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Digging deep into to roots of the 9th Amendment to the Constitution of Belize [FYI]


"The 9th Amendment this", "The 9th Amendment that" is all we have been hearing all over Belize right now. The newspaper, the web, the radio everywhere there is someone talking about the 9. Do you agree with me? That's what I thought.

Have you been asked lately if you support the 9th Amendment or go against it? If you have, then let me say that you have been officially infected by the 9 virus. LOL!!! It might sound crazy but it isn't that bad. As a Belizean you have the absolute right to know what the 9th Amendment is.

So in an effort to let everybody understand what the 9th Amendement is we have done some intense research to clearly explain what this 9th Amendment is and here is what we found.

According to Ambergris Today:
The debate on the ninth Amendment hosted by Love F M Radio and Television had members of the senate, President of the Bar (Association of lawyers), former Attorney General and the Solicitor General. After four hours of debate Moderator of the program Senator Goodwin Hulse summarized the entire procedure as follows:

In its desire to fix matters on the acquisition of BTL, the government has changed parts of the constitution of Belize so that the owners cannot take this matter the court anymore. So far, so good for nationalization. However the government is proposing to add more to the changes or amendments so that in the future parliament or the National Assembly will be able to make new laws and nobody will be able to challenge this in court. The National Assembly will have supreme powers and not the court. All lawyers are arguing that this is taking away our rights and freedom.
An example given: Suppose the National Assembly makes changes to the constitution calling general elections every 20 years instead of every 5 years. Once passed, nobody will be able to challenge this in court. This is only one example.
On the other side of the debate government officials argued that it is not so - that citizens will still be able to take matters they don’t agree with to court.
Thus ended a historic debate which, in our opinion, did give a bit of light to the case in question. The only question that remains is who is saying the truth and who is telling lies. We do need more of these debates to try to discover who is speaking the truth. Good idea! Maybe a debate in San Pedro can be hosted (perhaps by the J P Association) where we can participate.
According to The Belize Times:
“If enacted, the proposed Ninth Amendment to Belize’s Constitution creates a very dangerous situation, which is not contemplated by our Constitution. It allows the Legislature to have absolute power to amend the Constitution…. In effect, we move from a Constitutional Supremacy where the laws passed by the Legislature must conform to the Constitution, to Parliamentary Supremacy where the Parliament is supreme and can pass any law without reference to our Constitution,” stated the Chamber’s release.
Allowing Parliament to bestow on itself such absolute rule opens the doors to possible abuse, viewed the Chamber, and that could result in the removal of citizens’ fundamental rights and freedoms without being able to challenge them in the Courts.
The Chamber warned that the suggestion was not a fear tactic, and pointed out that it is this very same Barrow Administration who “proposed drastic changes to our personal liberties” through Preventative Detention and the 8th Constitutional Amendment. While it has been withdrawn the “8th Amendment can be reintroduced, and we would be unable to challenge its substance in the courts,” admonished the Chamber’s release.
The Belize Chamber of Commerce is the most recent in a string of organisations, well-known activists and political heavy-weights from both sides of party politics to declare their opposition to Government’s 9th constitutional amendment.

It is a lot isn't it? You still don't understand it? Well here is a the original letter from the Prime Minister himself.

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.


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


So you see there is a lot to this 9th Amendment than we might have thought. At the end of the day we the people decide whether we say YES or no the NO the 9.

You can vote below on our POLL if you like or you can comment on the article if you have anything that you want to add. Remember this is just an effort to educate the Belizean community that's all.





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