When Prime Minister Dean Barrow proclaimed in the House of Representatives last Friday, that the passage of the Belize Constitution 9th Amendment Bill in the House was his party’s “finest hour,” he may have spoken prematurely.
Opponents of the bill, dubbed the “Ashcroft Alliance,” on Friday, managed to invoke a special sitting of the Belize Court of Appeal on Saturday, to ask the court for an injunction to prevent the Attorney General from passing the bill for signing to the Governor General, until a referendum is held, as has been requested by purportedly 21,000 voters through a petition.
On Saturday morning at approximately 10:00, a former Attorney General of the United Kingdom (UK), Lord Peter Goldsmith, and former PUP minister, attorney Godfrey Smith, appeared for PUP functionaries Vaughan Gill and Ricardo Castillo, and senior attorney, Lois Young, appeared for Government before a single judge of the Court of Appeal, Justice Douglas Mendes.
Justice Mendes was to decide on Saturday whether or not to allow an interim injunction stopping the Attorney General from presenting to the Governor General the Belize Constitution Ninth Amendment Bill for signing, which would then officially make the bill a law.
In fact, the decision, a temporary injunction, was made today, Monday 24, by the full court.
Today at approximately 2:00 p.m., the full court was convened.
The issue before this Appeals Court is based on the assertion by the appellants, Vaughan Gill and Eduardo Castillo, that a referendum should be held prior to the finalizing of the bill as a part of the Belize Constitution.
The appellants had initially applied to the Supreme Court to request a hearing for an interim injunction, and their application had been heard on Wednesday, October 19, 2011, by Chief Justice Kenneth Benjamin, who, after hearing the case, reserved his decision until Friday, October 21. He then announced that he had rejected the appellants’ application. (See story by this reporter elsewhere in this issue.)
Over this weekend alone, the Court of Appeal met twice, something that is unprecedented in our country. It started when the Court of Appeal received an application on Friday, October 21, 2011, from the appellant attorneys, the former Attorney General of the United Kingdom (UK), Lord Peter Goldsmith and attorney Godfrey Smith to hear their case as expeditiously as possible.
The appellant’s attorneys based their request for an immediate hearing to the Appeals Court on their conviction that the finalizing of the 9th Amendment into the Belize Constitution would take place the following Monday, October 24, 2011, at which time the Senate would meet.
On Saturday, October 22, 2011, at approximately 10:00 a.m., attorney Lois Young, representing the respondents, the Prime Minister of Belize, Hon. Dean Barrow, and the Attorney General, Bernard Q. Pitts, along with the appellants’ attorneys, met for a sitting of the Appeals Court which was being presided over by Justice Douglas Mendes.
Mendes is of Trinidadian origin and has been serving as a Justice of the Belize Court of Appeal since June, 2011.
On Saturday the court and both parties discussed the reasons for which they stood before the court. The appellants requested that Mendes ensure some sort of preservation of the “status quo”, by means of an undertaking by the Government of Belize that it would not present the 9th Amendment Bill in the Senate on Monday until a complete Appeals Court hearing had been conducted.
Young told the court that, due to the short notice of the request to ask her client (PM Barrow) if an undertaking could be agreed on, a meeting with her client would not be possible for the remainder of that day, Saturday.
The court, based on an initial proposal for a full-week’s hearing on the matter, gave Young the needed time – the remainder of that day and Sunday, October 23, 2011, to get a response on the proposed undertaking from her client.
All parties then agreed to reconvene on Sunday at 3:00 p.m.
On Sunday; however, at 3:00 p.m., when both parties entered the court, Young informed the court that according to the Constitution the Court of Appeal shall not have a sitting on public and bank holidays, nor on Sundays.
Young further explained that the Belize Constitution specified that the decision of the court on these “off” days of the court would be void if rendered. The court, after hearing litigation from the appellants and after reviewing the section of the Belize Constitution as it regards these “off” days upheld Young’s argument. The court then deemed that the Sunday meeting was not an official sitting.
Nevertheless both sides were given orders by Mendes to submit their written, electronic submissions by 9:00 p.m., Sunday, after which he would review the arguments in the submissions from both sides and determine whether he alone, as a single judge of the Court of Appeals, could sit on the case and make a ruling on the injunction application without a full court hearing with the other two judges.
Mendes and the two parties met again in a scheduled court session at 6:00 a.m. today, at which time Mendes announced that after reviewing the argument points of both sides on his jurisdiction as a solo judge on this case, he would in fact be able to render a judgment, and he thus started the application hearing.
At that point, Young divulged that her clients did not agree to enter into the requested undertaking.
Goldsmith then made his case based on claims that there were legitimate expectations by the people of Belize that a referendum, which is not binding and is purely a consultative and advisory exercise, would be conducted, as a result of the Prime Minister’s “misrepresentation.”
Goldsmith argued that the PM agreed, through statements made to the media, to carry through with a referendum but that the PM, in another interview, had stated that he would not hold a referendum.
Young then argued against these points by noting that the PM had agreed, not to a referendum, but rather to a consultation process, and that further, there could not have been a legitimate expectation by the people for a referendum.
Goldsmith further postulated that the democracy of Belize should remain as is, suggesting that GOB is seeking to put parliament before the will of the people by not allowing a referendum before the signing of the 9th Amendment Bill by the Governor General and the Attorney General.
Both parties based their arguments, as to whether or not a referendum should be placed before the official signing of the bill and whether or not the signing of the bill before a referendum would hinder or cause irreparable damages to the process on which the referendum is based, the Referendum Act.
After hearing both sides today in the courtroom, Mendes ruled in favor of the respondents and ruled against the request for an injunction to block the AG from signing the 9th Amendment Bill into law. He further stated that the appellants’ case “…has very little chance of success”.
Mendes was then informed by the appellants that they wished to appeal his judgment and move to a full court hearing by three presiding judges. Mendes agreed to preserve the “status quo” by issuing a temporary injunction on the PM and the AG, preventing them from sending the bill to the Governor General for signing into law.
We asked Young to comment on the proceedings at this point. She told us that it has been “A whirlwind over nonsense!”
The temporary injunction on the PM and AG will remain in effect until 4:00 p.m., Tuesday, October 25, 2011, or until the ruling is made based on the full court hearing by the Court of Appeal, which immediately took place, also today, at 2:00 p.m.
Both sittings of the Appeals Court today reviewed only the skeletal outline of the respected parties’ arguments. For this sitting of the full court hearing, the brother of PM Barrow, former justice Denys Barrow appeared, along with Young.
Denys Barrow told us today on the issue of the temporary injunction on the AG that, “The Privy Council made a pronouncement and said that it is an exceptional course to take, that a court has to be extremely careful of doing something of that sort, and should not lightly or as it were, easily, readily do it; they need to hesitate greatly before doing it.
“I do not think, in fairness to Justice Mendes, that he was purporting to do that, he refused to grant the injunction, but he thought that in fairness, he would hold the position [status quo] until the claimants are able to make an application to the full court.”
Barrow spoke on a point which he also brought up during the full court hearing today:
“We now step out of the legal area into the political arena. Why are they [the appellants] protracting this matter? We would be making the submission to the court that this is a political matter.
“…Justice Mendes said the case, the application, has no real chance of success; this is an expression, in a hallowed phrase made by justices of appeal, when they are about to dismiss an application for leave to appeal.”
Godfrey Smith told us this evening, “I will not deny that it is not the easiest of cases, but I thought that our side made sufficient points; I feel it would have been worth it [the process of the courts] regardless of how the decision goes, because I think it’s good for democracy, it’s invigorating for the democratic process, and you know, a lot of people have said, how come [the court sat] on Saturday and Sunday etc.; six in the morning.
“…there is nothing extraordinary about that you know, they provide a service like every other service provider, and providing you can show that your situation merits an emergency hearing, courts should do it.”
Smith further told us: “This case is about the Referendum Act.”
The full court hearing concluded close to 5:30 p.m. today. The panel of three judges reserved their ruling until 2:00 p.m. tomorrow, Tuesday. Until that time, the “status quo” remains.