General — 01 April 2011 — by Aaron Humes
The trial for claim no. 846 of 2010, labeled “Belizeans for Justice v. The Prime Minister of Belize and the Attorney General of Belize”, took place today in the Supreme Court before Acting Chief Justice Samuel Awich.
The non-governmental organization Belizeans for Justice, headed by Yolanda Schakron, and its fellow NGO Citizens Organized for Liberty through Action (COLA), headed by Moses Sulph, seek declarations from the Acting Chief Justice that Prime Minister Dean Barrow’s refusal prior to, and since the coming into effect of the majority of the Belize Constitution (Sixth Amendment) Act 2010 (Act No. 13 of 2008) to bring Section 7 of the Act into force, is:
1) ultra vires of, inconsistent with and repugnant to powers granted to the Prime Minister by section 23 of the Act;
2) unreasonable, arbitrary, and contrary to the legislative intent of section 23 of the Act;
3) along with his public pronouncements, is a breach of the Claimant’s legitimate expectation that a thirteenth senator would be appointed shortly after the passage of the Act and that the Prime Minister as a public authority would uphold the rule of law; and
4) along with his public pronouncements, is in violation of the separation of powers doctrine and therefore unconstitutional and unlawful.
The public pronouncements referred to are two televised interviews with Channel 7 News director Jules Vasquez, one on March 24, 2010, shortly before P.M. Barrow’s decision not to bring section 7 into force with the rest of the Act on April 8, 2010, and another on August 6, 2010, in which the Prime Minister reportedly declared, “It ain’t going to happen…I am not going to do it,” in reference to bringing Section 7 into force.
In court, Senior Counsel Said W. Musa, representing Belizeans for Justice along with Anthony Sylvestre, noted that the Sixth Amendment Bill passed all its legislative stages, including the ¾ majority needed for constitutional amendments in the House of Representatives, and only due to ongoing litigation in the courts on other, unrelated portions of the Act, was delayed in assent by the Governor General, which was received on March 30, 2010.
The Order in the Gazette on April 8 concerning the Act excludes sections 5, 6, 7 and 9; but even after sections 5 and 6 were brought into force on December 1, 2010, section 7 remained untouched.
Musa told the Chief Justice that the Prime Minister thus had clear intentions to not bring section 7 into force, despite the expectation given to the NGO community that they would get a senator. APAMO, represented in court today by their development officer Edita Quiroz, in October of 2008 conducted an election in which first interested party Gregory Ch’oc, who was not present today, was nominated. The claimants are seeking an order which directs the Prime Minister to follow through on section 7 and seat Ch’oc, or any other APAMO nominee, in the Senate “at the earliest possible time.”
Section 23 of the Act empowers the Prime Minister to appoint a specific day when the full Act would be in force, and under the Interpretation Act, section 41(1), unless some other day is appointed apart from it, or the enforcement is postponed by the National Assembly, the Act takes effect when assented to by the Governor General. Section 58 takes “shall” as imperative, meaning it makes a demand.
There was no such postponement, or any indication that the refusal of the P.M. was expedient or necessary, Musa argued, and so the P.M. assumed unto himself the power of the legislature by his refusal.
The Government side has produced several examples of bills that either have never come into force, or been heavily delayed before doing so, because of a “change of circumstances,” but Musa argued that no such argument was made here, and that the Prime Minister’s statement containing his reasons for the delay, namely that the intended effect of the legislation (that the Opposition members and social partners would constitute a majority of the Senate), was no longer to his liking (despite having proposed it in opposition to the call for an elected Senate in the 2008 general elections), was “spurious” and demonstrated a clear going against the intent of the legislation.
The Prime Minister was mandated to bring the entire Act, including section 7, into force within a reasonable time, and in fulfillment of a manifesto promise by the ruling United Democratic Party (UDP) in 2008, and to now turn back on that promise after the Act has been passed, assented to and signed into law, goes against the legitimate expectation of the NGO’s that they would be represented, by Ch’oc or anyone else, in the Senate, he contended.
Musa also argued that P.M. Barrow had assumed the powers of the legislature while a member of the executive by refusing to enact Section 7, and that his duty is to enact the law, not defy the wishes of the National Assembly when they passed it.
Speaking with reporters after the case was adjourned this morning, Richard “Dickie” Bradley, attorney for COLA, noted that as presently constituted and selected, there is no guarantee that all the Opposition and social partner Senators together would not consistently work to oppose the Government in the Senate.
“Mr. Barrow has a right to change his mind; I have no problem with that. What he does not have a right to do is to say, after making the promise, proposing the Act, passing the Act, that the House has passed this, the Senate has passed this, the Governor General has signed it, but I will not bring it into force. He cannot defy the wishes of the legislature,” Bradley said.
“Is a majority of Opposition and social partner Senators necessarily a bad thing?” Musa asked. “They can’t oppose money bills, or delay a bill for more than six months, so that the House considers it again. But he [Barrow] has said that this is to punish the PUP, for opposing other sections of the Amendment,” he added.
This afternoon, Bradley pointed out that under the Amendment the President of the Senate, appointed from outside the body, has no casting vote, but that traditionally the Opposition and social partners are not known to agree often on issues before them.
Bradley told the Court that Barrow ought to have exercised his discretion within the law, and as head of the Executive as Prime Minister, was overriding the legislature by his refusal. If he had a different view now from back then, Bradley proposed, he could have gone back to the House to have further amendments or repeals made.
Bradley also made light of a statement by the legal advisor to the Ministry of Finance, Gian Ghandi, in his affidavit for the respondents, that he understood and verily believed that the Prime Minister would bring the section into force “at the appropriate time”, but did not expound further or say how he came to know that.
Crown Counsel Magali Perdomo pointed out in her submission that Section 23 was not peculiar to this act, and is a common provision under the Westminster System, to which Belize and many Caribbean countries subscribe.
She told the court that Section 19 of the Interpretation Act does grant the power to delay enactment of legislation “as may be necessary and expedient,” and maintained that the Prime Minister was and is acting squarely within those provisions.
She stated that there were three issues at the forefront: whether Section 23 imposes a legally enforceable duty to act or merely a power granted to the P.M. by the Legislature, the extent of the Prime Minister’s duties or powers, and the Court’s jurisdiction, if any, to intervene if the P.M. does not exercise his discretion under the section.
Perdomo submitted that it was a power granted to Barrow by the National Assembly, that there was no refusal to ever bring the section into force, merely a consideration that he would do so at the appropriate time, and that the court in any event should not intervene at this time, lest it overstep its own boundaries under the separation of powers doctrine.
Arguments concluded around 4:30 this evening and Chief Justice Awich set the date for judgment as June 28, 2011, at 2:30 in the afternoon.