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Court extends injunction against CWU 

HeadlineCourt extends injunction against CWU 

BELIZE CITY, Wed. Mar. 16, 2022– The Supreme Court has extended the interim injunction preventing the Christian Workers Union (CWU) from disbursing a $1.5-million ex-gratia payment to stevedores who belong to the union. They will have to wait until May 10 and 11, when the court will further hear a case brought by their employer, the Port of Belize Limited(PBL), seeking to block the ex-gratia payment that was made to the aggrieved workers on the waterfront. This week, during the budget presentation in the House of Representatives, Prime Minister John Briceno rose to introduce a supplementary appropriation bill to approve the $1.5 million payment to the stevedores. This bill is now set to go to the Senate this Friday for final approval. But the claimant, PBL, via its attorneys, has thrown another curveball at the union and government, and is now claiming that the payment should have been made from a contingencies account, which remains dormant and uncapitalized.

During this week’s sitting of the House of Representatives, Prime Minister Briceno stated, “Regrettably, quite apart from the impact on the Port and stevedores that these disputes caused, the wider implications of shutdowns and work stoppages at the Port are all too obvious. Commerce is held at ransom. Paralysis in the import and export process, even for a few hours can cause substantial commercial losses across the economy, drive up the price of goods and create scarcity of essential imports. The Supplementary Appropriation Bill, which I now table for consideration, is for the ex gratia payment of 1.5 million dollars, as agreed between the Port Authority of Belize, Ministry of Public Utilities and Logistics, and the Christian Workers Union on behalf of the stevedores, in a Memorandum of Understanding signed on February 3, 2022. This one-time payment recognizes that circumstances at the Port of Belize have changed since privatization in 2002, in other words, that certain commitments the stevedores understood were made to them have evolved in a different manner than they understood them to be.”

In reference to the dire impact of the standoff between PBL and the stevedores in January and the unforeseen and urgent nature of the issue he added, “Given that just over a month, at the height of the standoff, hundreds of containers were stranded, ships were being turned away from Belize, millions of dollars in imports and exports came to a standstill, millions of dollars in tax revenues were being lost, and the business climate stood to suffer potentially irreparable damage, Government judged that there was an urgent and unforeseen need to settle this matter promptly, and did so upon the terms set forth in the MOU. These terms included the immediate resumption of work at the Port by stevedores, and payment by Government to the stevedores of the sum of 1.5 million dollars in a timely manner, which the government duly effected.”

The Memorandum of Understanding signed between the government and the CWU was effected in late February, and the CWU immediately commenced efforts to put processes in place and get the necessary paperwork ready to pay over a hundred stevedores their portion of the humble payment on February 28, the date set out in the agreement for the payment. That process was brought to an abrupt halt by the injunction, which apparently resulted in a blockage of other important bank accounts needed for the CWU to pay its expenses. The president of the CWU had even told reporters that as a result of the injunction they had become a “financial pariah”.

In a recent interview, Hector Guerra, one of the attorneys for the claimant, said that the case hinged on the government’s issuance of the ex-gratia payment without the requisite parliamentary approval. He had stated, however, that even if the approval was granted they would revisit the matter (an apparent indication that they would find other legal grounds for blocking the payment).

This Friday, a Senate meeting is scheduled, and it is expected that the supplementary appropriation for the $1.5 million will be rubber-stamped by the upper house at that meeting. Despite this, the attorney for the claimant, Godfrey Smith, in an interview today, presented a new narrative:

“It must come, according to the Constitution, not from the Consolidated Revenue Fund but from another fund called a Contingencies Fund, and it appears that the payment did not come from that,” Senior Counsel Smith said.

He added, “the government can in a legitimate situation of urgent and unforeseen expense, must be genuinely urgent and definitely unforeseen, you can by special warrant make an expenditure, but it must come from a Contingencies Fund set up for that purpose into which monies have been voted for these unforeseen expenses. And then when you spend it out, you have to go back and take the appropriate document appropriations to parliament to replenish it. The government did set up this Contingencies Fund last year when it amended the Finance and Audit Reform Act and introduced the Contingencies Fund, but it appears that no monies have been put into it. So, put simply, you cannot, the Constitution does not allow you, even if it is urgent and unforeseen, even if it‘s legitimately urgent and unforeseen, you cannot draw it from the Consolidated Revenue Fund, it has to come from a special fund.”

As we have previously reported, the Contingencies Fund was established about 6 months ago, in October of 2021, and makes provision for issuance of urgent and unforeseen payments where no other law is available. The issue with the argument from the claimant’s attorney is whether or not the Contingencies Fund has even been activated – since it has not been capitalized since its establishment 6 months ago. The amendment to the Finance and Audit Reform Act, however, outlined that such capitalization should take place at the start of the fiscal year.

As mentioned, the budget for the Financial Year 2021-2021 was read sometime in April 2021. This amendment to the FARA was gazetted in October of the same year. The most recent budget has been presented and will be debated in a matter of days, but there is no indication as yet if the established Contingencies Fund will be capitalized.

Senior Counsel Godfrey is claiming, in reference to the recent judgment of Chief Justice Michelle Arana, that the case will be used to shed light on the grey nature of this area of law — as it relates to the authorization of expenditure from government coffers.  To a number of Belizeans, however, what seems more likely is that the judgement to which he refers is being used as a pretext by PBL and its affiliates to extend the economic pain that the injunction has caused to the stevedores.

The entity that Smith is currently representing in this case appears, on the surface, to be using a comparatively small payment, of a little over $1 million dollars that was paid to address the hardships suffered by the stevedores, as the basis for making a legal point. It is to be noted, however, that this entity— believed by most Belizeans to be a cluster of entities (PBL, Waterloo Enterprises, Belize Bank Limited) controlled by the “Ashcroft Alliance”— has been known to readily join any case in which it has even the slightest of interest, as an “interested party”. Yet, there is no indication that they in any way made any attempt to be involved in the case brought against the former prime minister, Rt. Hon. Dean Barrow, for the spending of $1.3 billion— literally a thousand times more than the amount given to the stevedores — without parliamentary approval. There seemed to be have been no interest on the part of the alliance at that time. It might also be interesting to note that there was no objection by the alliance that reportedly controls PBL over a decade ago when the then PUP administration provided the Belize Bank with a government guarantee for a private loan to a private healthcare facility without receiving Cabinet’s approval. And the records do not indicate that any protests or objections were put forth by that alliance when that administration proceeded to divert funds granted to the country for public purposes to the Belize Bank in an attempt to settle that debt.

In a May 2007 issue of the AMANDALA, entitled, “Belize Bank will defend UHS guarantee in court,” it was noted that it was the Association of Concerned Belizeans that brought a case to the court in an effort “to restrain the Government from paying the guarantee [to Belize Bank] without first getting permission from the National Assembly. The article further said, “The claimants say that the Government guarantee of the UHS debt was unlawful, because neither Cabinet nor the National Assembly had approved it, and therefore the Government should not pay it. The Government and the Belize Bank disagree.” Again, there was no objection to this type of arrangement by the “Ashcroft Alliance”— of which the Port of Belize Ltd. and the Belize Bank ( both of which were involved in the privatization that affected the stevedores) are said to be a part. This is the very entity that is now being represented in the attempt to block payment to the stevedores— supposedly with the aim of upholding parliamentary processes.

Senior Counsel Godfrey Smith unabashedly remarked to reporters, “What this whole case is about is the manner in which you go about making expenditure of public monies, taxpayers’ monies from the public purse. It comes at a very opportune time because …the judgment of former Chief Justice Kenneth Benjamin where he made certain pronouncements in terms of whether you could validate expenditure with supplementary appropriations, some doubt has been thrown into because of the failure of a perfected order and so on. So the issue, of the law remains unsettled and it needs to be clarified. “

Justice Lisa Shoman accepted that this question was of a serious enough nature to grant the extension of the interim injunction until the resolution of the matter in the two-day session scheduled for May 10 and 11. Until then, the payment which was to have been made to stevedores almost three weeks ago, and which has since received the approval of the House of Representatives, is still effectively blocked.

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