Government retains control of utility companies

Eamon Courtenay

The Court of Appeal also ruled interestingly on the Eighth Amendment. Respective counsels did not delve into the details of the judgment, and that is fair since neither has had time to scrutinize the lengthy document. But it is clear that the case is heading to the Caribbean Court of Justice.

Eamon Courtenay, Attorney for British Caribbean Bank

“I have to say that it is rather surprising for this Court of Appeal to have concluded that the taking of the property when it was first taken in 2009…the 2011 judgment said that it was unconstitutional. Now the acquisition of the property from Fortis was based on legislation very similar to the legislation that was held to be unconstitutional. So I have to say that that is very surprising. Insofar as the Bank is concerned, the whole purpose behind the nationalization was to put control of telecommunications and the electricity company in the hands of the government. The Bank is not a public utility, so it is very difficult to understand the rationale for taking the Bank’s property. But that is the decision of the majority of the Court. We have to accept that and respect that. I think that a very vigorous appeal is going to be put forward by our respective clients. The matter is going to move very swiftly to the Caribbean Court of Justice.”

Denys Barrow, Attorney for Attorney-General

Denys Barrow

“The Eighth Amendment was challenged on the basis that the respondents say that the Government cannot, that the Legislature cannot pass certain laws which they say derogate from the basic structure of the Constitution. The majority resoundingly rejected that proposition. Interestingly, Justice of Appeal Mendez would in his dissenting judgment have upheld the idea that a Constitutional amendment can be unconstitutional, so that is very interesting.”

Eamon Courtenay

“Speaking for myself, I draw a lot of comfort from the little bit that I have read from Justice Mendez’s judgment, where he gives full respect for the rule of law…full respect for the basic structure…full respect for the fact that Parliament, regardless of how powerful it may think it is, is still subject to the constitution and that it cannot amend the constitution as it feels that it should. My hope and expectation is that that is going to be reaffirmed by the Caribbean Court of Justice and that this entire nationalization is going to be overturned.”

So, as we said, today’s ruling will be appealed before the CCJ.