Features — 01 September 2018
To respect the will of the people, the referendum must be binding

If the Government has its way, Belize will hold a referendum on 10th April 2019. Electors will express their view on whether or not the International Court of Justice should finally resolve any and all claims that Guatemala has to Belizean territory. I emphasize that electors will only express their views on whether to go to the ICJ, nothing more. The referendum results are not binding on the Government of Belize.

In an election, held under Belize’s electoral laws, electors elect their representatives, mayors, and councilors. The laws specifically set out the binding procedure by which persons so elected take office and perform their functions. Ultimately, there are election petitions to enforce the finality of the result. However, this is not the case with the Referendum Act.

For the Referendum to be held next year, the National Assembly must pass a resolution as required by section 2(1)(a) of the Referendum Act. That section states that a referendum will be held “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.” It is clear that such a referendum will be an expression of the popular will of the people, but is not binding. It has no force of law.

It will be recalled that in 2008 a referendum was held, along with the general election, on whether there should be an elected Senate in Belize. There was no minimum turnout required, and 46.6% of the electorate voted in the referendum. The result was 61.5% in favour of an elected Senate and 36.6% against it. However, the newly elected government simply ignored the result. Why? Because it did not agree with the result and the result was not legally binding on the Government.

In 1999, the Referendum Act provided that before a law that derogated or weakened any of the fundamental rights set out in Part II of the Constitution could become law, it had to be first approved in a referendum. In 2008, the Government proposed amendments to the fundamental rights provisions of the Constitution which would derogate from existing rights, and also an amendment to the Referendum Act to remove the requirement for a referendum in such cases. These decisions were challenged in court, and the case reached the Privy Council. Of relevance to the issue of the Belize/Guatemala Referendum is that the Privy Council judgment stated that referenda held under the Referendum Act are “only consultative or advisory”, and that “the result of the referendum … imposes no obligation on the Legislature”.

The fact is that, as confirmed by the Privy Council, referenda held under the Referendum Act are non-binding, and experience shows that the results can be ignored by the government of the day – as was done with the result of the elected Senate referendum.

If Belizeans vote to go to the ICJ, a result that is by no means certain, then the National Assembly will be required to consider the Special Agreement and such other pieces of legislation as are required (such as amending the Maritime Areas Act). In such a situation even with a “yes” vote, the members of the National Assembly will not be bound to approve the Special Agreement and other pieces of legislation because, as stated by the Privy Council, “the result of the Referendum … imposes no obligation on the Legislature”. Therefore, the will of the people as expressed in a referendum may be disregarded, as has been done in the past.

What about the alternative possibility? What if the majority of electors vote “no” in the referendum, that result would not prevent any government – sometime in the future when circumstances have changed or perhaps under serious duress from the international community, from deciding to nevertheless proceed with a submission to the ICJ. This may appear to be politically suicidal, but politicians often take decisions based on their calculation of what is politically expedient in the now rather than what is best in the long run.

Article 7 of the Special Agreement implies that a submission of the Guatemalan Claim to the ICJ will only occur if there is a “yes” vote in both Belize and Guatemala. But this is only implied; it is not expressly stated. In any event, the Special Agreement is not law, it never having been considered by the National Assembly, and it can be amended quite easily by ministerial signature without parliamentary approval, as it was on 25th May 2015 when the Protocol amending the Special Agreement was signed which allowed for the Guatemalan demand for Belize and Guatemala to not have simultaneous referenda.

The fact is that there is nothing in Belizean law that guarantees to Belizeans the ultimate right to approve a final resolution of the Guatemalan claim, either by a judicial determination by the ICJ or by a diplomatically negotiated treaty. In this regard, I consider the Referendum Act to be seriously deficient.

I emphasize two important points. First, as the Referendum Act currently stands, the result of the Belize Guatemala Referendum is not legally binding on the Government. Second, and as a consequence, the result of the referendum can be disregarded by any Government, just as it did with the elected Senate referendum, without any legal consequence.

We must change the legal landscape before the ICJ Referendum is held. As a democratic state, the Referendum Act should be amended to make the result of the Referendum legally binding on the Executive and the Legislature. Secondly, section 1(d) of the Referendum Act presently requires a referendum “on any proposed settlement with the Republic of Guatemala for resolving the Belize/Guatemala border dispute”. This section should be amended to make clear that it is not the “views” of the people that are to be sought “on any proposed settlement’, but their legally binding approval or disapproval of any proposed settlement. In my view, these amendments are required to ensure that the will of the people prevails, and the result of the ICJ referendum is legally binding.

Finally, I repeat my call that all Belizeans eighteen years and older, whether resident at home or abroad, be allowed to vote in the upcoming Referendum. Let us all decide our common future.

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Deshawn Swasey

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