By Aaron Humes
The Government of Belize was right to acquire Belize Telemedia Limited and Belize Electricity Limited, the Court of Appeal affirmed Thursday afternoon.
A majority of the appellate court’s members, with the exception of Justice Douglas Mendes, held that the government’s acquisitions of the utility companies in July 2011, buttressed by various Acts of Parliament and statutory instruments, was valid and constitutional.
Therefore, as it relates to compensation to the former owners of the utility companies – the BTL Employees’ Trust, British Caribbean Bank and Fortis Energy International (Belize) – it would appear that the value of the properties should only be calculated up to July of 2011.
Speaking on this matter, government’s attorney Senior Counsel Denys Barrow, who admitted that he is yet to read the full judgment, felt that the Court’s decision to set July 4, 2011, as the date on which the second acquisition came into effect may leave the Government liable for compensation between the first takeover in August of 2009 (which the same court had found unconstitutional in a previous judgment) to July of 2011. He nevertheless qualified his opinion by stating that it was “open-ended.”
Attorney General Wilfred Elrington, appellant in the case representing the government, deemed Thursday’s ruling as a victory for all Belizeans, and said that Government remains open to compensating the former owners.
“We have to pay for it, we understand that, and we have offered to pay,” Elrington said. “So that isn’t a problem. The Government and people of Belize always pay their bills. But, we’ve got to make sure that the interests of the people is always protected, and it is for that reason that we go to court to have these matters resolved by the courts.”
Elrington added that while government wants and expects to maintain majority control of both companies, it is looking for strategic partners who could provide both capital and expertise.
Eighth Amendment upheld
Barrow also lauded the court’s acknowledgement of the constitutionality of the Eighth (previously Ninth) Amendment.
He noted that the majority of the Court disagreed that an amendment to the Constitution could be unconstitutional because it does not conform to the basic structure of the Constitution.
Readers may recall that in June, 2012, Supreme Court Justice Oswell Legall struck down many parts of the Eight Amendment, which was enacted in October 2011 and was designed to give GOB the constitutional authority to maintain control of the companies.
Legall, in his 2012 judgment, said: “The Founding Fathers of the Belize Constitution could not have intended … to empower the government with required majorities, in the National Assembly, to make any amendment to the Constitution that would remove the fundamental pillars of democratic rule and the rule of law. … I therefore rule that even though provisions of the Constitution can be amended, the National Assembly is not legally authorized to make any amendment to the Constitution that would remove or destroy any of the basic structures of the Constitution of Belize.”
The upper court, with Mendes dissenting, has reversed this finding.
Courtenay: “Not an overwhelming loss
Senior Counsel Eamon Courtenay, one of the counsels who represented the former owners, said he “drew comfort” from Justice Mendes’ disagreeing opinion, which went “entirely” in favor of his clients on all three appeals.
He also noted a few curiosities he picked up from the decision. Like Barrow, he admitted to not having yet read the entire judgment, but shared that he finds it odd that the court would now say that the BEL acquisition is constitutional, when in the past they had said that it wasn’t.
Courtenay said that this was especially curious, because the BEL acquisition was based on legislation similar to what was used in the first BTL acquisition—which the courts had ruled unconstitutional.
He went on to say that while they wait for a final determination, it remains an unhappy state of affairs because time has passed and many decisions have been made, some of which, he said, violate some persons’ constitutional rights.
Courtenay said he was not aware of any talks at the moment for compensation.
Unto the CCJ
The matter, however, is far from over, as both sides are now looking forward to a final decision from the Caribbean Court of Justice, the highest appellate court for Belize.
Courtenay said that a “vigorous” appeal will be argued at the CCJ and that his clients have not “overwhelmingly” lost.