Features — 06 April 2019
NO case is IRONCLAD!

I have stayed out of the fray of the ICJ debate for a long time, and it was not until the last two months, more or less, that I have publicly participated in the debate and discussion. Of course, this decision means that I have endured much trolling by the yes-ers, in particular four personalities all connected and related and not worth mentioning.

Of course, it means I have been bullied and called a fear-monger and hysterical because I express my view and dare to stand my ground independently of any organization, NGO, movement, political party or enclave of fanatics.  I know I have my own credibility and can stand on my own grounds.

But, yes, I have been trolled and bullied by the very same persons who are themselves the true fear-mongers and hysterical when they lose a point!  I say all this because it seems that some of the nastiness over this ICJ issue has escalated and has become much more obscene, and for some, it is about promoting themselves more than the interest of the country.

No matter how much of a bully some of these personalities can become, I do not wish to see anyone being threatened, killed, abused, or called names publicly because of their position. No need to get so personal and angry if you believe you can live with your conscience. No need to screenshot my posts and try and ridicule me, no need to get your entire radio station and minions to attack, once you are sure of your position and credibility; no need to try and bring me down so you look good or bigger, badder and  better.

Everyone has a right to a position, even if you think it is wrong, but those same people must likewise respect other’s position, but they too forget that karma is real.

I call on all Belizeans to remain level-headed, even if you feel our political leaders or certain characters, or Facebook personalities have been rude, stupid, a bully, a traitor, a tyrant, a liar, an intimidator; and regardless of any negative thoughts you have of them. Remember, they might be thinking the same about you, and they have had restraint not to act up on it in relation to you, so please be mature and don’t reach that level.

My rule is simple; if you come on my page and comment, I will answer you, but I will not go on your page and troll you. And if I go on another person’s page and you come there to troll me, I will answer you, and if you call me out publicly, I will call you out back publicly … but I will not resort to name-calling, bullying, or threats, and intimidation. We can have a healthy debate or can avoid each other, and sometimes, it is best to walk away.

I will repost anything that is public record or past news stories or past interviews or quotes, simply because it is not made up and its public record, and some of you I will just ignore because nothing you say will change my mind. You have either lost credibility with me, or I never trusted you after you showed your true colours, or I outright don’t wish to cross my precious energy with yours.

I will exercise restraint and I now will review and rethink my way of dealing with this, just because I know I have a public responsibility to those who look up to me or rely on me to raise the conduct during this debate to a higher level. Want it or not, I recognize I have a public persona and my public conduct means I must act responsibly and lead by example.

With that said, I know by now many are suffering Referendum and ICJ fatigue. This is sad, because what was supposed to be an issue that truly was non-partisan and purely educational, has turned out to be so divisive and nasty, and after a while the fatigue sets in. We need a cooling down period, and I wish we would have a magnanimous leader to know it is not weakness to step back, but rather strength to lead by knowing when your people are at breaking point.

All cases have a risk

Now, I have made it known clearly what my position for the vote on referendum day is. It is no secret that I will vote NO and I have given my reasons and I have questioned a range of things — from the validity of the process to the assertions being made by trained attorneys who are saying that “the case is ironclad”. They are acting unethically to say so, and I wish the Bar Association would send them a letter to remind them of the law that governs the ethics of the profession.

Sadly, many are senior attorneys and in the case of the Prime Minister, he is part of government. I as an attorney know that ABSOLUTLEY NO CASE is ever ironclad. They all carry a risk, but at the end of the day, going to court means someone will win and someone will lose. That is why it is an adversarial system.

So the question is whether people understand the risk and are willing to take the risk. Sadly, the risks are the very issues these ICJ-proponents refuse to address, and to me that is very irresponsible. I was at court all of this week and involved in two separate trials. In one I was sure I could not win the argument easily, and I prepared my client for it because he could have lost his case and in the process, his property; yet, I went and argued my heart out, and lo and behold, we won that round.

Then I was in another case and all seemed well and we were ready to bring that case to an end; we empanelled the jury and then we had to declare a mistrial. Of course, criminal cases are of their own category.

The other case was a civil case. But my point is that while all cases rise or fall on their own facts and merits, none … and I mean absolutely none, is without litigation risk and NONE is ironclad!

I know there are those who just don’t bother going into the details of the issue and are frustrated by the re-registration process that is so flawed and is disenfranchising voters.  Some are so tired they are saying “let’s just get over it,” or “no matter what let’s just go to court and bring this to an end”. That is their view and right; however, it’s only human nature that when you become frustrated and have been exhausted to the point of surrender, you try to find a way to get rid of the problem by just giving in and saying “ok, just do what you want so I don’t hear about this anymore.”

Questions not answered by the GOB & Referendum Unit!

In concluding or arriving at a decision these are some of the things that mattered to me. Please reconsider this defeatist approach and keep in mind the following:

1.    If we’re so sure it’s the right thing to hold a referendum and give the people a say, why reduce our referendum threshold from 60% of voters who must participate to make it valid, to just a simple majority of any amount who come out to vote now?

2.    If you’re so sure you want a referendum in order to give the people a say, why put all the money into a yes-campaign instead of an educational campaign?

3.    If you really wanted to give the people an option of voting “yes” or “no”, why were the UDP, Cabinet and Dean Barrow the first to go public with a political position prompting the PUP to follow suit? Why not just have faith that the people could have made their own choice in the interest of the country they all equally own?

4.    If indeed you were serious about the referendum and truly wanted people to vote either “yes” or “no”, why tell them they have a choice and turn around and tell them how to vote and thus to vote “yes” and then launch a biased campaign using money donated by foreign interests and tax-payers’ money?

5.    If we really respect the intelligence of our people, why tell them this is the only chance we have to go to court? This is an outright lie, because in past history, when the British wanted to go to the ICJ the Guatemalan government said no, and the Guatemalans did not think it was the only opportunity they would get to go to court. They waited out and prepared for the time when they would be a stronger nation.

6.    The ICJ will not stop existing … and we don’t have a crystal ball telling us that two, three or several generations from now will not be able to negotiate a better option to resolve it or that they could not negotiate better terms to go to the ICJ when we in Belize have placed ourselves on better footing. No need to hurry!

7.    If we honestly want this referendum, the first ever of this kind that we’re doing, to have any credibility and integrity, why all the illegalities at the Election and Boundaries, where at least one employee is being transferred for refusing to place on the list a person who came to register on the 15th March when the deadline to be on the referendum list was 12th March?

8.    If we really want this referendum to be one beyond reproach, why rush it? Why not take time and do the registration and do the process right and then hold it on a future date, especially since we already allowed Guatemala to go ahead and have their own referendum? After all, the compromis (Special Agreement) was amended to suit Guatemala; why can’t we amend it to suit our current crisis? Remember, we were to hold this referendum simultaneously.

9.    If the government really wanted the people involved, why did PM Barrow pass the law to allow for re-registration just eight (8) months before referendum day, thereby disenfranchising so many people and totally excluding those in the diaspora?  Why? Why? Why? Why not do it long before to give enough time for all to re-register. Or why not hold the referendum at least a year after re-registration?

10.    It reeks of malice, so why would you want to vote a yes, in a process so fundamentally manipulated to get only yes-votes, yet you are told you have a say? It cannot be that your yes will help sanction what is outright corrupt and manipulated and dishonest!

To me, my No vote is a reasonable out by me, and it is in part to protest a flawed process, especially the corruption in the re-registration process. It also protests the dishonesty of telling us we have a choice and yet we are being herded to only vote yes; it is a protest against all those past failed prime ministers and foreign minister who failed us and yet want to tell us what to do. And it is a protest against not being told what the litigation risk is and a protest against the lies of all those attorneys who tell us we have an ironclad case when they know they are being unethical, so I know better and thus I cannot trust them! How can I trust those leaders and especially those trained as attorneys who are outright lying and being unethical? And why don’t they tell us the risk and also tell us Plan-B if we vote no or if we lose some territory or anything to Guatemala? I will participate in the corrupt and flawed process, but only to vote my resounding NO! TO ICJ.

At the end of the day I will not tell anyone how to vote. Many have asked me how I think they should vote, and although I am voting NO for my own reasons, I refuse to tell others how to vote but share why I am voting NO! And the reason I will not tell anyone how to vote is that I think it goes against the principle that they have a choice and then I or anyone will then dictate that choice! I will not be a hypocrite and tell anyone how to vote because my very complaint is that the government was to have a true educational campaign and not tell anyone how to vote!

Court case can go either way

So by now many have heard or read the news that the members and especially the leader of the PUP have filed a challenge against the government, questioning the legality of the Special Agreement, the writ of Referendum issued by the Governor General, as I understand the gist of the case. Therefore, they filed for an injunction to stop the Referendum being carried out until the case they filed is heard. The Chief Justice granted the injunction and I hear the PM says they will appeal it etc. Do follow up on the case, my readers, as GOB is not happy and will pull all stops out!

However, I mention this case because I want to drive home the point that no case is ironclad. Both sides were confident they would win and when one lost, they had no backup plan built into their response.  Now I hear there will be an application by the losers to try and vary the injunction to allow the referendum to still take place.
Hmmm, that will be interesting, since then that defeats the case in my view. Even if they say they will count the ballots and not let the results be declared publicly until the end of the case, it means those in government will in advance get wind of the results and can use that to their advantage.

 It’s unfair, totally unfair. But this is all part of litigation risk! A risk, or litigation risk, that three failed Prime Ministers (Said Musa, Dean Barrow, Manuel Esquivel) and five failed Foreign Ministers (Dean Barrow, Said Musa, Godfrey Smith, Lisa Shoman and Assad Shoman), who all failed to successfully end the claim,  are now refusing to discuss in relation to this “ironclad” case!

 After all, NO case is ironclad!

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Deshawn Swasey

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