Prime Minister's response to the Belize Council of Churches Press Release on the Ninth Amendment to the Constitution of Belize.

1. Office of the Prime Minister
Belmopan, Belize, Central America
August 15, 2011
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.
/2…….
Sir Edney Cain Building Tel: 822-2345/2346
Belmopan, Belize Fax: 822-0071
Central America Email: secretarypm@opm.gov.bz

2. /2……..
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
/3…….
Sir Edney Cain Building Tel: 822-2345/2346
Belmopan, Belize Fax: 822-0071
Central America Email: secretarypm@opm.gov.bz

3. /3…….
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.
/4………
Sir Edney Cain Building Tel: 822-2345/2346
Belmopan, Belize Fax: 822-0071
Central America Email: secretarypm@opm.gov.bz

4. /4………
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.
Sincerely,
Dean Barrow,
Prime Minister
Sir Edney Cain Building Tel: 822-2345/2346
Belmopan, Belize Fax: 822-0071
Central America Email: secretarypm@opm.gov.bz