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CONSTITUTION (NINTH AMENDMENT) ACT 2011
My Fellow Citizens of Belize, Our Prime Minister, on July 29, 2011, wrote a letter to us clarifying his Government’s position on the Belize Constitution (Ninth Amendment) Act 2011. This is an open response to that letter. Belize is a nation with a written constitution which is supreme law. The authority of our courts to review Constitutional amendments is not found ONLY in the bare words of the Constitution itself. Such authority is genetically rooted in the doctrine of separation of powers which all constitutional scholars acknowledge as a key feature of our democracy. That foundation and the “unlimited original jurisdiction” granted under section 95, to the Supreme Court, coupled with the jurisdiction granted to the Court of Appeal and the Caribbean Court of Justice form the structure of the Judiciary which functions as a check and balance on the Executive and Legislature in Belize. The Prime Minister referred to the Irish Supreme Court case of Riordan v An Taoiseach which was brought by Dennis Riordan who was seeking declarations that the 19th Amendment of the Constitution Act 1998 in Ireland would allow the Constitution to be amended in a way other than by referendum held under Article 46 of the Irish Constitution. Regrettably, Belize has no such referendum requirement. In the Riordan case, after the Supreme Court had ruled against Mr. Riordan, a referendum was duly held and the Irish people overwhelmingly approved the proposal contained in the 19th Amendment of the Constitution Bill which was then signed into law and became a part of the Irish Constitution. When Riordan tried to go back to Court to attack the Constitutionality of the Amendment, it was pointed out to him that since the 19 th Amendment had now become part of the Constitution; it could no longer be attacked in the light of the Constitution. And that is exactly the problem with clauses 2 and 3 of the 9 th Amendment. Once they become part of the Constitution, they cannot thereafter be challenged because of the new sections. The Riordan case, in fact, is a good case to show why Belizeans with genuine concerns must challenge the Amendment NOW, and not wait until it becomes law and is made a part of the Constitution itself. The Prime Minister did not remind Belizeans that in fact, there was a time when he had an executive duty, and Belizeans had a legal right to a referendum, when their
fundamental rights and freedoms would be taken away. That right was removed by the Referendum 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 upon the Prime Minister to hold this last remnant of the right to a referendum on the 6th Amendment, was because in the face of overwhelming negative public opinion on preventative 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 had changed 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 Amendment Bill, and that cannot be denied. The Bowen case was in fact settled at the Court of Appeal by 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 written constitutions like Belize, who are doing precisely what the Prime Minister says cannot be done - 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 which cannot be altered beyond recognition. To state that the legal principle in that case, “has been rejected everywhere else except by Conteh in Belize”, is to wilfully ignore the fact that 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 Uganda as well. There are many other countries in which the position has not yet been determined by the courts. This is because few, (if any) democratic governments are blatant enough to attempt to interfere in the court's jurisdiction and undermine the rule of law in the manner proposed by the 9th Amendment. In St. Vincent, in 2009, in fact, the Government proposed sweeping constitutional amendments, but took the matter to its citizens in a referendum. That the National Assembly does not have unlimited power to pass laws is obvious to Belizeans, even if the Prime Minister refuses to agree with their view. There is a basic structure to our Constitution which cannot be altered without changing the entire nature of 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 “desire that their society shall reflect and enjoy the above-mentioned principles, beliefs and needs and that their Constitution should therefore enshrine and make provisions for the achievement of the same in Belize.”
This means that our fundamental rights and freedoms are guaranteed for all time and that Belize shall continue to be a democracy. It also means that the Legislature cannot remove the jurisdiction of the Courts over interpreting the laws of Belize, including the Constitution, by a mere act amending the constitution. Such a law would undermine the basic structure, and all that which we enjoy, and the framers intended. Our basic structure is grounded on a separation of powers between the judiciary, the legislature and the executive. The executive/legislature can make laws, but cannot prevent the judiciary from interpreting them; while the judiciary must interpret the law, but cannot pass laws itself. The Privy Council, Belize's highest court until very recently, established (in relation to a case regarding the Mauritius Constitution) that there can be aspects of a written Constitution that are so deeply entrenched that they cannot be overridden. This must include the role of the courts in the Belize legal system, the separation of powers and the fundamental rights guaranteed by the Constitution. The Privy Council further made clear that amendments to the Constitution must themselves be Constitutional. The Government is therefore not entitled to pass amendments infringing fundamental rights that remain part of, and are guaranteed by the Constitution. Otherwise, the Government would be permitted to remove fundamental rights by the back door without any of the safeguards preventing such changes that are enshrined in Section 69. Every tyranny requires a tyrant. The citizenry are justified in rejecting this. The Belize Constitution does, however, provide the "textual support" (which the Prime Minister claims it lacks) to limit our Legislature’s power to amend the Constitution. Such support is found not only in paragraph (f) mentioned above, but also in the words of Section 2, which states that the Constitution, not the National Assembly, shall be Supreme. Those Belizeans who do not support the current draft of the 9th Amendment hold the opinion that the Constitution of Belize does not grant Parliament unlimited power to amend. Given the track record of this Administration in the past three years on presenting in the House of Representatives the 6th, 7th, 8th and now 9th constitutional amendments before consulting, can Belizeans be blamed for the belief that unlimited Parliamentary power 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 prevent the right of access to the courts to challenge constitutional amendments and those claims could still be heard. The bleak reality is, that with the 9th Amendment in place, if proper procedure has been followed, no remedy against parliamentary constitutional abuse could be granted by those courts. There would be no point in expending energy and resources to go to court to have such a claim heard. The supposed right of access to the courts would be entirely empty – as hollow as the claim that redress would be available.
It is precisely because in Belize, there DOES exist the kind of democracy, tradition, and people power that is the ultimate safeguard against abuse, that there are so many Belizeans united in their concerns about this 9th Amendment. Let me throw out a bold challenge - and a patriotic offer - to the proponents of constitutional change. I will presume that the assurances of the Prime Minister and Foreign Minister are genuine and that the Government will consider itself bound by the outcome 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 Belizeans have 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 good of 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. We must go beyond our deeply held suspicions, and rise, in this hour of Belize’s need to work, together, under the shade of our tree of liberty, to strengthen our democracy. Our children, our future, our freedom demand no less. Lisa M Shoman August 9, 2010
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