Headline — 06 April 2019 — by Rowland A. Parks
CJ puts April 10 ICJ referendum on pause

PUP jubilant; GOB vexed; Monday, April 8, date for beginning the hearing of the substantive case

BELIZE CITY, Wed. Apr. 3, 2019– The area near the Supreme Court sprang to life when members of the Opposition People’s United Party (PUP)  walked into the area and stopped at the steps of the court building, where they recited the National Prayer before proceeding upstairs to the courtroom of the Hon. Chief Justice, Kenneth Benjamin.

Inside the courtroom, for a few minutes a cordial atmosphere prevailed between the opposing sides of the United Democratic Party and the PUP, until the Court Marshall entered shortly after 2:00 p.m. and placed the Chief Justice’s books on top of his raised desk. The Marshall walked out and came back in, announcing “His Lordship, the Chief Justice,” as everyone inside rose to their feet, then sat down to await the historic decision in Claim 151 of 2019.

CJ Benjamin began reading from his judgment and about 35 minutes into his reading, the courtroom erupted into a loud roar, as the judge announced that he was granting the interim injunction to halt the April 10 International Court of Justice referendum.

Before arriving at that point in the judgment, the Chief Justice meticulously went over the submissions made by the claimants and those of the government’s attorneys.

The claim is of the highest national importance and the relief sought is that the defendants (Prime Minister Dean Barrow; Foreign Minister Wilfred Elrington; Chief Elections Officer, Josephine Tamai; and the Attorney General, Michael Peyrefitte) be restrained from holding the referendum on April 10.

CJ Benjamin continued, saying that the territory of Belize is defined in Schedule 1 of Belize’s Constitution and that the United Kingdom and Belize have consistently disputed the Guatemalan claim.

The Chief Justice went on to say in his judgment that the Secretary General of the Organization of American States recommended the ICJ approach to Belize and Guatemala and that on December 8, 2008, Belize and Guatemala signed the Special Agreement (Compromis). Belize’s Foreign Minister signed on behalf of the Government of Belize.

CJ Benjamin went on to read Article 1 of the Special Agreement, which speaks of submitting the territorial dispute to the ICJ. The judge also read Article 5, which describes the implementation of the decision of the court and the appointment of a bi-national commission to demarcate the borders between the two countries.

The Chief Justice said that for the purpose of the hearing, Article 7-1 was the most important because it addresses the fact that the parties have to satisfy all legal requirements in their respective national systems to hold a referendum.

The question for the referendum was read: “Do you agree that any legal claim of Guatemala against Belize relating to land and insular territories and to any maritime areas pertaining to these territories should be submitted to the International Court of Justice for final settlement and that it determine finally the boundaries of the respective territories and areas of the Parties?”

 Article 7 (2), which deals with the holding of the referendum, was also read, and after that,  CJ Benjamin went on to say that on May 25, 2015, the protocol to the Special Agreement was signed by Belize and Guatemala.

The Special Agreement was introduced to Belize’s Senate and ratified in November 2016.

In his affidavit, claimant Michael Espat, Toledo East, told the court that the Special Agreement has not been tabled in the House of Representatives for debate.

On January 28, Prime Minister Dean Barrow sent a letter to the Governor General requesting that he issue a writ of referendum.

CJ Benjamin also referenced the affidavit of Emil Arguelles, Ambassador Alexis Rosado, Assad Shoman and Michael Peyrefitte, who stated in their affidavit that they have legitimate expectation that the referendum will be held, and they will vote in it.

The principle is that the Executive has the power to enter into treaties unassailable and both parties agree to this, the CJ said.

The writ of referendum was issued to 31 constituencies by the Governor General on February 25, 2019. The writ of referendum issued by the Governor General, however, spoke about a “proposed settlement with the Republic of Guatemala.”

The writ of referendum referred to Section 2 (B) (1) of the Referendum Act.

CJ Benjamin said that the defendants’ response was less than robust and persuasive, and that the referendum itself does not amount to a settlement of the dispute.

Chief Justice Benjamin then announced that the Chief Elections Officer should be restrained from holding the referendum until the trial of the claim.

As Chief Justice Benjamin finished reading his judgment, attorney Lisa Shoman, SC, got to her feet and asked the judge if he would consider varying his order, so that the April 10 referendum could be held. She said that the referendum could be held and the Chief Elections Officer would wait until after the case is finished before making the results official.

Eamon Courtenay, SC, the lead attorney for the claimants, told the court that that was a very strange proposal. Courtenay told the court, however, that he had to take instruction from his clients.

Shoman offered to put in writing by Thursday, April 4, her submission for the Chief Justice to vary his order.

CJ Benjamin set Monday, April 8, as the next date for beginning the hearing of the substantive case, which is a claim challenging the constitutionality of the Special Agreement.

The PUP have gone from being indecisive to formally adopting a no to the ICJ position. The event that led to the massive, albeit temporary, legal defeat of the Barrow government’s ICJ referendum effort has its genesis in a meeting of the PUP’s Southern Caucus last August at Malacate Beach in Independence, Stann Creek District.

That meeting was attended by National Deputy Leader Hon. Cordel Hyde, area representative of Lake Independence, and other PUP parliamentarians. Events moved rapidly and the PUP went on a national consultation campaign before adopting its no position to the ICJ.

The constitutional challenge is based on a Joint Legal Opinion that was researched by attorneys Anthony Sylvestre, Dickie Bradley and Kareem Musa, whose research is buttressed by a number of Commonwealth case laws, including cases from Belize, which point to a violation of the separation of powers doctrine when Belize’s Foreign Minister, as a member, signed the Special Agreement and it was ratified and adopted as a treaty without any domestic legislation to give it effect in domestic law.

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