FLASHPOINT Godfrey Smith’s Take on the Ninth Amendment

Posted: August 26, 2011 By: I. Myrtle Palacio

The Ninth AUG 22

Written by: Godfrey Smith Monday, August 22, 2011 If nothing else, the introduction of the Belize Constitution (Ninth Amendment) Bill 2011 by the Dean Barrow government has, for the first time since independence, widely prompted people to grapple with the actual text of their constitution. Three of the bill's 7 pages seek to ensure that the government keeps at least 51% majority ownership and control of the recently nationalized public utility companies in perpetuity. The other three pages is an attempt to court-proof or judgment-proof the nationalization of the public utilities as well as all future constitutional amendments. The emerging public consensus is that people are happy to entrench majority state ownership of the nationalized utility companies in their constitution; but they are unhappy with blocking the court's power to audit the constitutionality of bills that amend the constitution. They say the government could have entrenched majority state ownership of the utilities and stopped there without going on to include that mother of all ouster clauses. There is an inherent contradiction in the emerging public consensus. People can't say that the courts should have the power to scrutinize every kind of bill enacted by parliament to ensure their constitutionality and, in the same breath, say that it's okay to entrench majority state ownership of the utilities in the constitution. The courts have not finally decided whether the utility companies were lawfully nationalized. According to the emerging consensus, that right must not be taken away. How then does one move on to say that it's okay to entrench (for all time) state ownership of other people's property which a court may well decide in the coming months does not in fact belong to the state.

In other words, there is cognitive tension in encouraging a government to legislate that it can keep a majority ownership of property whose ownership has not yet been finally decided, and, at the same time, maintaining that the courts should not be shut out from determining such issues. The inconsistency can only be rationalized by interpreting the consensus to mean that people desire that public utilities belong to the state in perpetuity provided it's lawfully nationalized and that the courts have their say. Otherwise, the consensus view, under the weight of its own contradiction, collapses upon itself. No legal arguments need be deployed to arrive at a reasoned and coherent position on whether to oppose or support the 9th amendment. The government says that once it has a three-quarters majority in the House of Representatives it can amend the constitution in any way and no court can question that. The very constitution, they say, makes this so. The Bar Association says that that view takes too literal an approach to reading the constitution. They say it is the courts that decisively interpret what a constitution is saying and that Belize Courts have already decided that, notwithstanding a supermajority, the House can't change anything it likes in a constitution. Mr. Barrow has said that former Chief Justice Conteh got it "quite wrong" when he ruled that there were some things in the constitution that the House couldn't amend. Mr. Barrow says that the 9th Amendment merely "clarifies" what the constitution already says. There isn't much point in the citizenry debating whether a super-majority in the House can amend the constitution in any way it likes without the court being able to audit it, because even constitutional lawyers are split on the issue. Only the CCJ can - and will - ultimately decide what the true interpretation of the constitution is. Already, though, one judge of the CCJ has expressed a preliminary view that even with a parliamentary supermajority the House couldn't pass a constitutional amendment reintroducing slavery, for example. Such a

constitutional amendment, he said, would itself be unconstitutional. What the citizenry should attempt to collectively decide is whether a supermajority of politicians in the House should have that kind of power regardless of what the constitution currently says or how it is interpreted. The opening words of the Belize Constitution states: "Whereas the People of Belize..." It then goes on to set out several paragraphs of principles, beliefs and needs which the people believe would make for a good society and which the constitution should give effect to. Then the actual provisions of the constitution are set out to give effect to those principles. If the constitution exists to give fundamental legal expression and protection to a set of principles, beliefs and needs upon which people want their society to be ordered and which reflect their core values, it follows that they should have a say on any fundamental changes to it. A government that did not include a substantive constitutional amendment as part of its election manifesto commitments cannot legitimately claim to have a mandate from the people to make such an amendment unless it holds a referendum. I would think that for Belizeans to agree that their politicians who have a three-quarters majority in the House should have the power to amend anything in the constitution without court audit, they must feel confident that those politicians would not abuse that power or that there are other checks and balances in the society to prevent such abuse. By the very act of introducing the 9th amendment Mr. Barrow has demonstrated why his supermajority cannot be trusted to not abuse their power. Minister John Saldivar, one of the parliamentary supermajority, freely admitted the true purpose for the 9th. During nationwide public consultations on the bill, he said that the (controversial) sections of the 9th were intended to put the utilities "beyond the reach of Michael Ashcroft." The 9th amendment, as it turns out, is nothing more than an ad hominem amendment designed to derail an ongoing court case that is going badly for the government. A government should never manipulate the provisions

of a constitution to circumvent the courts because it wants to target and defeat an individual, even if he is a white foreigner. Any government capable of doing that is capable of similarly using the constitution against local opponents after it's finished with its foreign ones. A government that cannot be trusted to honor Court of Appeal declarations that its actions are unconstitutional can hardly be trusted with carte blanche power to amend the constitution, especially when one of its first amendments is to nullify a court decision and then shut out the courts. The government's pattern of behavior of publicly attacking and vilifying in the media reputable citizens of integrity who disagree with its actions dashes any hope that it is a government that can be trusted to wield unchecked powers responsibly and impartially. Do people really need any further evidence that their politicians are not yet ready to be vested with such expansive powers? People should avoid the technical arguments of the debate and address the core issue: Has the majority in the House of Representatives shown sufficient political maturity and tolerance to be trusted with that kind of power?

Churches Drink from PM’s Poisoned Chalice AUG 24

Written by: Godfrey Smith Wednesday, August 24, 2011 The devil, as the Churches should know, lurks treacherously in the details. Canon LeRoy Flowers' statement on the Open Your Eyes television breakfast show that Prime Minister Barrow had met the Churches "more than half way" in addressing their concerns about his proposed 9th Amendment to the Belize Constitution simply cannot be supported by the facts. On July 22nd 2011 Mr. Barrow's government introduced the 9th Amendment in the House of Representatives triggering an avalanche of opposition to the idea that a parliamentary supermajority could amend anything in the constitution without court audit. Hard on the heels of the Bar Association and the Chamber of Commerce's press releases expressing opposition to the 9th Amendment came the Belize Council of Churches' press release on August 8th 2011 under the hand of its president, Canon Flowers. The Churches were "most concerned" about the "conferral of unbridled legislative power to change the constitution". First, they said that the constitution "properly imposes substantive limitations on the power of the National Assembly to make laws" and that any amendment inconsistent with the fundamental principles of the constitution was "beyond the law making authority of the National Assembly". Second, they felt it "critical that [the courts] be able to examine the content of amendments to our constitution and not be limited to merely checking to see that the procedural requirements for changing the constitution ... have been met." Thirdly, while they supported that state ownership and control of public utilities be entrenched in the constitution, they didn't agree with barring the court's power to inquire into the "validity of the acquisitions nor any

derogation of the rights of the former owners". They ended by calling on the government to "secure the public utilities for the Belizean people in a manner which respects the rights of the former owners..." The Churches should know that even after Mr. Barrow's trimmings, their three points of concern remain - unadulterated - in the proposed revised bill. The bill will still contain the phrase "and there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution" thereby leaving the Churches' first and second concerns utterly unaddressed and undiminished. Second, leaving the phrase "that the acquisition of [BTL] was duly carried out for a public purpose..." in the revised bill again fails to address the concern raised by the Churches in their third point. If they think carefully enough about it, the Churches might see that the mere introduction of the 9th amendment flies in the face of their injunction to government that it secures the utilities for the people "in a manner which respects the rights of the former owners". The former owners have cases pending in court the outcome of which the government is trying to interfere with by legislative enactment. The Churches have fallen short in their responsibility to the public. Of their own volition, they (rightly) waded into the debate on a critical national issue. They publicly expressed three reasoned points of fundamental concern they had with the 9th Amendment. After a meeting with Mr. Barrow, the Churches announced they were now in support of the bill with certain agreed changes. There are changes indeed; but they do not at all mitigate the core concerns of the Churches. The Churches have an obligation to explain themselves. Is it that they no longer have the concerns they expressed in their August 8th 2011 press release? If yes, then they need to share their new enlightenment with the public. It takes but a brief examination to see that Mr. Barrow's concessions do not at all allay their core concerns. So why did they agree to a trimming of the foliage while the poisonous roots remain? A Biblical analogy might perhaps make the point. Suppose a clever

Caribbean theologian proposes to Pope Benedict at the Vatican or Archbishop Williams at Lambeth Palace that the following amendment be made to the 9th Commandment just to clarify what must be its obvious interpretation: Thou shalt not covet thy neighbor's wife, save and except if she is only a common law wife which in any event the Church does not recognize or if thy neighbor is a woman married to another woman under Same Sex Marriage Acts or if thy neighbor is an Atheist and thus can't properly be considered thy neighbor or any such similar circumstance whatsoever or howsoever arising which makes it plain that thy neighbor's wife should not actually be considered thy neighbor's wife. A wide swath of Caribbean people would support the amendment; an equally substantial portion wouldn't. In an attempt to placate those opposed, the theologian deletes from his proposed amendment the text that appears in red: Thou shalt not covet thy neighbor's wife, save and except if she is only a common law wife which in any event the Church does not recognize or if thy neighbor is a woman married to another woman under Same Sex Marriage Acts or if thy neighbor is an Atheist and thus can't properly be considered thy neighbor or any such similar circumstance whatsoever howsoever arising which makes it plain that thy neighbor's wife should not be considered thy neighbor's wife. I suspect this would still be unacceptable to both the pope and the archbishop, regardless of how compelling and obvious the argument might be, because one does not lightly tinker with sacred texts and prescriptions. I cannot join in the heaping of encomiums upon the Church for their

supposed achievement in getting the PM to trim the text of the 9th amendment because my frank belief is that they were duped and outmaneuvered by the PM using a simple lawyer's trick. I fear the Canon dost protest too much when he plaintively repeats that that they are not lawyers and that we have to trust the PM. Does not the Good Book counsel that trust should be placed in God, not man? The Churches should never have entered the negotiation with the PM unarmed. They should have taken their legal advisor. Unless of course they felt that in God they had the supreme advisor; in which case, He failed them miserably.