Features — 13 April 2019
About Referendum legalities and the Rule of Law

The issue of the holding of a Referendum on the 10th day of April, 2019 is one of much debate and one that sparked a debate at a very late stage in the process, all because there was not a timely educational campaign. Sadly, we now know that from before 2008 our government, and its team, had already been gearing towards reaching a Special Agreement, when all negotiations failed under both political parties. Yes, they failed! Otherwise we would not be going to referendum and we would be signing-off a settlement instead.

Unfortunately, it was not until about 2016 that the Belizean people even knew about the contents of this special agreement, which was never presented to the House of Representatives, but was passed through the Senate, and lingered as almost a non-issue, because truly I believe the average Belizean did not realize the importance of it. I confess, I too did not pay key attention because in my mind, based on the little I heard on the news, it was about us going to referendum to vote on a settlement.

It is not until much later that I realized it was not to vote at referendum about a settlement, but rather to vote at referendum about us agreeing who would decide the settlement, that being the International Court of Justice, ICJ!

The Referendum Act

You see, having much dealings with learning the Referendum Act and all its intricacies I knew that there was a provision that said that if a “proposed settlement” is arrived at between Belize and Guatemala, the people would decide at a referendum, whether they agree with that settlement or not. So I honestly was not paying key attention on the details, because I believed the law was clear and simple. However, as the debate fired up and I had to read the details of the Special Agreement I became concerned about the legality of what was being proposed in the special agreement, as it said at Article 2 the following:

“The Parties request the Court to determine in accordance with applicable rules of international law as specified in Article 38(1) of the Statute of the Court any and all legal claims of Guatemala against Belize to land and insular territories and to any maritime areas pertaining to these territories, to declare the rights therein of both Parties, and to determine the boundaries between their respective territories and areas.”  (emphasis mine)

Now, while I was reading this special agreement aka compromis, it was literally conflicting for me, in that I know the Referendum Act in simple and unambiguous language states that there are four circumstances under which a referendum MUST be held. Per Section 2(1) of the Referendum Act Laws of Belize Revised Edition 2011 it states:

“(1) Subject to the provisions of this Act, a referendum shall be held in any of the following circumstances,

a) Where the National Assembly passes a resolution declaring that a certain issue or matter is of sufficient national importance that it should be submitted to the electors for their view through a referendum;

b) Where a petition is presented to the Governor-General signed by at least ten percent of the registered electors in Belize whose names appear in the approved voter’s list existing at the time of presentation of the petition (or, if the referendum is to be in any specific district or area of Belize, twenty-five percent of the registered electors in that district or area) saying that in their opinion a certain issue or matter is of sufficient public importance that it should be submitted to the electors for their views through a referendum;

c) Where any law provides for the holding of a referendum on any specific issue or matter; or

d) On any proposed settlement with the Republic of Guatemala for resolving the Belize/Guatemala border dispute. [emphasis mine]”

Now in this instance it seems that when the Prime Minister sought a Writ of Referendum from the Governor General, he did so using Section 2(1)(d) Referendum Act,  which speaks about us going to referendum to approve or disapprove a settlement. However, voting to go to the ICJ so that that court determines “any and all legal claims of Guatemala against Belize… to declare the rights therein of both Parties, and to determine the boundaries between their respective territories and areas.” IS NOT a settlement, to me, but rather a mode of settlement and even while we may cast our ballots at the polls, we would still not know what the settlement is!

Unless this Section is amended to say there must be a referendum to have the people decide on a method or mechanism to reach a settlement, I would confidently say the government had it and has it wrong!

The New Referendum Law

Now, the strategic move of her Majesty’s Loyal Opposition to question both the legality of the treaty and the validity of the Writ of Referendum has our government on its feet to the point that they might not be fully acting within the law. The Chief Justice of the Supreme Court has not fully decided the substantive legal issue, but on the face of it, he was willing to and did give an interim injunction to address the issue of the validity of the Writ!

Sadly, the Prime Minister, as a senior officer of the court, has forgotten the ethics of the profession and has gone publicly to attack the decision of the Chief Justice, saying on 8th April, 2019, when the Court of Appeal ruled they could not hear an expedited appeal, that he is “…entirely convinced; I shall go to my grave secure in the knowledge that the Chief Justice got it horribly wrong.”

Now, seeking to defeat all the legal challenges and quash the CJ’s interim injunction the PM is now convening a House sitting this Friday to pass a new law called the Belize (Territorial Dispute) Referendum Bill 2019. The thrust of that bill states as follows:

Bill for an Act to provide for a referendum to determine whether 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 the International Court of Justice determine finally the boundaries of the respective territories and areas of the parties; and to provide for matters connected therewith or incidental thereto.

To me this new law simply then puts into effect Section 2(1)(c) Referendum Act,  which states: “(1) Subject to the provisions of this Act, a referendum shall be held in any of the following circumstances, …. (c) Where any law provides for the holding of a referendum on any specific issue or matter…” What this law is doing is mandating that a referendum be held to determine whether or not we should take this matter to the ICJ.

So now it is clear that previously the PM wanted to act outside the rule of the law, but now he is making his own law to once against legitimize his wrongful conduct. It is also clear that we are not using the provision that we must vote on “any proposed settlement”, but rather we must vote to go or not go to the ICJ. This, however, does not end there in my humble opinion!

Any proposed settlement with the Republic of Guatemala

It is my humble legal view that even with this new law that the government is passing that there is a major error. Since by this compromis and new Bill, the government seeks to circumvent the right of the Belizean people to go to referendum to agree on whatever settlement the ICJ is proposing. I believe if there is a law on the books we must act within the confines of that law. My concern here now stems from the fact that the compromis states that the decision of the ICJ is binding and final, yet our Referendum Act states at Section 2(1)(d) Referendum Act that

(1)    Subject to the provisions of this Act, a referendum shall be held in any of the following circumstances,…

d)    On any proposed settlement with the Republic of Guatemala for resolving the Belize/Guatemala border dispute. [emphasis mine]

However, the interesting matter is that Article 5 of the compromis states:

“The Parties shall accept the decision of the Court as final and binding, and undertake to comply with and implement it in full and in good faith….”

So this, in my view, conflicts with the Referendum Act as it vitiates Section 2(1)(d) Referendum Act cited above as it cancels out the right of a citizen to determine at a referendum whether or not they agree with the proposed settlement of the ICJ! I could see lawsuits emanating from this, as it violates a citizen’s legitimate expectation that they will have a final say once the details of the proposed settlement are determined. As it stands, we do not even know the details of the Claim by Guatemala. This is especially more possible by the fact that the government has not consulted about this new law that challenges my legitimate expectation to vote on the “proposed settlement”.

The bottom line is that I know there are those saying yes, go to the ICJ, and there are those saying NO! I say NO because I have always questioned the process and thus before I can even argue about the legal opinions, in futility, I want to ensure that the legal and right process is followed, as no man is above the law and our laws are clear as to what can and cannot be done.  Sadly the PM is either ill-advised, or his legal team is too blindsided by the yes issues that they are not listening to the legal concerns of others; or maybe the PM is determined, at all cost, to have this his own way, like a spoilt brat, and thus is willing to end his political career as a dictator, which from his criticism of the Chief Justice would signal a scary time for me, because the courts are all we have to turn to, to settle these genuine concerns and differences!

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Deshawn Swasey

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