The Caribbean Court of Justice (CCJ), via video conferencing this afternoon, announced that it would stay hearings on the constitutional challenge by the Ashcroft Alliance, specifically Dean Boyce, former chairman of the executive committee of Belize Telemedia Limited (BTL), and British Caribbean Bank (BCB), who had separately filed suits against the Attorney General and the Minister of Public Utilities, challenging first the 2009 nationalization of BTL, and subsequently, the 2011 nationalization, which Government had effected to correct perceived flaws in the first nationalization.
Today, a 5-member panel of CCJ judges, via a majority ruling, concurred that they would not permit the “leapfrogging” of the lower courts in Belize.
Sir Charles Michael Dennis Byron, CCJ president; Madam Justice Desiree Bernard; and Justices David Hayton, Winston Anderson, and Adrian Saunders presided over the preliminary sessions to determine whether the proceedings in what is now the country’s final appellate court should be stayed, pending the outcome of the constitutional challenge filed in 2011 in the Supreme Court below.
“It would be more appropriate to hear the thoughts of the courts below,” said the CCJ, noting that the opinions from below can be vital to shaping the views of the final court, and noting the fact that it would be difficult to proceed with hearing the matter at the CCJ level without prejudicing the cases below.
It is entirely understandable why the appellants should passionately put forward this position, and they have raised powerful arguments in support of it, noted the CCJ.
However, it added, “The indisputable fact is that the 2011 legislation and in particular its retrospective element [making it effective as of 2009], could have a devastating impact on the appeals. While we recognize the dilemma in which the appellants have thereby been placed, and notwithstanding the submissions that have been made by them, the majority of us still consider that the better course is indeed to stay the appeals pending the outcome of the challenge in the normal manner to the 2011 legislation.”
Attorney Godfrey Smith, SC, who represents Dean Boyce, told Amandala this evening that the Supreme Court challenge to what is now the 8th Amendment to the Belize Constitution (which was designed to enshrine the nationalization), as well as the 2011 amendments to the Telecoms Act, is set for March 12th and the hearing will probably take a couple of days. The case was amended last October to include both, said Senior Counsel Smith.
The CCJ ruling read today called the 2011 legislation “novel, wide-ranging and of the utmost public and constitutional importance.”
The determination of the case, said the CCJ, “…can have a huge impact far beyond the parties to these proceedings, and indeed, beyond Belize as well, bearing in mind this court is also the final court of appeal for other CARICOM states.”
The CCJ dismissed the request by Fortis Energy International Belize Inc., from which the Government also took over majority interest in Belize Electricity Limited in 2011, to be added as an interested party to the CCJ appeals. The court commented that “…that application rested entirely on the premise that this court would hear the appeals and would encompass the challenge to the 2011 legislation.”
Fortis was represented by British barrister, Edward Fitzgerald.
Meanwhile, the Government of Belize was represented by Senior Counsels Lois Young and Denys Barrow, and Crown Counsel Andrew Bennett.
Eamon Courtenay, SC, and Ashanti Arthurs-Martin represented British Caribbean Bank.
Sitting in on this afternoon’s session were the Chief Justice, Registrar and Deputy Registrar of Barbados.
Senior Counsel Young said that the appellants, the Ashcroft group, “didn’t get anything they asked for.”
As for the sale of shares, Smith noted that there is no longer a stay to bar the Government from selling its remaining shares in BTL. He said that what the court did declare was that the proceeds from the sale of shares should be held in an escrow account either at the Central Bank of Belize, or the commercial banks.
As for consequential relief for which the Ashcroft group had argued, the CCJ has made no decision, and that matter will have to await later resolution.
Young highlighted “the willingness and intention of Government to pay compensation,” which, she said, was “quite pleasing to a court.” All the Prime Minister has asked the CCJ to do was to allow him to pay compensation out of the proceeds of the sale of the shares, said Young, and without any kind of hesitation that was granted, she added.
As a backdrop to the case, although the Government of Belize won the constitutional challenge to the 2009 nationalization of BTL in the Supreme Court, it lost in the Court of Appeal. The government had expressed a desire to have the matter of the 2009 nationalization fully ventilated by the CCJ; and the Ashcroft group took its challenge to the 2011 nationalization directly to the CCJ.
However, with the lower court challenge to the subsequent 2011 nationalization filed later, the CCJ case will have to wait.
Justice Anderson dissented to the extent that he expressed the view that notwithstanding the cases filed in the lower court, the matter of consequential relief should be addressed by the CCJ, in light of the Court of Appeal ruling indicating that certain constitutional rights were infringed by the Government.
However, the majority view of the CCJ judges was that the Court of Appeal was the one that decided not to award consequential relief. “They may have been perfectly right to do so—or they may have not been right.”
They added that, “…the bare fact is that at this point in time, the appellants have no right to any consequential relief or any further reward.”
Consequential relief and damages were not awarded and the 2011 legislation enacted by the Barrow administration did not attempt to “claw back” such relief, the CCJ judges noted.
The court said it would make no orders as to costs for any of the parties.