The Supreme Court of Belize has seen a remarkable growth in both the number and scope of public law cases brought by special interest groups, unions, private citizens, and business people, who have come to understand the power of the judiciary to provide a much-needed check and balance over the executive and legislative arms of Government, and against possible abuses of power. The Maya of Toledo, the National Trade Union Congress of Belize, the Belize Telecommunications (Telemedia) Limited, the Association of Concerned Belizeans, the Printers Association, and the Belize Chamber of Commerce and Industry are but a few examples of the litigants that have sought the court’s aid in answering some very critical questions about public affairs, bringing an unprecedented level of courtroom challenges to Government’s actions and policies.
It is in line with this emergent trend that an association claiming to represent 240 landowners nationally, as well as four private citizens, and one of Belize’s big-time landowners, business magnate Barry Bowen, a former People’s United Party Senator, have all taken the Government of Belize to court in two separate law suits, claiming that Government is trying to take away their rights in petroleum, minerals and other valuable substances without due process, and furthermore removing their power to challenge the Government in court. The landowners have gone to the court to have the proposed amendment struck down before it finds its way onto the law books of Belize.
The bone of contention is clause 2 of the 6th amendment bill to the Belize Constitution – a bill that was passed by the National Assembly in August after nationwide consultations, but which has yet to be signed into law by the Governor-General. The claimants say the amendment, which effects changes to Section 17 of the Belize Constitution, violates the very spirit and letter of that document, which is held as supreme law, and which, they believe, underpins the very foundation of the Belizean democracy, assuring protection from arbitrary deprivation of property.
Attorney Eamon Courtenay, SC, who represents Barry Bowen, told the court that never before has anyone challenged Parliament’s move to change the Belize Constitution. (This is the sixth time lawmakers are making changes to the document.)
The litigants contend that apart from taking away property rights and interest they may have in petroleum, minerals and other valuable substances, the Government has gone further to block any move they might make to seek redress in court.
Even before the cases in question could make it to hearing this week, however, the Government had stepped up its defensive strategy by asking the Chief Justice, Dr. Abdulai Conteh, to strike out the claims altogether, on the grounds that the requirements in the Constitution had all been complied with. Government’s attorney, Lois Young, pointed to requirements for a 90-day waiting period between the first and second readings of the bill, and a three-fourths majority in the House of Representatives plus a simple majority in the Senate. She furthermore said that the claimants really had no standing to bring the case, because they have no proof that any petroleum, minerals or accompanying substances are on or under their land. The Chief Justice decided, however, that the landowners, given the nature of their claim, must have their day in court.
In one case, the Belize Landowners Association, and its secretary and treasurer, Ivan Roberts, had filed a claim jointly with Pearl Trapp, Hector Montero, and Jovita Miranda, calling on the court to strike out the part of the Constitutional Amendment they say is offensive. Bowen’s case, filed separately, asks the court to do the exact same thing – strike down clause 2 of the amendment bill.
The association and its co-litigants are represented by a team of three attorneys – lead counsel Dickie Bradley, along with Anthony Sylvestre, Jr., and Arthur Saldivar.
In court today, Bradley contended that Parliament had, in his view, exercised a forbidden power – that is, tampering with the citizen’s rights to seek redress from the court.
It is outside the power of lawmakers to do that, said Bradley, calling the move a violation of the principle of separation of powers, which dictates that lawmakers and overseers of the law inside the courtroom should respect each other’s territory.
Bradley told the court that it was a serious trespass and violation for the National Assembly to block access to the courts and abolish the citizens’ rights to seek legal redress – an abrogation of rights he contends the Belize Constitution, from cover to cover, does not allow.
Bradley adopted the legal arguments made by Courtenay, SC, who was the first attorney to make presentations to the court on Tuesday and Wednesday. The crux of Courtenay’s case is his contention that while Government does have the power to take for itself and the people of Belize petroleum, mineral and other related resources, it cannot do so without due process that allows landowners fair compensation for loss of property, and without respecting their right to bring challenges before the court where they feel their property rights have been violated and where they feel payments such as royalties are not correct.
In arguing for Bowen, who owns, among other parcels, 3,000 acres in Stann Creek, Eamon Courtenay laid out the historical matrix against which the Belize Constitution was brought into force in 1981, at the time of the country’s Independence. He said that it was the people of Belize, through what he said was a mandate given in the 1979 elections for an independent Belize, as well as wide public consultations based on a White Paper, the Constitution Conference at Marlboro House (London) the April before Independence, and approval by the National Assembly, that was the roadmap for what became the Constitution that was now the focus of the courts.
But Government’s attorney, Lois Young, told the court that while the historical lesson was intriguing, it really had nothing to do with the real issues before the court.
Courtenay rebutted that it has absolutely everything to do with what the court will have to determine in making a decision as to how far lawmakers can go in making changes to the Belize Constitution.
Today the Chief Justice raised the question of whether lawmakers can decide, based on the powers set out in the Constitution, to make Belize a department of Guatemala, for instance. Young replied that even though the Constitution does give them that power, such an act would be absurd. She argued that the very Constitution gives lawmakers the power to revoke the constitution, with no requirement for them to make any enactment to put something new in its place. Young insists that Parliament has the power to make the amendments they did, and followed the right procedure set out in the Constitution.
She additionally told the court that for one, ordinances in 1929 and 1937 had vested in the Crown (later the Government of Belize) mineral and petroleum rights, respectively. The Government is now enshrining that ownership in the Belize Constitution, with a clause that says the vesting is being made in the Government and the people of Belize, with retroactive effect.
As to the allegation by the landowners that they are being denied access to the courts to challenge Government on their mineral and petroleum interests, Young said that since the resources have belonged to the Government even before the Constitution was formed, there was no question of Government being accused of taking away any minerals or petroleum from landowners by compulsory acquisition, because it is the Government that owns them.
She moreover argued that because landowners can claim no ownership of those resources, they could have no cause to go before the court to claim any property interests or rights.
One landowner, Ivan Roberts, told our newspaper that the mere fact that landowners are paid royalties, for example, for petroleum found under their land, is proof that they do have property rights in the resources.
There was an extraordinary turn of events this afternoon when the court permitted Lois Young to cross-examine Ivan Roberts on the stand. Young told the court that she wanted to question Roberts about his affidavit in which he claimed that petroleum has been found on his 25-acre plot of land in Never Delay, Cayo.
Roberts admitted that there was never any boring done on his land to explore for petroleum, but he contends that oil spewed 40 feet in the air when a well was dug on Bill Bowman’s land, right next to his. He told the court that Belize Natural Energy, which has a permit to explore the area for oil, had called in 10 landowners, himself included, to inform them that they would have their share in the oil through royalties.
Young pointed out to the court, however, that royalty does not come from BNE: it comes from the Government of Belize.
She told the court that with respect to the petroleum resources, 71 years ago the ownership of petroleum was vested in the Government – and it belonged to the Government at the time of Independence, when the Constitution was adopted.
In his written submission to the court, Courtenay had said that his client is not disputing Government’s claim that it is making the amendments to the Constitution, claiming public ownership of petroleum and minerals “in the public interest.” What the litigant is saying, he explains, is that they want their right to ventilate their issues before the court to be safeguarded.
Today, Lois Young flatly rejected the arguments of the claimants that the Government is removing their rights, and she told the court that nothing in the amendment in question affects the rights that landowners now have, because while they may own the land, they do not own the petroleum or the minerals that may be found on it.
The Chief Justice tried to resolve the question of why the Government was coming so many years after the vesting of the resources in the Government to now make changes to the Constitution. But a wider implication of the cases is that they seek to ask the court’s interpretation on exactly how far Parliament can go in changing the Constitution? Can they make Belize a department of Guatemala or change the definition of Belize’s territory, as described by the Constitution, by casting their votes in the National Assembly without consulting the people of Belize? Can they revoke the entire thing, if they so choose and leave us without any legal framework for the very nation state that now exists?
The hearing of this milestone case of the landowners versus the Government of Belize is set to resume in the Chief Justice’s courtroom at 10:00 Friday morning with more arguments from the Government’s side.