Features — 25 April 2018
Referendum to go to the ICJ – think it through!

“The hardest lesson I learnt at law school is that law and court is not about truth; it’s about who can present the best evidence!” – Audrey Matura, 2005.

I finished my legal studies in 2005 and when asked about it, I had to tell a friend that of all the things I learnt from all the books and lessons and exercise was that going to court does not mean the truth will prevail. As I began to practice before the courts I believed this even more and today, after thirteen years as an attorney, I am even more convinced by this. I have had cases with the seemingly strongest evidence collapse before the court, and I have seen cases that look tenuous or even weak succeed when I least expected it. This week alone while doing my cases I had two cases that seemed so strong against my client fall to naught. I have seen many cases, both ones I did and ones I read about, amount to a complete loss, even when we knew the losing party was telling the truth. You see, it is evidence presented before the court that makes or breaks a case! It is not legal opinions, nor theories, nor even knowing the law…. Just remember, it is all about the evidence. Of course, the assumption is that the court is an impartial decision-maker and will look at the evidence for what it is and give it the weight it deserves. But again a caveat is that judges are only human and they too see and interpret things and sometimes simple nuisances can be the turning point of a decision before the court.

One of the ethics of our profession requires that we never guarantee to a client that he/she will win a case. The truth is your client can be told he/she has a very good prospect of success, but as an attorney we really never know the outcome. We cannot tell if our evidence will fall short, if our witness will be as good on the stand as he was in office when he was talking big, or if there will be a small change of fact before the court that sways the decision the other way, and we don’t even know if the judges will accept the facts we presented, or will they rather believe that of our opponent. The law or legal principle as it stands may be certain, but how a judge applies it to the facts it accepts as evidence is never certain, that is, each case falls or rises on its own merits.

As a matter of procedure, bold assertions of success should be avoided. I saw one well-known politically rabid attorney take to Facebook and declare that Belize’s case before the ICJ is an “iron-clad case,” and assure that we cannot lose it and that on that basis people should vote “yes” on referendum day. That was of great concern to me since any ethical attorney knows that per our Legal Profession Rules at Rule 23(2), that should NOT be done. Said Rule states:

“An attorney should beware of proffering bold and confident assurances to his client …always bearing in mind that seldom are all the law and facts on the side of his client.”

The legal opinion

Now I know there is a famous legal opinion written by four illustrious attorneys who, I am sure, know that no case is a guarantee, but who, like any attorney, are skilled at preparing legal opinions. As a matter of fact, opinion writing is the mark of an attorney able to first look at the entire matter based on the information provided and then reducing in writing what he views are the strengths and weaknesses of the case. However, let’s not forget, it is only an opinion, it is not a ruling, it is not a decision of the court, it is the professional view of the author(s). The other side also have their views and it will be these two opposing views that the parties will take before the court, which may decide either way or may decide on some issues for one party and on other issues for the other party. Either way, no one party can guarantee the outcome and both parties go with the hope to win; no one wants to lose.

Now in relation to the ICJ, it must be understood how that court operates, which is partly different than local courts in the sense it is applying international law. Its website states, “Cases before the ICJ are resolved in one of three ways: (1) they can be settled by the parties at any time during the proceedings; (2) a state can discontinue the proceedings and withdraw at any point; or (3) the court can deliver a verdict. The ICJ decides disputes in accordance with international law as reflected in international conventions, international custom, general principles of law recognized by civilized nations, judicial decisions, and writings of the most highly qualified experts on international law. Although the judges deliberate in secret, their verdicts—rendered in both English and French—are delivered in open court. Any judge who does not agree in whole or in part with the court’s decision may file a separate opinion, and few decisions represent the unanimous opinion of the judges. The court’s judgment is final and without appeal.” [emphasis mine]

Thus while legal opinions can be compelling, I opine they only serve as a basis upon which a client is called upon to decide whether they will venture into the opinion of going to court, or they will avoid court and settle outside of court. Usually a person with a weak claim will seek to settle a claim or not even take it to court. Thus it seems that Guatemala also thinks it has a strong case and their legal opinion must be one in which they too are told that have a high prospect of success. Since said opinion, lots have changed for Belize in relation to how Guatemala has taken effective control of the Sarstoon River area, shadowing our military and claiming only to be giving them safe passage through the very territory that is ours. Our Foreign Minister’s words and conduct have left us in a dilemma since from my view he has not been assertive about our borders and territory, and his narrative seems to be aligned with that of the Guatemalans. I would want to see how these new facts and issues now impact on the legal opinion and to find out what is really the case that Guatemala will be taking to the ICJ, because now we are not sure what that case is.

To be continued in the Friday, April 27 issue of the Amandala

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Deshawn Swasey

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