General — 19 May 2012 — by Adele Ramos

Chief Justice Kenneth Benjamin made a landmark election petition ruling—which will serve as a legal precedent not just in Belize, but in the wider Caribbean—when he declared in the Belize Supreme Court this morning that a contract for security services with the Government of Belize does not require disclosure before election, as Martin Galvez, political opponent of Lake I area representative Mark King, had argued in a petition filed in April, challenging the legitimacy of King’s election on March 7.

In dismissing Galvez’s case, Justice Benjamin awarded Mark King, represented by Denys Barrow, SC, $7,500 in costs, and asked that the petitioner, Galvez, represented by Lisa Shoman, SC, as well as Lake I Returning Officer Noreen Fairweather, represented by Crown Counsels Nigel Hawke and Magali Perdomo, bear their costs.

This is the second court challenge following this year’s general elections in which Mark King is named. In the first challenge, brought by Galvez’s sister, Yolanda Schakron, Benjamin likewise did not grant her request, centered on Shakron’s disqualification due to dual citizenship, because the CJ noted, a fellow judge on the bench, Justice Samuel Awich, had already ruled in a case that essentially raised the same arguments before the court, and Awich’s decision had not gone to appeal.

Shakron was never allowed to file her petition, but her brother was. Nonetheless, even before it went to hearing, King’s attorney successfully made the case for the petition to be struck out by the court.

The petitioner, Galvez, has alleged that King violated Section 58.1.h of the Belize Constitution when he failed to disclose his contract with the government.

Galvez has deposed that King’s security company, Brints Security Services, was the beneficiary of the $135,216 contract, which the documents say does not expire until 2013, and King had failed to make the required disclosure to the public before the election.

Speaking with reporters after the victory, Mark King evaded the question of whether the security contract truly exists, although he admitted being the owner of Brints Security Services.

Asked by Love FM’s Marion Ali to share the scope and nature of his contract with Government, King said that his attorney had just explained that the existence of such a contract does not matter, and “that is not public knowledge, unless the law requires me to give that to the public, but at this point no…”

He said, “Brints Security exists and it has many contracts…”

Asked more specifically if it provides services to the Government of Belize, he responded: “It provides services to a lot of people.”

“Including the government?” the reporter probed further.

“A lot of people…” King replied, still refusing to confirm the existence of the contract.

“There is a contract between Brints Security Services and the Government of Belize, and that is signed by Mark King,” Shoman asserted to reporters, after today’s decision.

Shoman said that they had submitted the contract as evidence to the court in the election petition they filed in April.

Barrow told reporters outside the courtroom that the constitutional provision in question, 58.1.h, allows any contract, including with the civil service, as long as it is publicized in a media notice beforehand, saying the contract exists, but it must be disclosed in advance. However, he noted, only those caught by constitutional provision need to be disclosed.

“Therefore, a contract to build a building, a contract to provide security services, a contract to create a sculpture, none of these things would be caught by a constitutional disqualification… and to my mind that makes manifest, obvious good sense,” Barrow added.

Shoman noted that in the court case, a lot turned on the interpretation of the relevant section of the Belize Constitution. Her strongest point, she said, was what the framers had intended in writing the entire disqualification section. She had cited the White Paper before Independence, as well as the Marlboro House report, from an April 1981 conference to discuss the proposed Constitution, which indicated that “ALL” contracts were to be included in the provision.

Notwithstanding Shoman’s argument that the law must be given a purposive meaning, tied to the issues of transparency and accountability for all government contracts, the Chief Justice rested his interpretation on the English history of the provision, since the clause in the Belize Constitution of 1981, also existed in the pre-existing constitution of British Honduras, and the very clause in question was actually brought over from British law.

This was the central focus of the argument made by Denys Barrow, SC, King’s attorney, as he traced the origins of the provision, 58.1.h, dating back to the 1782 House of Commons Disqualification Act, leading up to the 20th century abolition. At the time that Belize adopted its new Constitution, the old English law had long been wiped off their books.

Barrow’s main contention in court was that the English law did not really cover all contracts, but was explicitly narrowed to money contracts, and contracts to provide merchandise and wares to the public service.

“It is clear from what the judge decided,” said Barrow, “that the Constitution does not intend to disqualify anybody because you have just the fact of a contract with the government. The Constitution intends to capture a limited class of contracts. Therefore this contract, as the judge has indicated, does not fall within the scope of that Constitutional disqualification. It will be only a contract which has the effect of putting a person directly into a contractual relationship with the civil service of the country that would be captured by the constitutional disqualification.”

Barrow also said, “I think a public officer would be caught by this particular provision,” and he said such an individual could be barred from serving in the House of Representatives as an elected member.

Barrow reiterated what he had told the court while presenting his arguments: “This law has always been regarded as obscure. It has been described as obscure, it has been described as having ridiculous results in England, yet we still have the vestiges of it…”

This might not be the end of the legal challenge against Mark King. Shoman told the press that the CJ’s decision is one she would choose to appeal, but she has to consult with her client and the rest of the legal team. She said she still maintains the view that section 58.1.h of the Constitution was meant to be interpreted in a wider way.

Martin Galvez did not have much to say after the ruling, and he told Amandala that he remains open to filing an appeal, but would consult with his attorney.

“At the end of the day, I respect them if they want to file an appeal or do anything else to come after me,” said King.

“The appeal is their constitutional right. I support their right to appeal, it’s their choice,” said Barrow. “I will not comment on the wisdom or folly of such a course.”

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