Features — 29 November 2013 — by Audrey Matura - Shepherd

The Rule of Law is one of the hallmarks of our Constitution and it is one of the pillars that make a country a constitutional democracy. The Rule of Law is a term said and used with the hope that all understand it, so the layman’s version is “no man is above the law.” The simple gist of Rule of Law is that if a country or society seeks to be civilized, it must be governed by clearly defined laws by which ALL or EVERYONE in said society must abide by or be measured by. So the laws we are talking about apply to all equally and no one is above those laws … There are no exceptions.

They may be man-made laws, but many are derived from Natural or God-given laws. When a person is born into a society/country, they are bound, without signing a paper contract, to abide by those laws and agree that those laws will govern them. If as they grow they do not wish to live by those laws, they must either lobby to change them, or move away to a society that allows the laws they want or pay the price if convicted of breaking the law.

Penner’s power

It is clear that when Elvin Penner and members of the Immigration Department facilitated the one-day express service to have a Belizean nationality and passport issued to Won Hong Kim, aka “Citizen Kim,” there had to have been a law that addresses the proper issuance of nationality and passports. There was a procedure to be followed and certain criteria to be met in order for such issuance to be valid. If this was not followed … as clearly it was not, since Citizen Kim never set foot in Belize and was in a prison in Taiwan at the alleged time he was in Belize taking an oath for citizenship and signing up for a passport … then the law was broken.

It is the Constitution of Belize that allows for those not born in Belize to become citizens. Section 26 states: “26.-(1) The following persons may, upon making application at any time after Independence Day, be registered as citizens of Belize –

(b) any person who has been resident continuously in Belize for a period of five years immediately before the date of his application;

(c) any person who makes a substantial contribution to the economy and/or well-being of Belize or who has rendered distinguished service to Belize.

It is the National Assembly that prescribes by law, the procedure for making and determining applications, and the conditions to be fulfilled by persons making applications for registration under this section. And for every law, a penalty for breach of said law is prescribed to ensure its compliance and enforcement. If the penalty is lacking, I opine it is not a law, but a formality. To make it a law, there must be enforceable consequences.

Said procedure is contained in the Nationality Act and accords with the Constitution of Belize and gives powers to the Minister to make regulations for its effective implementation. The problem with the Act is that it does not make it a criminal offence to contravene any and every section. It does not say that if anyone violates the Act and give persons not entitled to Belizean nationality the same, that it is an offence and if convicted the person will be liable to imprisonment or a fine. This is interesting because truly the power to finally assent and sign any nationality certificate rests in the pertinent Minister … in this case Penner.

Penner above the law

Constitution Sec. 26 (3) A person registered as a citizen of Belize under this section shall become a citizen of Belize on the date on which he is so registered. Clearly if the process to nationalize Citizen Kim occurred the same day he got the passport … which was a real express service, it must mean that the back-dating of the citizenship document is an offence. Sadly, in my opinion I am yet to find the section under the Nationality Act, but I may be able to find one in the Criminal Code, that makes what Penner did under that Act criminal.

Nonetheless, the Passport Act is more explicit and leaves no doubt that criminal liability is intended where breaches occur. Section 4 of the Passport Act states: “4. Every person who commits an offence against this Act shall be liable on summary conviction to imprisonment for any term not exceeding one year, or to a fine not exceeding five hundred dollars, or to both such fine and term of imprisonment.”

Thus the question is: what sections of the Passport Act did Elvin Penner, Minister of State, violate? And why hasn’t there been an investigation against him? And why no charges against him? If you notice, the Government is hoping to bide their time and remain silent with the assurance that Belizeans will not ask, “When will Penner be investigated?”

I propose that one area where I would find a charge against the Minister of State is at Section 3(1)(h), which states: “Every person who, in respect of any passport- … (h) without having actual knowledge of the applicant for a passport, makes any declaration verifying the declaration of such applicant, or vouching the fitness of such applicant to receive a passport or makes any such declaration merely on information obtained from the applicant or from any other person … commits an offence against this Act.”

While Minister Godwin Hulse has not seen it fit to make public the contents of Citizen Kim’s file and says it is missing, the police have done no investigation to find it and determine how it went missing. But it appears from Penner’s statement that he did sign the application and the relevant pictures declaring he knew the person for some three years. However, remember he said he knew the person he believed to be Won Hong Kim, aka Mr. Kim, before he entered politics in 2007, so that would have been for at least six years.

Yet, he affirms otherwise in his declaration. Based on this alone I would arrest and charge him under Section 3 of the Passport Act. In a country where the Rule of Law is to prevail, we are doing more than a shoddy job, since Elvin Penner is yet to even be interviewed by a police officer and he is confident he will not be interviewed, because in his thwarted mind he believes he is above the law and the government he supports validates his belief … they can’t even get him to resign, much less cooperate with police.

I say he is confident that if the PM allows the police to go after him, he can sing like a canary all the names of the Ministers and UDP high rankers whom he helped to expedite nationally papers and passports alike.

Strongest part of the case

I believe that his involvement in making a false declaration, is one of the strongest routes I would use to deal with Penner criminally, yet on September 27, 2013, the Prime Minister abandoned his post and decided to be police, judge and jury when he stated: “Whatever Hon. Penner’s involvement was … ultimately the people in the passport section had the duty to ensure that everything was in order. To ensure that the applicant for that passport appeared in front of them and had his picture taken. No Minister had any authority to override those requirements.” So if he did not have the authority and it is found that he did override the public officers, then please tell me, PM, what charges could be brought against him? He would be aiding and abetting, and the law makes provision for such offence.

In his usual cunningly lawyerly approach, the Prime Minister, Dean Barrow, is making sure he distances Penner from the acts that brought about the passport of Citizen Kim, because he knows that said law does have the “penal clauses.” PM Barrow’s position, as he states it, is: “The distinction as I said with respect to the Passport Section is that absent anything that the Minister had to do, there were requirements that they [immigration officers] needed to follow and it appears from the investigation so far that those requirements weren’t completely followed.”

However, in relation to the Nationality Act which empowers Penner to sign, but which has no all-encompassing penal clause, Barrow does not see the need to distance Penner’s action, and rather, readily ascribes responsibility for his actions there, knowing that there are no readily visible criminal charges there. Thus, Barrow states: “With respect to the Nationality Section of the department the situation is completely different. It is the Minister who signs the nationality certificate. He doesn’t issue the passport but he signs the nationality certificate. In this case, the nationality certificate that was involved in the whole chain of events that saw this South Korean national obtains the Belize passport. That nationality certificate was signed by Hon. Penner. Therefore, how are you going to look at the officers in the Nationality Section? They didn’t do anything except to provide the file in the normal course when the Minister calls for the file.

Penner is not above the law, and the fact that he signed a nationality certificate with a wrong date, or a date he says he did not put in, as the signatory he is ultimately responsible for what he signs, was negligent if he signed and did not put in the date, and he should be clamoring for an investigation to determine who set him up with a false date. Also, with the help of a handwriting expert, it can be determined who wrote in the date, even if the same pen ink was used.

Who set up Penner?

But there is no clamor in this area, in my own opinion, based on all the circumstantial evidence, because Penner knows he signed the certificate and entered the date. But better yet, if on the passport application he says he only knew Citizen Kim for three years, then on what basis was he satisfied that Kim met the Constitutional requirement of being resident in Belize for five years? Citizen Kim would have had to show he entered the country legally, has been here legally, presented affidavits of others who can attest he lived here for the prescribed five years. If this was not proven, he did not qualify for citizenship. And if he wanted to claim economic citizenship based on the portion of the law that allows a person who “makes a substantial contribution to the economy and/or well-being of Belize or who has rendered distinguished service to Belize,” then he would have had to show on the file that Citizen Kim did these things.

Now Penner claims fraud, but had he really done his homework with a friend he says he knew through business, he would have uncovered such fraud. I challenge him and put it to him that the reason he is not aggressively pursuing the fraud angle is because he knows in his heart that he is lying! So how come he hasn’t gone to track down the imposter, whom he knew for years, or at minimum three years. How come police don’t have a bulletin out for the capture of this fraudster, so as to redeem the “honorable” in the name of the Minister of State? Wanted posters with his name and picture should be all over this country and sent to Interpol. After all, he did try to help a wanted man escape his deportation and extradition to South Korea.

In an October 2, 2013 interview about the fraud theory, Channel 7 spoke with Minister Hulse, who said: “The response from the Taiwanese authorities is that, the photograph appearing in the passport which we and the guy got and on the national certificate is the guy they have in jail.” And that guy was Won Hong Kim. So how could Won Hong Kim’s picture be in a passport taken by Immigration officials in Belize under the “supervision” of Penner, yet Won Hong Kim was in a Taiwanese prison? I still want answers!!!

There are common sense things that could have been done then and now … if they really wanted to investigate. Interpol could have helped to locate the imposter. And if Penner really knew him as he claims, he would have known where his place of business is, where he lives, or even frequents, even who his friends are.

Plus at every point of entry they could have done searches to see when he entered and left the country. What about his phone number and other contact information? Is this alleged imposter above the Rule of Law as well?

Sorry, but I smell and know when we are waddling and wallowing in hog-wash! And the stench from this one is stifling. They make a mockery of the Rule of Law … the only truth they know is the political one that says, “Stay in power at all cost!”

God bless Belize!

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