Prime Minister responds to Canon Leroy Flowers Print E-mail
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Thursday, 18 August 2011 00:00

Rev'd Canon Leroy Flowers, President,
Belize Council of Churches

Dear Canon,
I write in response to your letter to me of 4th August, 2011. That letter, which I've only seen today, sets out the position of the Council of Churches on the Belize Constitution (Ninth Amendment Bill), 2011. Since that position has now been widely circulated, I will likewise publicize this response.

The Council of Churches says it supports enshrining the nationalization of the utility companies in the Belize Constitution. But it does not support the changes to Sections 2 and 69 that the 9th Constitutional Amendment Bill proposes.

I have looked carefully at the arguments the Council advances for the latter position, but am sorry to say that I cannot agree with them. Indeed, it is hard to see how the insertion of public control of the utilities into the Constitution could be properly protected without the proposed new Sections 2 and 69. But I know that the Council met with the Executive of the Belize Bar Association prior to making its statement. And it is a pity that the Council did not also seek to hear directly from Government. For I believe that the Council has been led into grave error by the Executive of the Bar. That Executive has called for the courts to be given the power of judicial review over the merits of Constitutional amendments. And it argues that Section 68 of the Constitution, which gives the National Assembly the right to make laws for the peace, order and good government of Belize, is a limitation on the power of Parliament to alter the Constitution.

Now that power of judicial review over Constitutional amendments, which the Bar Executive seeks, is one the courts do not now have. The 9th Amendment Bill merely underlines that fact. Also, and there is case law on this, Section 68 of the Constitution does not in any way impinge on the authority of the National Assembly to amend the Constitution. It is only Section 69 of the Constitution that deals with the ability, including the limits on that ability, of Parliament to change the Constitution.

What the Council of Churches and other Belizeans should know as well, is that in taking its stance the Bar Executive acted contrary to the position of several of its members, including two of the most distinguished of the country's Senior Counsel. The Bar position, unfortunately mirrored now by the Council, is also wrong in the extreme. Further, it is rejected by the jurisprudence of every common-law Constitutional Democracy, with the sole exception of India.

In the end, then, the proposed changes to Sections 2 and 9 of the Constitution, which the Council opposes, only spell out (for the avoidance of doubt) what is currently the case under our Constitution and throughout the Commonwealth of Nations and in the United States of America: no court should be able to overturn an amendment to the Constitution so long as that amendment is properly passed. Of course, it is the Constitution itself that provides, in Section 69, for its own amendment and how any such amendment is to be done. When the Belize Independence Constitution was originally enacted as our supreme law, no one would have dreamed of suggesting that the courts, themselves enshrined by the Constitution and subordinate to it, could have struck down any portion of that Constitution. Indeed no one says even now that the original Constitution, in part or in whole, is subject to judicial review. But an amendment to the Constitution that is passed in accordance with the current Section 69 of the Constitution, itself becomes part of the Constitution. It is therefore a matter of the most elementary logic that if no part of the original Constitution can be upset by a court on the merits, the position must be the same for a properly passed amendment that then stands on exactly the same footing as the rest of the originally enacted Constitution.
Of course, there are members of the Bar that are highly politically motivated. And they have not scrupled to distort the facts and misrepresent the precedents in Belize and similar jurisdictions. As one example, it is not possible, except on the basis of complete dishonesty, to mangle the Privy Council decision in the Belize case of Vellos: Belize's then highest court was clear that no ordinary law, or court, could impose a referendum (or any other) requirement so as to fetter the Section 69 power of the Legislature to amend the Constitution.
Again, the cases from Uganda, Mauritius and Bangladesh cited by one member of the Bar, say only that clauses, including the most deeply entrenched clauses, in a
Constitution must all be amended by their correct procedure. Thus, an amendment that expressly amends one clause by its required procedure, cannot by implication amend another clause that requires a different procedure. In such an instance the first amendment would be right and the second one wrong.
Also, it is just plain fraud for the Bar to suggest that the Indian case of Kesavananda, which says that the Indian Constitution can never be altered in ways that go against the so-called basic structure of the Constitution, has been accepted anywhere else in the world of common-law Constitutions. Rather, the position is as has been declared by Lord Nicholls of Birkenhead in the Privy Council case of Charles Matthew v The State:
"If the requisite legislative support for a change in the Constitution is forthcoming, a deliberate departure from fundamental rights may be made, profoundly regrettable although this may be. That is the prerogative of the legislature."

The matter, then, is beyond doubt. The three/fourths majority elected by the people of Belize have the power given by the Constitution to make any change to that Constitution, so long as it is done in accordance with the Section 69 provisions of the Constitution. And those provisions do not, unlike the provisions in the Irish Constitution or the St Vincent Constitution, require a referendum. If our Constitution is thereby to be seen by the Council of Churches as opening the door to abuse, there is one answer to that. The true safeguard against such abuse lies in our culture, traditions and the vigilance of the very people that have entrusted the current administration with the majority needed to amend the Constitution. But it is not for the courts to probe or change any duly enacted provision of the Constitution. That is for the people via their elected representatives. And that is why, notwithstanding the arguments of the Bar and the Council, courts cannot inquire into Constitutional amendments that the Parliament properly makes, and which then become part of the organically supreme Constitution. There is one last thing I wish to say. The whole point of putting control of the utilities into the Constitution is to make that control unassailable. But Lord Ashcroft, for one, is already seeking in the Caribbean Court of Justice to prevent the very passage of the amendment to Constitutionalize control. To allow him, even after passage, the ability to have a court strike down the amendment, would be truly to frustrate the sovereign will of the Belizean people. And the Council of Churches does seem to agree that it is the sovereign will of the people for the Constitution to be amended in order to safeguard our utilities. Logically, therefore, the Council, and all Belizeans, should be glad that we are trying to make absolutely sure that no one, not even a court, would be able to overturn a Constitutional amendment representing perhaps the most important policy and legislative decision since Independence. But impregnability, I say again, can only be guaranteed by the proposed additions to Sections 2 and 69 of the Constitution. And impregnability, ultimately, is what the 9th Amendment Bill is all about.
I close by making clear that Government is still disposed, even though it would be after the fact of the public position that the Council has already taken, to discuss this matter with the Council.

Dean Barrow,
Prime Minister