Ninth Amendment to the Constitution: Tracking the Trails

NINTH AMENDMENT TO THE CONSTITUTION OF BELIZE:

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The Ninth Amendment Press Release—Bar Association of Belize Press Release—Belize Chamber of Commerce Open Letter from the Prime Minister of Belize

August 2011

(www.belize.org)

BCCI Calls on the Government to Withdraw the 9th Amendment Bill Wednesday, August 3, 2011

If enacted, the proposed Ninth Amendment to Belize’s Constitution creates a very dangerous situation, which is not contemplated by our Constitution. It allows the Legislature to have absolute power to amend the Constitution as long as it has the requisite two-thirds to threefourths majority and follows the other procedural requirements under Section 69 to enable the amendment. In effect, we move from a Constitutional Supremacy where the laws passed by the Legislature must conform to the Constitution, to Parliamentary Supremacy where the Parliament is supreme and can pass any law without reference to our Constitution. The potential for abuse is real. If the Legislature has absolute powers it can take away any fundamental right or freedom from Belizeans by further amending the Constitution, and we will have no recourse to challenge the substance of the amendments.

In other words, with the passage of the Ninth Amendment we risk losing the basic rights and freedoms we as Belizeans consider the very essence of our democracy. We would be placing ultimate control of our democracy in the hands of our elected representatives, without any check on their powers. As with the recently withheld proposed Eighth Amendment (Preventative Detention), we note that this current administration had proposed drastic changes to our personal liberties. With the Ninth Amendment, the Eighth Amendment can be reintroduced, and we would be unable to challenge its substance in the courts.

In our democracy all persons are equal before the law, and all persons are afforded equal rights to challenge any law passed by the Legislature. While the Chamber recognizes the right of the Government to nationalize property, every person whose property has been acquired should have a right to access the Court to challenge that acquisition. If the Constitution is to be amended to deny that right to certain persons, it creates inequality in our law, undermines our democracy and sets new precedence to which we can all become victims.

Further, the Chamber objects to the proposal that investment of Social Security funds, the people’s money, should now be considered Government shares in public utility companies.

Government control and interference have been shown to be detrimental to the Fund, which is why the Chamber and other social partners fought in 2005 to take the Social Security fund out of political control. The Ninth Amendment seeks to reverse the people's will as expressed at that time and to deem the Social Security Board’s (SSB) shares in our public utilities as a part of the Government’s shareholding, with the requirement that if the SSB is to sell its shares, it must first offer the shares to Government. Aside from infringing on the SSB’s freedom to deal with its property, this gives rise to possible conflict of interest and abuse.

If the entrenchment of ownership of public utilities is all the Ninth Amendment sought to achieve, the Chamber would not be so concerned. However, when the Government goes beyond entrenchment and seeks to interfere with our fundamental rights as Belizeans, rights which if lost may never be regained, this cannot be taken lightly.

The Chamber calls on the Government to withdraw the Ninth Amendment and renews its call for the Government to desist from taking any actions that offend the principle of separation of powers and our democratic institutions enshrined and entrenched in our Constitution.

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Government PRESS OFFICE BELIZE ●Phone: 501-822-0094, 0092, 0759

●Fax: 501-822-2671

● website: www.belize.gov.bz

July 29, 2011 Letter from the Prime Minster of Belize to the People of Belize Clarification to The Belize Constitution (Ninth Amendment) Act 2011 Dear All, The competence, or lack thereof, of courts to review Constitutional amendments in countries with written constitutions that are supreme, derives from the text, language and provisions of the said constitutions. Where the Constitution does not expressly grant such a power to the courts, judicial review of the merits of Constitutional amendments is not possible. Of course, the courts can always examine, and pronounce on, Constitutional amendments on the ground of failure to comply with the procedure for amendment to the Constitution.

In the Irish Supreme Court case of Riordan v An Taoiseach, the constitutionality of the Nineteenth Amendment to the Irish Constitution was challenged. The applicant Dennis Riordan asked for a declaration that “the 19th Amendment….is repugnant to the Constitution and is therefore unconstitutional, null void, and inoperative”. The Court refused on the ground that a Constitutional amendment…”is different in kind from ordinary legislation….A proposed amendment to the Constitution will usually be designed to change something in the Constitution and will therefore, until enacted, be inconsistent with the existing text of the Constitution, but, once approved….under Article 46 and promulgated by the President into law, it will form part of the Constitution and cannot be attacked as unconstitutional.”

The position in the US, Canada, the Caribbean and Belize, is the same as in Ireland: except for procedural non-compliance, no court can enquire into the merits of, or strike down, a Constitutional amendment. The Constitution of Belize, in section 69, sets out exhaustively the manner in which the Constitution can be altered. Nowhere in the Constitution is any power given to the courts to add a further requirement, such as a referendum. Therefore when ex-Chief Justice Conteh did so in the Barry Bowen land case, he was quite wrong. And the Privy Council refused to follow him in the Vellos case.

When Conteh gave the Bowen decision, he was following the ruling of the Indian Supreme Court in the case of Kesavananda Bharati v State of Kerala. In that judgment it was held that the amending power in the Constitution, even if properly exercised procedurally, cannot be used to modify the “basic structure of the Constitution”.

But Kesavananda, which was extremely controversial in India, has been rejected everywhere else except by Conteh in Belize. That is because, in the absence of express substantive limits on the amending power in a Constitution, Kesavananda implies such limits. But the Irish Supreme Court, the US Supreme Court and the Canadian Supreme Court all refuse to imply such limits. As various scholars have pointed out, it is logically impossible to accept the legal validity of implied limits when they have no textual support in the language and provisions of a Constitution.

The position in Belize even without the 9th Amendment is clear. There is no limit on the power of the National Assembly to amend the Constitution, once the National Assembly acts in accordance with section 69. And the Courts should have no power to strike down amendments properly passed under section 69. The 9th Amendment is only spelling out the law as it currently is in Belize and every other Constitutional Democracy in the world, except for India.

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Those campaigning against the Bill, which we must never forget has the enshrinement of public utilities in state control as its principal objective, say two very wrong-headed things: that the unlimited power to amend, which the Constitution has given to Parliament, is a sure open-door to abuse; and that the Bill would deny access to court for anyone wishing to challenge a Constitutional amendment.

If it is true that the unlimited power of the Legislature to amend the Constitution is an invitation to tyranny, then that has been the position since 1981 when the Constitution came into force. And to argue about what, as a result, is possible in theory without accepting what is impossible in practice, is to proceed in error or deception. We share the same Constitutional democratic system as the big countries. And it is insulting to our people to suggest that there is any greater practical chance of the abuse happening here, as opposed to happening in Canada or the US. Just as in those two countries, there is in Belize the kind of democracy, tradition, and people power that is the ultimate safeguard against abuse.

Then, of course, the 9th Amendment Bill does not stop any citizen from going to court. And the campaigning Lawyers know this. The Bill says that‌ “a law passed by the National Assembly to alter any of the provisions of the Constitutions in conformity with this section shall not be open to challenge in any court of law on any ground whatsoever.â€? That language does not mean that an applicant is unable to make a claim in Court; that he would be debarred from filing his papers in the Registry; or that the court would turn back the suit and not hear the matter. The language does mean that a Court, and this is the position even without the Bill, should find against an applicant who seeks to strike down any amendment passed in conformity with Section 69.

That no one is stopped from going to court is made clear by the Irish Supreme Court case earlier referred to, in which the court did not refuse to hear the challenge to the Constitutional amendment.

The Pakistan Constitution, in its Article 239, unequivocally states that (1) there is no limitation on the authority of parliament to amend the Constitution, and (2) the Court must not entertain legal challenges against Constitutional amendments. Yet there have been countless cases brought in that jurisdiction attacking Constitutional amendments. The Courts have heard everyone.

I hope this clarifies things and, needless to say, the Government will consider itself bound by the outcome of the public consultation process.

Sincerely,

DEAN BARROW -----------------------------------------------------------END.

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