The Caribbean Court of Justice (CCJ) issued a decision today upholding the constitutionality of the Supreme Court of Judicature (Amendment) Act and the Supreme Court of Judicature (Amendment) No. 2 Act—except for certain provisions prescribing minimum mandatory sentences, which it has indicated should be excised from the Laws of Belize.

The amendments essentially created the offence of knowingly disobeying or failing to comply with an injunction (particularly an anti-arbitration injunction) and prescribed severe penalties for the offence, including mandatory minimum penalties.

The court held that the mandatory minimum sentences prescribed in sub-section 3 are “grossly disproportionate, inhumane and unconstitutional for contravening section 7 of the Constitution.”

“The imposition of a minimum fine of $50,000, which far exceeds the ability of the average Belizean to pay, or a minimum sentence of imprisonment of at least five years for an offender convicted under this provision is grossly disproportionate and bears no reasonable relation to the scale of penalties imposed by the Criminal Code for more serious offence,” the court notes.

The CCJ also rejected the argument that the new amendment contravenes the separation of powers principle by introducing a special regime for the prosecution of a breach of an anti-arbitration injunction, which can be initiated at the complete discretion of the Attorney General, a member of the Executive.

The case is one of several rounds of litigation sparked by the dispute between the Government of Belize and the Ashcroft group of companies due to the nationalization of Belize Telemedia Limited (BTL).

A summary of the proceedings provided by the CCJ notes that, “The proceedings arise out of a dispute between the Government of Belize and the Respondents related to a 2005 Accommodation Agreement with Belize Telemedia Limited (‘Telemedia’).

“When the present Prime Minister repudiated the Agreement, Telemedia invoked an arbitration clause in the Agreement and was awarded BZ$38.5 million in damages against the Government [by the London Court of International Arbitration].

“The Prime Minister stated publicly that he would never pay the award and the Government obtained an injunction from Belize’s High Court to restrain enforcement of the award. Framed by the Prime Minister as a battle with Lord Ashcroft… this dispute has led to the passage of legislation to acquire 94% of Telemedia’s shares, which is subject to ongoing legal proceedings, and the legislation being challenged before this Court”.

The appellant in the case is the Attorney General of Belize, and the respondents are Philip Zuniga, Dean Boyce, Keith Arnold, Michael Ashcroft, Jose Alpuche, Philip Osborne, and Ediberto Tesucum, while interested parties are BCB Holdings Limited, The Belize Bank Limited, Philip Johnson, Ken Robinson, Thanet Financial Services Limited, The Swan At Westgate Ltd, Jacdaw Investments Limited, Shaun Breeze, David Hammond, John Lambie, and Paul Biffen.

In the 3-2 decision issued by the CCJ today, the majority held that the impugned provisions must be severed, while the other two judges would have struck down the new legislation in its entirety.

Presiding over the case was Justice Nelson, who was joined by Justices Saunders, Wit, Hayton and
Anderson.

Denys Barrow, SC, and Crown Counsel Iliana Swift appeared for the Government of Belize, while Edward Fitzgerald, QC, and Ms. Priscilla Banner appeared for the respondents. Lord Peter Goldsmith, QC and Godfrey Smith, SC, appeared for the interested parties.