The issue of whether Prime Minister Dean Barrow needs to call a national referendum on the proposed changes to the Belize Constitution 6th Amendment Bill came into sharp focus today before Chief Justice Dr. Abdulai Conteh during the hearing of a case filed by four citizens aligned with the Opposition People’s United Party (PUP).
The case is one of major public importance, as it seeks to probe whether the Prime Minister has failed to carry out what the 4 citizens contend is his statutory duty to call a referendum, and whether their rights as Belizean citizens were infringed when the National Assembly proceeded to hear a proposal for the constitutional changes without consulting with voters.
Two impassioned attorneys took the floor for their clients – on the one side, it was Lisa Shoman arguing for Alberto Vellos, Dorla Dawson, Yasin Shoman, and Darrell Carter; on the other, it was Lois Young, Senior Counsel, arguing for Prime Minister Barrow and the Attorney General, Wilfred Elrington, the defendants in the case.
PM Barrow, Carter and Vellos were among those present in court today to witness the hearings.
Last month the Chief Justice had issued an injunction ordering that Elrington should hold off on getting the signature of the Governor-General, Sir Colville Young, to finalize changes to the Referendum (Amendment) Bill, which had the stamp of approval from the House at the time and later got the approval of the Senate.
The substance of the case being made by the claimants is that under section 2.2.a. of the existing Referendum Act, a referendum is required when changes are being made to part 2 of the Belize Constitution – changes such as those being made in the 6th Amendment Bill. The claimants contend that some of their fundamental rights and freedoms would be in peril under the changes proposed.
Shoman pointed to sections of the Belize Constitution 6th Amendment Bill that seek to change provisions for the protection of children engaged in criminal and other activity, as well as anti-social behavior, and the detention of persons suspected of being involved with, or likely to commit, a serious offense for up to seven days in the first instance, and for an extended period of a month. The amendments also change provisions to protect property rights for petroleum, minerals and other such accompanying substances – vesting the property, instead, in the Government of Belize, exclusively, and giving that change retroactive effect by saying, “it should be deemed to always have been so,” Shoman also pointed out.
Shoman pointed to the affidavit of Alberto Vellos, which deposes that a nexus exists between the Referendum (Amendment) Bill and the 6th Amendment Bill, in that the existing law creates a legitimate expectation that the Prime Minister would call on the G-G to issue a writ of referendum before going to the House with the constitutional amendments.
Both attorneys, as well as Chief Justice Conteh, acknowledged that there exists a set of provisions under Section 69 of the Belize Constitution which set out specific rules for making constitutional amendments. The Government side contends that these supersede the provision of the Referendum Act requiring a referendum to change fundamental rights and freedoms listed in the Constitution.
Attorney Lois Young argued that the provisions of the existing Referendum Act, for which legislators of the National Assembly have passed amendments, are “unconstitutional.” She said that the provisions of the Referendum Act that the current legislators have sought to amend, place additional fetters on legislative powers in a manner contrary to the Constitution.
A critical question arising today is whether the Government can proceed with the amendments to the Referendum Act – now frozen by a court injunction – while the Belize Constitution 6th Amendment Bill undergoes its legally required 90-day waiting period before it goes back to the House for its second reading, debate and final ratification.
The Chief Justice tried to resolve the issue of timing in today’s proceedings, and he questioned Shoman whether, if legislators had sought to change the Referendum Act before the Constitution, whether they would still be before the court. Shoman said that they would not have, since the law would have already been changed requiring the referendum. It is an entirely different situation than if the Referendum Amendment Bill had been dealt with first, assented and “gazetted” into law. She furthermore argued that the time for the Prime Minister to call a referendum was before the Belize Constitution 6th Amendment Bill was introduced to the House and read. She told the court that consultations could not have been required after the fact, as they would have no real purpose.
In defense of the Prime Minister, Lois Young, SC, told the court that the claimants should not get the declarations they seek, nor should they be granted the order of mandamus requiring the PM to call a referendum on the proposed constitutional amendments. She went on to say that the entire application was misconceived and that the court has, in effect, told the legislature that it will not complete the process of bringing the Referendum (Amendment) Bill into force – what she deemed to be a handcuffing of the legislature.
She told the Chief Justice that the prism through which the defendants see the case is that the claimants are trying to hold Prime Minister Barrow at ransom, telling him to ignore the decisions taken by the legislature in approving the changes to the Referendum Act, and trying to force him to call a referendum.
Young noted that under the provisions of the Constitution a three-fourths majority is required to get the constitutional amendments passed, but first there is a 90-day waiting period now in effect, before the proposed changes are taken to the next stage in the House.
The provisions now being deleted from the Referendum Act, calling for a referendum in the event that the National Assembly wants to change fundamental rights and freedoms in the Belize Constitution – do not give the claimants any entrenched rights, and there is no constitutional underpinning to give it any validity, she contended to the Chief Justice.
Chief Justice Dr. Abdulai Conteh noted that most countries do require a referendum before changes are made to their constitution – that is the trend, he said.
Dr. Conteh heard full arguments in his courtroom today, and he has to take time to deliberate upon the arguments presented by both Lisa Shoman and Lois Young before making final determination on whether he will grant the 4 citizens their requests. They are as follows:
(1) a declaration that the Prime Minister is acting in violation of, and inconsistent with, section 2(2) (a) and section 3(1) of the Referendum Act by his failure to request that the Governor General issue a Writ of Referendum in respect of a proposed amendment to section 5 of the Belize Constitution (protection of right to personal liberty) by way of section 2 of the Belize Constitution (Sixth Amendment) Bill, 2008;
(2) a declaration that the Prime Minister is acting in violation of, and inconsistent with, section 2(2) (a) and section 3(1) of the Referendum Act by his failure to request that the Governor General issue a Writ of Referendum in respect of a proposed amendment to section 17 of the Belize Constitution (protection of deprivation of property) by way of section 2 of the Belize Constitution (Sixth Amendment) Bill, 2008; and
(3) a mandamus requiring the Honorable Prime Minister to request the Governor General to issue a writ of Referendum, pursuant to section 3(1) of the Referendum Act.