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The Constitution is Supreme No Judge can change it! Print E-mail
( 2 Votes )
Written by Administrator   
Thursday, 28 July 2011 00:00

P.M. Dean BarrowThe People’s United Party and its lawyers are going to great extents to try to confuse the Belizean public as to what the 9th constitutional amendment is all about. Speaking to the Guardian on the issue the Prime Minister said that the PUP had bad intentions and were in fact using bad law to try to persuade the Belizean public.

The PM said that, “the amendments do no more than clarify and confirm what is the existing legal position and if these lawyers were worth their salt and prepared to be honest they would concede that.” To prove the position the PM pointed to a case from Belize in which the Privy Council deals with the matter.  The case in question is appeal #0091 of 2009- Alberto Vellos vs The Prime Minister of Belize in which the PUP attacked the 6th constitutional amendment bill. In its judgment the Privy Council made it clear that once there is an amendment to the constitution; passed properly with the required ¾ majority and after the 90 day period and the certificate to that effect no court can interfere with that constitutional amendment. The argument follows that what the government is doing now is simply conforming with the law.

In Privy Council appeal #0091 of 2009-Alberto Vellos vs The Prime Minister of Belize- the Privy Council held that the Referendum Act of Belize, being an ordinary law, could not impose a requirement that a referendum be held before a fundamental Constitutional amendment could be passed. Such a requirement would impose a limitation on the provisions in the Constitution (section 69) that spells out how the Constitution is to be amended. That requirement would therefore be void as being unconstitutional. It followed from that judgment that if the National Assembly couldn't impose a limitation on the power of a government to amend the Constitution by a two thirds or three fourths majority as provided for in section 69, neither could the courts.

Before the Privy Council decision, there had been a judgment by Chief Justice Conteh that had said that certain fundamental provisions in the Constitution needed more than just satisfaction of the stipulations in section 69 of the Constitution for passage. But the Privy Council made it clear that no such limitation existed in, or could be imported into, the Constitution. The provisions in the Constitution as to how you alter the Constitution, are all-inclusive and exhaustive. Thus, no court can inquire into the merits of a Constitutional amendment passed in accordance with section 69. But there is always access to court to determine whether the Constitutional amendment did in fact comply with the section 69 requirements.

The Alberto Vellos case was one brought by the PUP to stop the Legislature of Belize from passing the Belize Constitution 6th Amendment Bill. Conteh had granted the PUP an injunction restraining the National Assembly on the basis that a referendum, under the Referendum Act of Belize, was needed in addition to the three fourths majority and the ninety day consultation period. But Conteh was overruled by the Privy Council, which made it clear that the Legislature and the courts were themselves creatures of, and subject to, the Constitution. Neither Legislature nor Courts could in any way, or by any means such as a referendum requirement, interfere with the provisions of the Constitution in section 69 setting out how the Constitution can be amended. Unless section 69 was itself changed by a Constitutional amendment, it stood predominant. Thus, as long as section 69 remained in the Constitution, no one could stop from passage- or question after passage- amendments duly enacted under section 69 of the Constitution.

All that the Belize Constitution 9th Amendment Bill is doing now is to spell out expressly in the Constitution what the judgment of the Privy Council-at the time Belize's highest court-confirmed. The 9th Amendment Bill enshrines the ownership of BTL and the other utilities in the Constitution. And it says that once any amendment to the Constitution, including the one enshrining state ownership of the utilities, is properly passed, the courts cannot require anything more to be done; and cannot overturn or interfere with the Constitutional amendment. This is because the court is bound by that amendment as a newly created part of the Constitution to which the court is subject. As affirmed by the Privy Council, it is the Constitution and not the court that is supreme. And that supreme Constitution gives the Legislature the power to amend the Constitution once there is compliance with the section of the Constitution saying how the amendment is to be done. What the supreme Constitution gives to the Legislature, the courts-which are not supreme, but subject to the Constitution-cannot take away or limit.

This is the law as laid down by the Privy Council. But it is also democracy and good sense. The framers of the Constitution were wise in giving the power to amend the Constitution to a two thirds or three fourths majority of Parliament, and not to the courts. That is because the Legislature, and the people who make it up, are answerable to the electorate, but the courts are not. If the government with a three fourths majority passes a Constitutional amendment that the electorate doesn't like, the electorate can throw out the government. But if the courts, which are not answerable to the electorate, were to be allowed to strike down Constitutional amendments that the courts don't like, then even if the people like the amendments nothing could be done. That is not democracy and it is not compatible with our system of Constitutional supremacy.

It is noteworthy that in no country in the world (with the single exception of India) possessing a written Constitution, are the courts allowed to question-except on the ground of procedural non-compliance-the validity of Constitutional amendments. As in Belize, once the requirements in the Constitution setting out how the Constitution can be amended are followed, no court elsewhere is able to question the merits of the Constitutional amendment.

To repeat, and as the Privy Council case of Vellos v The Prime Minister of Belize makes clear, that is also the law right now in our country. Also to repeat, all that the Belize Constitution 9th Amendment Bill is doing is to reformulate in very precise language what is already the Constitutional position in this land. The PUP lawyers and their allies, having been defeated in the Privy Council, want to fight their losing case all over again. They have accordingly mounted a hysterical campaign that is grossly misleading and inaccurate, where it is not downright malicious and dishonest.

The campaign being launched said the Prime Minister is ridiculous since any government who tries to make constitutional amendments which would step on the fundamental rights and freedom of Belizeans would quickly be put to right. If a government were ever to do something like that the Prime Minister said“the country would break up and the government would fall, would collapse and would in fact be driven out of office.So that kind of extreme scenario is patently ridiculous and absurd.”