Arguments conclude for Telemedia and B.E.L. Appeals Court case
Eamon Courtenay
Arguments concluded today in the court of appeal in the nationalization of B.T.L. and B.E.L. British Barrister Nigel Pleming representing the British Caribbean Bank’s arguments focused on why the 2011 nationalization act was invalid since it seeks to revive the 2009 nationalization act which was declared null and void by the court. On the government side, senior counsel Denys Barrow replied to submissions made earlier by Queens Counsel Peter Goldsmith and Senior Counsel Eamon Courtenay who is also appearing on behalf of Fortis, the previous owner of B.E.L. After three days of hearings, the Court of Appeal will not deliver judgment as the presence of Justice Awich on the panel will be challenged at the Caribbean Court of Justice. After six o’clock this evening, News Five spoke to Courtenay as they exited the courtroom.
Eamon Courtenay, Attorney
“The public purpose stated for the acquisition of Belize Telemedia Limited, the Court of Appeal found was invalid and in fact was a direct attack on the rights of Michael Ashcroft; that was the intention of the government. Now what did the government do in 2011? They passed an amendment and say well it is retroactive to 2009. So Prime Minister Barrow, in his speech in the House, says the reason is the same. So the point that we are making to the court is that what you have is this court giving a judgment, the government not respecting it and then when they realize that they are going to be challenged, they go and amend the constitution—attaching to the constitution certain sections which apply only to our clients. It don’t apply to anybody else. So in other words, those pieces of legislations are what we call targeted legislation; they are decided for the government to win the case and for our clients to lose. What the government has been arguing is that with the eighth amendment to the constitution, they are able now to pass any constitutional amendment and the court doesn’t have jurisdiction to determine whether or not that amendment to the constitution is valid. We, of course, strongly object to that and submit to the court that in a democracy, where the rule of law is paramount; that everyone has to have the right of access to the court and to be able to challenge any type of legislation; including a constitutional amendment. What is of course of particular importance in this case is that the constitutional amendment sought directly to appeal, in a way, the judgment of the Court of Appeal because as you know Telemedia won the appeal and then they passed the eighth amendment—wiping away the judgment. We saw that that is violating the rule of law; it is violating the Constitution of Belize and we’ve asked the court to strike down eighth amendment. Then I argued the case for Fortis. And the interesting thing there is that the Fortis Legislation was passed four days before, on the twentieth of June 2011, four days before the decision of the Court of Appeal in the Telemedia case. The law that was used to acquire Fortis was virtually identical to the law used to acquire Telemedia which the Court found unconstitutional. So I think the court has no choice, but to find the nationalization of B.E.L. unconstitutional. You may have heard and I’m sure the media has reported that the current board and management of Belize Electricity Limited probably aware of what is going to come is rushing to take steps to attempt to raise money by issue shares and preference shares and debentures and all types of things. So we have an emergency application in court to deal with that next week.”
Jose Sanchez
“What were your reasons for wanting Samuel Awich recused from the case?”
Eamon Courtenay
“Well British Caribbean Bank and the Employees Trust have made a complaint to the Judicial and Legal Services Commission to investigate whether Justice Awich ought to be a judge of the Court of Appeal. That matter is pending and essentially they are saying since that is pending, obviously you should not sit because obviously we have a grievance; there is a dispute between the two parties; you are not an independent and impartial judge. As you know the court refused that by majority. They gave permission to take that issue to the CCJ. This complaint was made some time ago; that’s the first thing. Secondly, when this appeal session as coming up, we wrote and pointed out to court that there are these cases pending that relate to British Caribbean Bank and to the Employees Trust. Now when the Court is determining who is going to sit on the panel, there are four judges and we only need three. So since there is an issue between these clients and the particular judge, it was suggested to the court that they should consider not asking Justice Awich to sit and have Justice of Appeal Morrison sit and so the issue would not arise.”
Jose Sanchez
“The Awich matter is now going to the CCJ. So the outcome of this case is pending regarding CCJ. How soon do you see this matter being vetted by the CCJ?”
Eamon Courtenay
“We expect that it will be on an expedited basis.”
