendment was shelved. The decision will likely be appealed and how much of it will stand thereafter  will be then determined.  For now, however, the decision represents the law of the land and offers an irresistible opportunity to reflect on the constitutional issues raised in the debates and to see who was right.

It will be no doubt recollected that the fundamental constitutional issues raised by the Ninth Amendment concerned the extent of parliament’s power to amend the Constitution and whether or not the Constitution itself imposed substantive limitations on that power.

Mr. Justice Legal has now held that the power  to amend is indeed limited in substance by the doctrine of separation of powers and the basic structure doctrine and has struck down a number of the Amendments in the Eighth Amendment on the very basis that the amendments in fact exceeded the law making power conferred on Parliament by the Constitution.

That Parliament may have  been  acting beyond its constitutional authority in passing the Ninth was indeed highlighted in the debates preceding the Ninth so that Government  in proceeding as it did was well aware of that possibility. The Government, however,  sought comfort in the legal position that Parliament had power to amend the Constitution in any way it saw fit provided only that the manner and form requirements of the Constitution were complied with. This notwithstanding a decision by Chief Justice Conteh in Claim No 445 of 2008: Barry Bowen v. Attorney General of Belize to the contrary.  The government’s position has now been soundly rejected by the Supreme Court of Belize for a second time.

In the recent  judgment  Mr. Justice Legal  decided  as follows:

“The submission that the National Assembly of Belize can, subject to the limitations contained in section 69(2)(3)(4) of the Constitution, make any amendment to the Constitution seems, as shown above, to ignore the intention of the makers of the Constitution as propounded in its preamble. The preamble is the root of the tree from which the provisions of the Constitution spring, and which forms the basis of the intent and meaning of the provisions. The framers of the preamble could not have intended that the National Assembly with the required majority under section 69, could make literally any amendment to the Constitution to, for instance, abolish the judiciary, or expropriate private property without compensation, or imprison its enemies without trial.

It is not conceivable that a legislature in the democratic State such as Belize would attempt to accomplish the above matters: but, if the submission of the Defendants is correct, such accomplishments are legally attainable which I do not think is consistent with the intention of the Constitution. The Constitution was made by, and for the protection of all the people of Belize, and its intention could not be that a required majority of people, as represented by the Government, in the National Assembly could take away or destroy fundamental or basic structures of the Constitution enjoyed by the people. I have no doubt that the basic structure doctrine is a feature or part of the Constitution of Belize.”

In his judgment Mr Justice Legal found that sections 2, 3, 145(1) and 145(2) of the Eighth Amendment are unconstitutional and void.

Section  2 provided: “Section 2 of the Constitution is amended by renumbering  that section as subsection (1) and by adding the following subsection 2. The new subsection 2 states:

(2) The words “other law” occurring in subsection (1) above do not include a law to alter any of the provision of this Constitution which is passed by the National Assembly in conformity with section 69 of the Constitution.”

Section 3 provided: “Section 69 of the Constitution is hereby amended by the addition of the following new subsection after subsection (8):-

(9) For the removal of doubts, it is hereby declared that the provisions of this section are all inclusive and exhaustive and there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution.”

Section 145(1) provided: “For the removal of doubts, it is hereby declared that the acquisition of certain property by the government under the terms of the-

(a) Electricity Act, as amended, and the Electricity (Assumption of Control Over Belize Electricity Limited) Order 2011 (hereinafter referred to as the Electricity Acquisition Order”); and

(b) Belize Telecommunications Act, as amended, and the Belize Telecommunications (Assumption of Control Over Belize Telemedia Limited) Order 2011, (hereinafter referred to as “the Telemedia acquisition Order”), was duly carried out for a public purpose in accordance with the laws authorizing the acquisition of such property.

And section 145(2) provided: “(2) The property acquired under the terms of the Electricity Acquisition Order and the Telemedia Acquisition Order referred to in subsection (1) above shall be deemed to vest absolutely and continuously in the Government free of all encumbrances with effect from the date of commencement specified in the said Orders.”

The learned trial judge found that the amendments to section 2 and 69 breached the separation of powers and the basic structure doctrines and sections 145(1) and 145(2) breached the separation of powers doctrine. The  judge explained as follows:

“In a common law jurisdiction, it has always been the function of the Court to interpret legislation. In my view, section 145(1) violates the separation of powers doctrine, which is part of the basic structure of the Belize Constitution when it purported to interpret “public purpose” as used in section 17(1) of the Constitution and when it proclaimed that the acquisition was carried out for a “public purpose”  in accordance with the laws authorizing the acquisition of such property.

Section 145(2) of the Eighth Amendment when it states that the property vests absolutely and continuously in the government seeks to prevent the court from holding differently in the exercise of its express power under section 17(1)(b)(i) of the Constitution. I am therefore of the view that section 145(2) breaches the separation of powers doctrine. The separation of powers doctrine and the basic structure doctrine are also violated by sections 2 and 3 of the Eighth Amendment, as these sections seek to prevent the court from holding such other law contrary to the Constitution, (section 2), and from holding that limitation exists outside section 69, on the amending powers of the National Assembly, limitation such as the basic structure of the constitution.”

The foregoing is indeed a huge victory for the proponents of Constitutional Supremacy and completely vindicates the position advanced by the Bar Association in the debates as well as the legal opinions of both scholars who rendered opinions at the instance of the Association, the Chamber of Commerce and the Human Rights commission and completely rejects the arguments posited in support of the Ninth by the government particularly those exhaustively set forth by the Prime Minister himself in his historical letter to the public, as well as his letter to the Council of Churches pulling the proverbial wool over the eyes of no less than our religious leadership.

On the constitutional issues there can be no doubt that the decision completely devastated the government’s legal  arguments.

The Court, however,  went on to find for the constitutionality of sections 143 and 144 of the Eighth Amendment, which were apparently not under challenge, and on the basis of section 144 which provides that “from the commencement of the Belize Constitution (Eighth Amendment) Act, 2011 the government shall have and maintain at all times majority ownership and control of a public utility provider” denied consequential relief to the former owners of Telemedia and British Caribbean Bank for what he found to be the unlawful and void acquisition of their property. Telemedia and British Caribbean Bank’s mortgage over Telemedia therefore continue to reside with the government notwithstanding their unlawful acquisition by virtue of section 144 of the Eighth Amendment to the constitution.

That result begs a number of questions. Firstly how can Government lawfully keep Telemedia and the Bank’s mortgage when they were not lawfully acquired? And secondly, what if any relief is to be afforded for the apparent breach of the owners’ constitutional right not to have been unlawfully deprived of their property? Given the Prime Minister’s past public statement reported in the press that it is “impossible” for the government to accept that the court does have the power of review of constitutional amendments, the decision of Mr Justice Legal will be appealed by the government provided there is no change of heart.

In any event, if it indeed is the case that the Eighth Amendment is necessary to secure the nationalization of the public utilities, as was vigorously argued by the government in support of the amendment,  then the  re-nationalization of Belize Telemedia as well as the nationalization of Belize Electricity Limited can, in light of the decision, no longer be properly regarded as safe.

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