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11 October 2012
Supreme law clause
Validation of nationalisation?
Eighth Amendment trimmed
The Belize Constitution (Eighth Amendment) Bill is perhaps the most controversial amendment to the Constitution ever proposed. It was introduced in the House of Representatives on the July 22 2011 and was subject to widespread heated debate. The Belize Bar Association went so far as to procure two opinions from leading international constitutional law scholars. The amendment was introduced against the background of the Court of Appeal's decision that the government's nationalisation of Belize Telemedia Limited, and certain security interests of British Caribbean Bank Limited, was unlawful, null and void. The primary purpose of the amendment was to make the renationalisation beyond legal challenge.
The Eighth Amendment was unprecedented in its implications for future challenges to constitutional amendments and to the power relationship between the executive, legislature and judiciary. Many regarded it as a threat to democracy.
Section 2 of the Constitution contains the supreme law clause:
"This Constitution is the supreme law of Belize and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void."
Laws inconsistent with Section 2 have been declared unconstitutional. The Eighth Amendment sought to amend this section by adding the following:
"Section 2 of the Constitution is hereby amended by renumbering that section as subsection (1) and by adding the following as subsection (2): (2) The words 'other law' occurring in subsection (1) above do not include a law to alter any of the provisions of this Constitution which is passed by the National Assembly in conformity with section 69 of the Constitution."
The intention of the legislature was made clear in the amendment to Section 69. The newly amended Section 69(9) provided:
"For the removal of doubts, it is hereby declared that the provisions of this section are all-inclusive and exhaustive and that there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution."
The clear intent of these amendments, taken together, was to provide that once the National Assembly passed an amendment to the Constitution in compliance with the procedural requirements of Section 69 it would become a part of the Constitution. The result would be that as a part of the Supreme Law it could not be declared unconstitutional by any court. In short, the power of the National Assembly to amend the Constitution would henceforth be unchecked.
In addition to these far-reaching amendments, the Eighth Amendment declared that the property acquired under the 2011 acts (and the amendment to the Electricity Act which was used to nationalise Belize Electricity Limited) "was duly carried out for a public purpose in accordance with the laws authorising the acquisition of such property". By this provision, the government sought to put the acquisitions beyond question. It was designed to insulate the nationalisations from any legal challenge by the property owners, the intent being that they should be satisfied with compensation.
The Supreme Court once again accepted that the basic structure doctrine applied to Belize. This doctrine was first accepted in the landmark Barry Bowen(1)decision. The essence of the basic structure doctrine is that there are certain fundamental provisions and tenets that underpin the Constitution which the legislature cannot amend. This is because the power to legislate and amend the Constitution is a limited power subject to the Constitution.
Relying on this principle and the separation of powers doctrine, the Supreme Court declared that the amendments to Sections 2 and 69 were in excess of the legislature's competence. It was not possible for the legislature to amend the Constitution with the result that subsequent amendments would not be amenable to judicial review. The court went further and declared that the provision that sought to insulate the nationalisations was also unconstitutional as it attempted to render the nationalisations immune from judicial review.
All that remains of the Eighth Amendment is Section 143, a definition section and a portion of Section 144. The part that was saved reads:
"From the commencement of the Belize Constitution (Eighth Amendment) Act 2011, the Government shall have and maintain majority ownership and control of a public utility provider."
This appears to be declaratory and does not seek to effect an acquisition. There remains serious doubt about the legality of the government's nationalisation programme and those doubts are likely to be resolved on appeal to the higher courts.
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