Supreme Court Justice Oswald Legall has ruled that certain aspects of the controversial Eight Constitutional Amendment (formerly the Ninth Amendment) are null and void.
On Monday, June 11, Legall issued an 80-page judgment on the two claims brought against the government of Belize by the Ashcroft Alliance over its second nationalization of Belize Telemedia Limited (BTL).
He found that the new acquisition law and the Statutory Instrument that the government used to retake BTL are invalid.
On March 13 and 14, 2012, Justice Legall heard submissions from the attorneys Eamon Courtenay, SC, and Ashanti Arthurs-Martin, who represented the British Caribbean Bank; and from Lord Peter Goldsmith, QC and Magali Marin-Young who argued on behalf of Boyce and the BTL Trust.
The attorneys argued that the 8th Amendment was in breach of the Separation of Powers Doctrine and the basic structure of the Constitution.
Legall upheld their submissions and wrote:
“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 Section 2 and 3 above of the Eighth Amendment, as these sections seek to prevent the court from holding such other law as 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.”
Legall goes on to declare “that sections 2, 3, and 145(1) (2) of the Eighth Amendment breach the basic structure of the Constitution and the Separation of Powers Doctrine. The 2011 Order is ultra vires the Principal Act and null and void. The New Provisions of the 2011 Act are valid. Section 2(a) and (b) of the 2011 Act are void.”
According to an attorney who spoke with The Reporter regarding this latest judgement, Legall’s decision has further placed the government’s second nationalization of BTL in legal ambivalence, which may have to be remedied by future legislative action on the part of the government of Prime Minister Dean Barrow.
The judge’s ruling, however, did not find that the government’s ownership of majority share in BTL was unconstitutional.
While it remains to be seen if the Barrow administration will appeal Legall’s decision or will opt for another round of nationalization legislation, at his press conference Wednesday, Barrow did not rule out the possibility that the government may have to pass new legislation in respect of the BTL.
He adamantly stated that the government will never give up its ownership of BTL.He did admit the government was negoitating compensation of the former owners, but there remained the matter of valuation of the shares.
Also it remains to be seen if the Ashcroft Alliance will seek an enforcement order from the Belize Court of Appeal to retake BTL, or follow the judge’s instruction and come to a negotiated settlement for compensation.
Justice Legall stipulated that all the parties in the claim are to bear their own costs.