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Neither a Smith nor a Goldsmith. Barrow & Young Beat 2 Former Attorney Generals Print E-mail
( 2 Votes )
Written by Shane D. Williams   
Thursday, 27 October 2011 00:00

Vaughn Gill and Ricardo Castillo filed for an injunction at the Supreme Court asking Chief Justice Kenneth Benjamin to interfere with the legislative process by ordering the Attorney General and Governor General not to sign the Ninth Amendment into law until a referendum is held on the issue. The case is of such significance to the Ashcroft Alliance that the lord chose not to rely on the legal skills of Belize’s former Attorney General, Smith; therefore, he went for Goldsmith. British Q-C Lord Peter Goldsmith, former Attorney General of England, presented arguments on behalf of the claimants on Wednesday, October 26th. Solicitor General, Cheryl Krusen, represented the Attorney General and Governor General. On Friday, October 21st, Chief Justice Benjamin rejected the application for injunction. That led to an unprecedented sequence of events.

The alliance managed to get a single Justice of the Court of Appeals, Douglas Mendes, to agree to hold hearings throughout the weekend. On Saturday, October 22nd, Lois Young appeared on behalf of the Attorney General and Governor General. She explained that because of the short notice she was not able to consult her clients in order to provide proper representation. Mendes decided to break until 3 p.m. on Sunday to give counsel for the respondents an opportunity to consult with her clients.  On Sunday, Young explained that based on the Constitution of Belize the Court shall not sit on public and bank holidays or on Sundays. She also questioned the jurisdiction of a single judge to hear a case and make a ruling at the Court of Appeals. It was agreed that it was not an official sitting and Justice Mendes said he would determine whether he alone could hear and rule on the matter at 6 a.m. on Monday, October 24th.

A   6 a.m. session on Monday was the third in a series of unprecedented sessions by the Court of Appeals. Lois Young was disconcerted by Justice Mendes’ rush to address Castillo and Gill’s application. She said, “I have no idea what to make of it. All I know is the application was filed on Friday and we were summoned to court on Saturday, brought back on Sunday and brought back to court this morning at 6am. I have no idea why it had to be done in that haste but that's the way it is." On Monday, Mendes explained that he does have jurisdiction to rule on a matter as a single judge and instructed the parties to present their arguments.

Goldsmith was lead attorney for the claimants. He was supported by Godfrey Smith and backed by a team of solicitors. He argued that the government had an obligation to hold the referendum before passing the Ninth Amendment into law. Lois Young was lead attorney for the Government. She explained that the Vellos case has already made it clear that a referendum has no influence on the legislative process. From that case the Court was also warned that it must be careful in its judgment and should not interfere with the Legislature. Arguments by both sides lasted a little over 2 hours combined. At the end of submissions by both sides, Justice Mendez asked counsel for the respondents if she would have a problem if the Court grants an injunction for a short period of time to allow the claimant to present its case before the full court. Young asked, “What would be considered a short period of time?” Justice Mendez responded, “A period of time that is not considered long.” Young expressed that she would concede to no injunction. Mendes then called for a recess before he delivered his judgment. Mendes handed down his ruling at approximately 9:30 a.m. He refused the application for injunction but reminded the parties that an appeal for the case to be heard by the full court (three Justices) had already been signaled by the claimants. He said that their appeal had no real prospect for success but decided to grant a temporary injunction, until 4 p.m. on Tuesday, October 25th, in order to give the claimants an opportunity to have their case heard before the full court. Lois Young spoke to the media after the decision and she was still unhappy with the rush to hear the case. Knowing that the Senate was meeting at 10 a.m. on Monday, October 24th, it would appear that the weekend and early morning sittings were for a ruling to restrain the Senate. But as Young explained, “The application was never to restrain the Senate so why was there such a haste to have it heard today? I think that what they were trying to do was restrain the Senate by a back wind - by a side wind - by a back door - by somehow having an injunction on someone to stop the Senate from meeting but that's not possible. The Senate wasn't made a party to these proceedings."

The full court convened at 11 a.m. that same morning. Justices Sosa, Morrison and Pollard presided and other business of the court was set aside. Goldsmith led for the claimants once again. This time an argument of “legitimate expectations” stood out. Goldsmith argued that the claimants had legitimate expectations that a referendum would be called before the passage of the ninth amendment because the Prime Minister said that parliament would be bound by the consultation process. Denys Barrow joined Lois Young and led the case for the respondents. He responded to the legitimate expectations argument. It was based on a letter written by Prime Minister Barrow in which he said, “The Government will consider itself bound by the outcome of the public consultation process.” Barrow argued that the Prime Minister was referring to an official sanctioned public consultation process which provided Belizeans from each district with the opportunity to express their views on the proposed bill. Barrow delivered his points masterfully, to the amazement of even the foreign solicitors who kept smiling as his sharp points were delivered. Goldsmith himself found delight in Barrow’s “eloquence”. Barrow spoke of Justice Mendes’ decision to grant a temporary injunction saying, “The judge erred or was misconceived in seeking to restrain the legislative process particularly in the passage and assent of the Ninth Amendment Bill to the Constitution.” Barrow said that after Mendes had already indicated that the complainants’ appeal had no real prospect for success, he “fell into well meaning but grave error in his appreciation for where matters there stood.” He went on to say that “an injunction as a matter of discretion could not be granted.” Late Monday evening, Barrow argued, “It is my understanding that the bill has passed through the Senate and left only to be forwarded to the Governor General.” In terms of the injunction to stop the passage of the bill until a referendum is held, he asked, “What would be the purpose of this Court to do so? If the referendum you claim to want cannot influence the legislative process then why grant an injunction? To achieve what?”  The Court reserved judgment for 2 p.m. on Tuesday, October 25th.

On Tuesday, Justice Sosa delivered the Court’s ruling. He said the request for an injunction “should be refused for reasons which the court shall present in writing at a later date.” Barrow then submitted an application for cost to be rewarded to respondents. He argued that though cost is not usually granted to respondents in public law matters, the claimants’ determination to proceed even after it was clear that they had no chance is not something the respondents should have to pay for. He said that Justice Mendes had already advised the complainant that the case had no real prospect for success and the bill had already been passed by the National Assembly. It was open to the claimants to instruct their attorneys that no purpose would be reached if they were to proceed. However, “They decided to try a thing.” Barrow said, “Going forward with the case cost us great additional work.” He concluded, “Because of the quality of attorneys they are able to afford, it is only right that they reimburse the public purse.” Godfrey Smith defended the complainants in the respondent’s application for cost. He argued that cost should not fall on the complainants because the matter is of great public concern. He did not shy away from the political aspect of the case. He said in a country that is so politically divided it is impossible to find a topic that is not politically influenced. However, political motivation does not diminish public importance. The justices deliberated for a few minutes and ruled, “Court is satisfied that there is no order regarding cost.”

Hon. Anthony “Boots” Martinez, Minister of Works and Government’s chief proponent for pro-poor programs, was in court throughout the ordeal. He said, “I wanted to know that if my reading and interpretation as a member of the National Assembly was wrong but I was almost 100% certain that my reading is OK. You don't have to be an attorney to read simple words.” He was disappointed by the fact that cost was not awarded. He asked, “Soh only Goldsmith fi get pay?”