Will Belize Bank Finally Be Paid for U.H.S.?
The Caribbean Court of Justice this morning heard dueling applications from the Belize Bank Limited and the Attorney General in Port of Spain concerning the still-outstanding U.H.S. matter. The C.C.J. ordered the forty-million dollar Belize Bank loan to be paid last November. The loan, made to the original owners of U.H.S. and guaranteed by Government, has accrued over fifty million dollars in additional interest and remains unpaid. A supplementary bill authorizing payment was read in January, even as parliamentarians aligned with the U.D.P. lined up to publicly oppose payment. But at the C.C.J. today, despite complaining about the Government’s lax approach to paying the debt, Senior Counsel Eamon Courtenay agreed to offer one last chance for Belmopan to make good. News Five’s Aaron Humes reports.
Aaron Humes, Reporting
For three hours in Port of Spain today, attorneys for the Belize Bank Limited and the Government dueled over whether the Government should proceed to enforce the ninety-plus million dollar judgment in favour of the Bank issued last November, or scrap it. Senior Counsel Eamon Courtenay told the five-judge panel that only they can solve this conundrum.
Eamon Courtenay
Eamon Courtenay, Attorney for Belize Bank Limited
“The only method of enforcement available to us is the certificate under Section twenty-five [of the Crown Proceedings Act]. It specifically says so: where the Government is concerned, get your certificate and serve it, and they shall pay.”
Adrian Saunders, Judge, Caribbean Court of Justice
“Let me ask another way: what is it do you expect, or are asking this court to do?”
Eamon Courtenay
“We are asking the Court to declare that the order has not been paid; and two, to issue an order saying to the Minister of Finance that you must pay.”
Adrian Saunders
Adrian Saunders
“Why can’t those requests and claims be made at the trial court?”
Eamon Courtenay
“Because, Your Honor – I won’t say that they can’t be made, they can be made at the trial court; but what I am saying to the court is, that in our respectful submission, we are entitled, based on the authorities that we have, to come here, in the limited circumstances of this case, for that relief. If we go to the trial court, it is clear as day that we will get the order of mandamus, we will serve it, and – what? The Government will go to parliament and vote no.”
But might this be premature? After all, following Friday’s budget reading, the debate is scheduled for the twenty-second and twenty-third of March and the original bill is still on the table. Courtenay said that on instructions from his clients, they are prepared to wait and see where the parliamentary debate goes and if the funds are allocated.
Eamon Courtenay
“If, and we weighed this whole issue of Parliament tabling the bill and not doing anything with it, we are prepared to wait for the House to meet next week and let’s see what happens. If the monies are appropriated, over terms, then that’s the end of the matter. We are prepared to wait for that, and see whether the fact will be established; or whether the Government of Belize says to the C.C.J., ‘We don’t care; we have a right to decide.’ I don’t want to read to this court some of the things that have been said by the ministers, they’re in the evidence. But we are prepared to step back and adjourn this matter and have the Parliament speak. This is a fundamental issue, Your Honors, and with the greatest of respect, this Court, for the benefit of the region, has to pronounce on this matter. And if it is that an essential element is the decision of Parliament, with respect, I would like an adjournment.”
Meanwhile, the Government is seeking a reduction in the amount of interest to be paid and also questions the validity of the certificate based on compliance with either the Arbitration Act or the Crown Proceedings Act. Queen’s Counsel Doctor Ben Juratowich, appearing for the Government, maintained that Parliament still has final say and that the Court should be careful in exercising what jurisdiction it has – but he got into a back and forth over whether the Government is being advised to disobey.
Dennis Byron
Sir Dennis Byron, President, C.C.J.
“I’m just intrigued that the Government would be getting this kind of legal advice; it’s a little bit foreign to my thinking, in terms of what I considered to be the position which you had advocated earlier, that the government had an obligation to pay – because that was what you said earlier. That’s what triggered my inquiry, when you offered the point of view that the Government had an obligation to pay. So I don’t see how in the same breath you can say that it has a right to decide not to pay.”
Dr. Ben Juratowich, QC, Attorney for Government of Belize
“It would not be the Government, with respect, that would be making that decision…”
Sir Dennis Byron
“It’s simple!”
Ben Juratowich
Dr. Ben Juratowich, QC
“It would be Parliament – with great respect, Mr. President, it’s not the same thing in your authority on B.C.B. and Belize, where the court emphasizes that although there is a close connection between the Executive and Parliament, the Constitution of Belize – and I quote from paragraph forty-two of the judgment in that case, carefully distributes among the branches the unique functions that each is authorized to exercise. And in this case, it is the exclusive remit of Parliament, to decide whether or not to make an appropriation of funds, and that cannot be changed by judgment of the Court.”
But is that tantamount to disobedience of a court order, or as President Byron put it, is the Government playing a game? Juratowich said no.
Dr. Ben Juratowich
“The court order, Mr. President, is not addressed to Parliament; the court order is addressed to the Executive. And it is very important to bear in mind, as you did with B.C.B., that there is a meaningful difference between the Executive and the Parliament. So your order would not be effected; the ability of the Executive to satisfy [it] would be. If the court wished, for example – if a new case was brought seeking mandamus and if the provision allowed for mandamus, which this one doesn’t, then there could be a conditional order of mandamus, requiring satisfaction upon the availability of lawful funds. But the court couldn’t, consistently with the separation of powers, and without provoking a constitutional crisis, require a member of the Executive to pay a judgment which he was not lawfully in funds to pay.”
Sir Dennis Byron
“But that’s playing a game.”
Dr. Ben Juratowich
“With great respect, Mr. President, the separation of powers is not a game.”
Sir Dennis Byron
“But that is how it sounds just now.”
Dr. Ben Juratowich
“Well, it is to my great regret that that’s how it sounds, but this is a principle that flows directly from the struggles between the Executive and Parliament for control of the purse strings of Government.”
And that means it is still in Parliament’s hands, as the C.C.J. retired following today’s arguments to await that outcome. Aaron Humes reporting for News Five.
In other news from the C.C.J., Justice Adrian Saunders is taking over as president from Sir Dennis Byron with effect from the fourth of July, 2018. He has served as a judge at the C.C.J. since 2005 and will become the third president of the Court, following Byron and Justice Michael de la Bastide.
