NINTH AMENDMENT TO THE CONSTITUTION OF BELIZE:

Following the Trails

1. The Ninth Amendment2. Press Release—Bar Association of Belize3. Press Release—Belize Chamber of Commerce4. Open Letter from the Prime Minister of Belize5. Press Release from the Council of Churches

August 2011

(www.belize.org)

BCCI Calls on the Government to Withdraw the 9thAmendment BillWednesday, August 3, 2011If enacted, the proposed Ninth Amendment to Belize’s Constitution creates a very dangeroussituation, which is not contemplated by our Constitution. It allows the Legislature to haveabsolute power to amend the Constitution as long as it has the requisite two-thirds to three-fourths majority and follows the other procedural requirements under Section 69 to enable theamendment. In effect, we move from a Constitutional Supremacy where the laws passed by theLegislature must conform to the Constitution, to Parliamentary Supremacy where the Parliamentis supreme and can pass any law without reference to our Constitution. The potential for abuse isreal. If the Legislature has absolute powers it can take away any fundamental right or freedomfrom Belizeans by further amending the Constitution, and we will have no recourse to challengethe substance of the amendments.In other words, with the passage of the Ninth Amendment we risk losing the basic rights andfreedoms we as Belizeans consider the very essence of our democracy. We would be placingultimate control of our democracy in the hands of our elected representatives, without any checkon their powers. As with the recently withheld proposed Eighth Amendment (PreventativeDetention), we note that this current administration had proposed drastic changes to our personalliberties. With the Ninth Amendment, the Eighth Amendment can be reintroduced, and we wouldbe unable to challenge its substance in the courts.In our democracy all persons are equal before the law, and all persons are afforded equal rightsto challenge any law passed by the Legislature. While the Chamber recognizes the right of theGovernment to nationalize property, every person whose property has been acquired should havea right to access the Court to challenge that acquisition. If the Constitution is to be amended todeny that right to certain persons, it creates inequality in our law, undermines our democracy andsets new precedence to which we can all become victims.Further, the Chamber objects to the proposal that investment of Social Security funds, thepeople’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 iswhy the Chamber and other social partners fought in 2005 to take the Social Security fund out ofpolitical control. The Ninth Amendment seeks to reverse the people's will as expressed at thattime and to deem the Social Security Board’s (SSB) shares in our public utilities as a part of theGovernment’s shareholding, with the requirement that if the SSB is to sell its shares, it must firstoffer the shares to Government. Aside from infringing on the SSB’s freedom to deal with itsproperty, this gives rise to possible conflict of interest and abuse.If the entrenchment of ownership of public utilities is all the Ninth Amendment sought toachieve, the Chamber would not be so concerned. However, when the Government goes beyondentrenchment and seeks to interfere with our fundamental rights as Belizeans, rights which if lostmay never be regained, this cannot be taken lightly.The Chamber calls on the Government to withdraw the Ninth Amendment and renews its call forthe Government to desist from taking any actions that offend the principle of separation ofpowers 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.” 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

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~~~~ P.O. Box 508, Belize City, Belize.

Rev'd Canon LeRoy Flowers . Ms. Gweneth Gillett ,II' President 207-2365/2030290 Secretary 224-4009

PRESS RELEASE

The Nation of Belize is founded upon principles which, inter alia, acknowledge the Supremacy of God, faith in human rights and fundamental freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their creator. The Belize Council of Churches having reviewed and considered the amendments proposed by the Government of Belize in the Belize Constitution (Ninth Amendment) Bill, 2011, is most concerned about the potential erosion of this most fundamental principle by the proposed amendments through the conferral of unbridled legislative power to change the constitution and wishes to make the following statement:

(1) The Council does not support the proposed amendment to section 2 of the Constitution.

The Council accepts that the Belize Constitution is the Supreme law of Belize and properly imposes substantive limitations on the power of the National Assembly to make laws. In particular section 68 of the Belize Constitution provides that the National Assembly shall make laws "subject to the provisions of the Constitution for the peace order and good government of Belize". Therefore any amendments to the Constitution which are inconsistent with the fundamental principles set forth in the Constitution particularly the preamble, is beyond the law making authority of the National Assembly since such laws cannot be for the peace order or good government of Belize. For it to be otherwise would allow for internal inconsistencies in the Constitution itself and thereby make a mockery of the Constitution.

Other Executive Members Most Rev'd D. Wright Rev'd Fr, N. Leslie Rt. Rev'd P. Wright Major H. King Rev'd R. Papouloute Mr. F. Shyu Mrs. Y. Murray Ms. R. Armstrong

(2) The Council does not support the proposed amendment to section 69 of the Constitution.

A necelssary corollary to substantive restrictions on legislative power is the power of the Judiciary to review legislation to ensure compliance with the Constitution. The Judiciary is also empowered by section 20 of our Constitution to enforce the protection of our fundamental rights and freedoms if any of us believe our fundamental rights and freedoms to have been contravened. If the judiciary is to effectively carry out this function, it is critical that they 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 set out in section 69 have been met.

(3) The Council supports the proposed insertion of Part XIII into the Constitution for the purposes of (i) ensuring that ownership of the public utilities defined therein will be owned and controlled by the people of Belize and (ii) that tangible benefits will by extension be passed to the people of Belize via such ownership. However, the Council does not support the proposed bar on the jurisdiction of Courts to inquire into the constitutionality, legality or validity of the acquisitions nor any derogation of the rights of the former owners of these utilities. The Council calls on the Government secure the public utilities for the Belizean people in a manner which respects the rights of the former owners of these utilities.

Dated August 8, 2011 .~

~~~~ The Rev'd Canon LeRoy Flowers

President