Yesterday morning at 10:30, Justice John Muria, acting as a Justice of the Court of Appeal after regular Appeals judge Manuel Sosa recused himself for unknown reasons from the case, ruled that there was nothing to justify staying the ruling by Chief Justice Dr. Abdulai Conteh, presented on March 11 and upheld on April 6, 2008, that Fort Street Tourism Village’s officials must take down the “walls and obstructions” separating the Village from Brown Sugar Marketplace, on the one side, and the properties belonging to Maritime Estates and Eurocaribe Shipping, including Harbour View Restaurant, on the other.
Yet as of this evening at 4:30, the Village’s workmen had removed sections of the wooden boardwalk on Fort Street’s side of the wall next to Harbour View, but not the wall itself. The wall at Brown Sugar had not been taken down yet, either, and the boardwalk in that area, built of concrete and steel, had been damaged as well.
Amandala was informed at about 8:30 this morning that an entire section of the boardwalk next to Harbour View was gone, a fact we confirmed on a visit to the area around 8:45 a.m. Chief of Security for Fort Street, Michael Mulligan, declined comment, directing us to Nisbet, who, he said, was in Nicaragua on business and would return tomorrow.
Harbour View’s Martha Williams appeared not to be surprised by the Village’s actions, but in any case likewise declined direct comment, directing us to their attorney, Fred Lumor. As it turns out, Ports Commissioner Major Lloyd Jones, a major player in the case, is also in Nicaragua at this time.
Speaking at 3:45 p.m. today, Christian Riverol, Brown Sugar’s operations manager, told us that with this latest action by FSTV, they have declared themselves “above the law.” But not for long, he added, as Lumor today filed with the Supreme Court an order for contempt of court to be served on Nisbet and Mulligan.
In the court case which began on Tuesday of this week, lawyers for both sides – Rodwell Williams and Godfrey Smith representing Fort Street, and Andrea McSweaney-McKoy representing the Attorney General and Government of Belize, all Crown counsels, along with Fred Lumor, senior counsel, who was representing Brown Sugar and Harbour View/Eurocaribe/Maritime Estates collectively, argued the combined civil appeals in a process that at times became testy.
It should be noted that Williams comes out of the Barrow and Williams firm on Albert Street, the home of senior counsel and then Leader of the Opposition, Hon. Dean Barrow – who argued on Fort Street’s behalf in this case almost two years ago, in July of 2006 – while Smith, who did not speak in this week’s proceedings, comes out of the Marine Parade law chambers and is a former Minister of Tourism.
Even before the actual appeal began, Lumor rose to object to Justice Muria’s hearing the appeal on three grounds: 1) that Maritime Services and Eurocaribe Shipping were not named in the original notice of appeal served for Civil Appeal No. 4 (filed by Fort Street); 2) that the applicants, FSTV and GOB served the notices on the counsel for the respondents rather than the respondents themselves, and 3) that the order made by the Chief Justice in the March 11 ruling and upheld on April 6 was assented to by all parties beforehand, and could not be challenged in court.
Justice Muria dismissed the first two objections in his ruling on Wednesday morning, and traversed the last to the main case, begun Tuesday afternoon at 2:30 p.m., as he considered it to be the “central aspect of the case.”
In Tuesday afternoon arguments, Williams began by reminding the court that the current appeal followed the one rejected by the Chief Justice on April 6, but that the fact remained that if the walls were taken down per the C.J.’s order, it would cause “irreparable damage” to and cause the closure of the Village as a port facility.
Further, according to Williams, C.J. Conteh erred in his judgment that a private party should be subject to remedy from the public law if the party’s constitutional rights were offended, as the C.J. said Brown Sugar/Harbour View’s were.
Dr. Conteh was “wrong” that the walls affected their right to work, argued Williams, and the case was thus significant to the public interest because it was the first time such an event had occurred in Belizean jurisprudence where a private party was punished for offending another private party under public law.
Nevertheless, Williams concluded, the judgment had the potential to “ruin” FSTV economically, and that such a loss had to have been “contemplated” by the Chief Justice when he ordered that the Village, Brown Sugar, Harbour View and the Port Authority consult with each other as to how best to secure the facility. He raised the spectre of the port facility’s decertification at the hands of “third parties” such as the U.S. Department of Homeland Security, and that taking the walls down plays into their hands.
McKoy, in a brief statement, agreed with Williams’ pronouncements and added that separating the establishments into separate port facilities, an option open to the Authority and the Government, was too “expensive and time-consuming” to fit the situation. McKoy cited Ports Commissioner Jones’ testimony that it was his job to approve the plans agreed to by FSTV and Brown Sugar/Harbour View, and in his view, they had failed to reach significant agreement on what those plans would be.
In the meantime, McKoy concluded, decertification would threaten the cruise ship industry’s viability in particular and Belize’s tourism industry in general, and argued that a stay to get the plans together would be “crucial” to avoiding this.
Lumor, the last speaker on Tuesday, delivered a passionate opposition to the statements of Williams and McKoy, saying that there was “absolutely no legal basis for the statement that the removal of walks …was in the hands of third parties other than the Belize Port Authority”, and blamed the absent Major Jones for “delegating his statutory duties to FSTV.”
Lumor challenged Jones to step up and claim his place at the head of the negotiating table instead of leaving it to Fort Street to handle. He reiterated that after the ruling on March 11, at a meeting between the parties to the case, someone suggested a 30-day period to allow for the taking down of the walls, and when this was rejected, someone else suggested 14, which was approved and made its way into the written orders of the Chief Justice, a copy of which Amandala has obtained.
Lumor dismissed the question of decertification as “alarmist rumormongering,” and “blackmail” on the part of FSTV, and quoted sections of the International Ship and Port Facility Security Code to prove that Major Jones was falling down on the job. The parts he quoted spoke about routine assessments of facilities and updated plans that had to be approved by Jones.
Lumor then questioned the Government’s involvement, saying that the Said Musa administration had in fact been in constant touch with FSTV over their repeated violations of the orders against the wall and other illegal constructions from as far back as 2002.
McKoy rose one final time to say that the Commissioner could not force anyone to agree on anything, and that the security people of all the organizations were “perfectly capable” of coming up with a concrete plan. The meetings held a week later on March 18, said McKoy, were in response to the third of C.J. Conteh’s orders released on March 11, which authorized the claimants, Brown Sugar and Harbour View, and the Government, the Authority and FSTV, to meet over keeping the plans up to compliance. With that, Justice Muria adjourned to 10:00 a.m. the following day, Wednesday.
In Wednesday’s ruling, Justice Muria reminded the parties that stays of execution are granted only in the “most special and extraordinary circumstances,” which he did not find here. He went on to say that all save one of the orders of Chief Justice Conteh in the March 11 decision were declaring the rights of the claimants affected by the walls, and agreed with Lumor that the last order, demanding the wall’s destruction in 14 days, was an order consented to by both parties, given that work had already been started according to affidavits filed before the court, but that the order “had clearly not been complied with,” a situation made worse by FSTV’s attempts to “frustrate” the execution of the order, both legally and otherwise. He therefore denied the applicants FSTV and GOB a stay to keep the walls up.
Speaking after the judgment, Christian Riverol declared to waiting media that he personally would “make sure the walls come down…no more leniency, no more (being) friendly, they played hardball with us, we’ll play that with them.”
FSTV’s operations director, James Nisbet, declined official comment, but said that FSTV “would do everything in its power to make sure the cruise industry is alive and safe.”