Headline — 01 May 2019 — by Rowland A. Parks
PM Barrow’s big ICJ referendum gamble

“Regardless to what happens next week the substantive challenge to the Special Agreement is very much alive,” Chief Justice, Hon. Kenneth Benjamin

BELIZE CITY, Mon. Apr. 29, 2019– On Wednesday, May 8, the International Court of Justice Referendum that the protocol to the Special Agreement triggers, will take place under the new law, the Belize Territorial Dispute Referendum Act, which Prime Minister Dean Barrow rushed through in a single sitting of the House of Representatives and which was subsequently passed by the Senate and became law when the Governor General signed it.

Next Wednesday’s ICJ referendum, however, will be held against the backdrop of a major constitutional challenge by five parliamentarians of the Opposition, People’s United Party (PUP) and a PUP standard bearer.

The result of the ICJ referendum could become void, if the court was to rule that the Special Agreement, signed in 2008 at the Organization of American States (OAS) headquarters in Washington, DC, by Foreign Minister Wilfred Elrington, is unconstitutional or if the new law, which is also under challenge in the case, is found by the court to be improper. So, in effect, for Prime Minister Dean Barrow to proceed with the ICJ referendum is a calculated gamble which could end up costing the country millions of dollars for nothing.

Case management for the constitutional challenge to the Special Agreement was scheduled to take place before Chief Justice, Hon. Kenneth Benjamin, this morning, but this morning’s hearing was focused on an application brought by government attorney, Lisa Shoman, S.C. for the Chief Justice to lift the interim injunction that he granted to the claimants on April 3.

Eamon Courtenay, S.C. the lead attorney for the claimants, however, told the court that there is a cross appeal and that Shoman is at the wrong forum for such an application, because the matter is now before the Court of Appeal and this poses a jurisdictional issue. Courtenay cited some case law precedents to buttress his argument.

Shoman then asked the court for an adjournment to consult with her clients and when she returned for the afternoon session, she withdrew the application for the Chief Justice to lift the interim injunction. The interim injunction had prevented the government from proceeding with the ICJ referendum on April 10.

Shoman, however, told the media that lifting the injunction was only a formality, because the referendum that will be held on May 8 will not be held under Chapter 10 of the Referendum Act.

The Chief Justice awarded cost to the claimants for this portion of the case and the case management proceeded; both parties will now file the necessary papers and amended claim forms by May 10.

After the hearings today, the media spoke to the lead attorney for the claimant, Courtenay.

Courtenay explained that the government had applied to lift the injunction granted by the Chief Justice on April 3, but “we took an objection to that on the ground that there was an appeal pending before the Court of Appeal. They had appealed the Chief Justice’s decision and we had cross appealed, so with that, the Chief Justice had no further jurisdiction.”

“So, to put it simply, once again the government had come to the wrong court with the wrong application to have the injunction discharged. When they returned to court this afternoon, they withdrew their application, without expressly saying so—we were right and they were wrong,” Courtenay said.

Courtenay said that the claimants are challenging the Special Agreement and the Chief Justice had said that he did think that there was an arguable case. “We want the Court of Appeal to rule on that, whether or not the Special Agreement is constitutional. If the injunction was lifted it would have removed the foundation on which the appeal rested. It is a very constitutional law issue where these representatives have not had a chance to debate the Special Agreement,” he said.

Hon. Cordel Hyde, the PUP’s National Deputy Leader and one of the claimants in the case, told the media that if this was a novel, it would have been a tragicomedy. “The reality is that this is the most important question of our lifetime and the government messed it up every time,” he remarked.

Speaking of the ICJ referendum, Hyde said the government messed it up with the writ in the first referendum; they messed it up in trying to take it to the Court of Appeal, “then they come with a new law and they messed that up too.”

Hyde explained that the government is on a campaign of dishonesty. “You would think that with all this, the government would take a chill pill,” he said.

“Our people are more confused than ever before,” Hyde said. Hyde continued, citing the large number of Belizeans who have been disenfranchised in the re-registration process. “If you listen to the people of Belize, they are confused. If you are a no, you better go and vote no, otherwise the government will ram this thing through,” he said.

Courtenay was asked if he thought that the government had successfully legislated around the court issue. He replied that it was their view that the Bill was unconstitutional, and it violated certain legal principles.

Courtenay said that they don’t know which section of the Representation of the People’s Act the government is going to rely on. He explained that because of the way the government drafted the law, “If something goes wrong on Election Day, nobody can come to court and challenge the result of the referendum, there is no procedure in ordinary law to challenge it.” However the constitutionality of the act can be challenged.”

“There is challenge to the law on which they are holding the referendum,” Courtenay said.  “The situation is that we face an existential issue in this country and we must do it right. Guatemala postponed theirs twice. Look at what is happening in England with Brexit. Switzerland had a referendum and their Supreme Court overturned the result because the people were not sufficiently informed in the lead up to the referendum. I don’t know what dark forces are at work that are causing the government to insist that this referendum must go through in indecent haste,” Courtenay said.

It was suggested to Courtenay that the government has no fetter and could go ahead with next week’s referendum.
“They can do what they want and the court will speak, and they can take a risk,” Courtenay replied. He added that there are millions of taxpayers’ dollars that are being put in jeopardy.

Courtenay was asked what will happen to the referendum results if the court was to find that the Special Agreement is in fact unconstitutional.

“If you look at the new legislation that was passed in the House and the Senate, on the 12th and the 15th, it specifically invokes the Special Agreement and said that the referendum is being held in fulfillment of the Article 7 of the Special Agreement. And so now it has become worse. The challenge that we first brought was in terms of the Special Agreement and a referendum act that did not mention the Special Agreement. They have now passed a piece of legislation that specifically relies on the Special Agreement that we are challenging the constitutionality of. So it seems to me that wise counsel would be to step back and say wait. If in fact these claimants succeed, then the referendum would be infected with the same unconstitutionality that we will prevail on in terms of our challenge to the act. So they can proceed with their referendum and there is likelihood, and a real likelihood, that it may be declared unconstitutional,  null and void. Guatemala has held their referendum and it binds them,” he remarked.

Courtenay explained that the government had committed Belize to a referendum that is binding, and his clients are challenging it.

The Chief Justice said that regardless of what happens next week, the legality and constitutionality of the Special Agreement is very much an issue that is currently in question, Courtenay explained.

“Anybody who has some level of maturity, some level of trying to understand what is right for the country, would pause and listen and wait until the court pronounces on the issue. But we have a government, to quote the Deputy Party Leader, that is acting like a dictatorship,” Courtenay said.

Courtenay said all the paper works are in and they are going to ask the Court of Appeal for an expedited hearing of their appeal. If the Court of Appeal rules in their favor, then the matter goes back to the Chief Justice for trial. So while the matter is before the Court of Appeal, the Supreme Court will have to await a ruling from that court, before proceeding with the claim, he explained.

Courtenay said that the government has embarked on a road that is fraught with failure. “The Chief Justice said it to them on April 3, the Court of Appeal said it to them, and when they threw in the towel [this morning] I can only conclude that they were wrong,” he said.

“We are saying the same thing over and over, not as PUP, but as Belizeans. We are saying that if you are going to have the referendum, do it right. This is not a matter to be taken lightly or play games. It seems to me dark forces are at work, causing them to act the way they are, unless you deh da crazy house, how can you explain what the government is doing?” he said.

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