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The PM's Letter to Belize Council of Churches

The PM's Letter to Belize Council of Churches

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Published by Lisa Shoman
The Prime Minister writes to the Belize Council of Churches.
The Prime Minister writes to the Belize Council of Churches.

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Published by: Lisa Shoman on Aug 16, 2011
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08/16/2011

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 Sir Edney Cain Building Tel: 822-2345/2346Belmopan, Belize Fax: 822-0071Central America Email: secretarypm@opm.gov.bz
Office of the Prime MinisterBelmopan, Belize, Central America
August 15, 2011Rev'd Canon Leroy Flowers,President,Belize Council of ChurchesDear Canon,I write in response to your letter to me of 4th August, 2011. That letter, which I've onlyseen today, sets out the position of the Council of Churches on the Belize Constitution(Ninth Amendment Bill), 2011. Since that position has now been widely circulated, I willlikewise publicize this response.The Council of Churches says it supports enshrining the nationalization of the utilitycompanies in the Belize Constitution. But it does not support the changes to Sections 2and 69 that the 9th Constitutional Amendment Bill proposes.I have looked carefully at the arguments the Council advances for the latter position, butam sorry to say that I cannot agree with them. Indeed, it is hard to see how the insertionof public control of the utilities into the Constitution could be properly protected withoutthe proposed new Sections 2 and 69. But I know that the Council met with the Executiveof the Belize Bar Association prior to making its statement. And it is a pity that theCouncil did not also seek to hear directly from Government. For I believe that theCouncil has been led into grave error by the Executive of the Bar. That Executive hascalled for the courts to be given the power of judicial review over the merits ofConstitutional amendments. And it argues that Section 68 of the Constitution, whichgives the National Assembly the right to make laws for the peace, order and goodgovernment of Belize, is a limitation on the power of Parliament to alter the Constitution.
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 Sir Edney Cain Building Tel: 822-2345/2346Belmopan, Belize Fax: 822-0071Central America Email: secretarypm@opm.gov.bz
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 Now that power of judicial review over Constitutional amendments, which the BarExecutive seeks, is one the courts do not now have. The 9th Amendment Bill merelyunderlines that fact. Also, and there is case law on this, Section 68 of the Constitutiondoes not in any way impinge on the authority of the National Assembly to amend theConstitution. It is only Section 69 of the Constitution that deals with the ability, includingthe limits on that ability, of Parliament to change the Constitution.What the Council of Churches and other Belizeans should know as well, is that in takingits stance the Bar Executive acted contrary to the position of several of its members,including two of the most distinguished of the country's Senior Counsel. The Barposition, unfortunately mirrored now by the Council, is also wrong in the extreme.Further, it is rejected by the jurisprudence of every common-law ConstitutionalDemocracy, with the sole exception of India.In the end, then, the proposed changes to Sections 2 and 9 of the Constitution, whichthe Council opposes, only spell out (for the avoidance of doubt) what is currently thecase under our Constitution and throughout the Commonwealth of Nations and in theUnited States of America: no court should be able to overturn an amendment to theConstitution so long as that amendment is properly passed. Of course, it is theConstitution itself that provides, in Section 69, for its own amendment and how any suchamendment is to be done. When the Belize Independence Constitution was originallyenacted as our supreme law, no one would have dreamed of suggesting that the courts,themselves enshrined by the Constitution and subordinate to it, could have struck downany portion of that Constitution. Indeed no one says even now that the originalConstitution, in part or in whole, is subject to judicial review. But an amendment to theConstitution that is passed in accordance with the current Section 69 of the Constitution,itself becomes part of the Constitution. It is therefore a matter of the most elementarylogic that if no part of the original Constitution can be upset by a court on the merits, theposition must be the same for a properly passed amendment that then stands onexactly the same footing as the rest of the originally enacted Constitution.Of course, there are members of the Bar that are highly politically motivated. And theyhave not scrupled to distort the facts and misrepresent the precedents in Belize andsimilar jurisdictions. As one example, it is not possible, except on the basis of completedishonesty, to mangle the Privy Council decision in the Belize case of Vellos: Belize'sthen highest court was clear that no ordinary law, or court, could impose a referendum(or any other) requirement so as to fetter the Section 69 power of the Legislature toamend the Constitution.Again, the cases from Uganda, Mauritius and Bangladesh cited by one member of theBar, say only that clauses, including the most deeply entrenched clauses, in a
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 Sir Edney Cain Building Tel: 822-2345/2346Belmopan, Belize Fax: 822-0071Central America Email: secretarypm@opm.gov.bz
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 Constitution must all be amended by their correct procedure. Thus, an amendment thatexpressly amends one clause by its required procedure, cannot by implication amendanother clause that requires a different procedure. In such an instance the firstamendment would be right and the second one wrong.Also, it is just plain fraud for the Bar to suggest that the Indian case of Kesavananda,which says that the Indian Constitution can never be altered in ways that go against theso-called basic structure of the Constitution, has been accepted anywhere else in theworld of common-law Constitutions. Rather, the position is as has been declared byLord Nicholls of Birkenhead in the Privy Council case of Charles Matthew v The State:"If the requisite legislative support for a change in the Constitution is forthcoming, adeliberate departure from fundamental rights may be made, profoundly regrettablealthough this may be. That is the prerogative of the legislature."The matter, then, is beyond doubt. The three/fourths majority elected by the people ofBelize have the power given by the Constitution to make any change to thatConstitution, so long as it is done in accordance with the Section 69 provisions of theConstitution. And those provisions do not, unlike the provisions in the Irish Constitutionor the St Vincent Constitution, require a referendum. If our Constitution is thereby to beseen by the Council of Churches as opening the door to abuse, there is one answer tothat. The true safeguard against such abuse lies in our culture, traditions and thevigilance of the very people that have entrusted the current administration with themajority needed to amend the Constitution. But it is not for the courts to probe orchange any duly enacted provision of the Constitution. That is for the people via theirelected representatives. And that is why, notwithstanding the arguments of the Bar andthe Council, courts cannot inquire into Constitutional amendments that the Parliamentproperly makes, and which then become part of the organically supreme Constitution.There is one last thing I wish to say. The whole point of putting control of the utilities intothe Constitution is to make that control unassailable. But Lord Ashcroft, for one, isalready seeking in the Caribbean Court of Justice to prevent the very passage of theamendment to Constitutionalize control. To allow him, even after passage, the ability tohave a court strike down the amendment, would be truly to frustrate the sovereign will ofthe Belizean people. And the Council of Churches does seem to agree that it is thesovereign will of the people for the Constitution to be amended in order to safeguard ourutilities. Logically, therefore, the Council, and all Belizeans, should be glad that we aretrying to make absolutely sure that no one, not even a court, would be able to overturn aConstitutional amendment representing perhaps the most important policy andlegislative decision since Independence. But impregnability, I say again, can only beguaranteed by the proposed additions to Sections 2 and 69 of the Constitution. Andimpregnability, ultimately, is what the 9th Amendment Bill is all about.
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