The Government of Belize gets to keep the Belize Telemedia Limited and Belize Electricity Limited. That's the decision of the Court of Appeal after deliberating for 1 year and 7 months on whether or not the Government lawfully acquired both utility companies to ensure the government and people of Belize maintain perpetual ownership.
In a majority decision, Justice of Appeal Samuel Awich and President Justice Manuel Sosa allowed the appeal from the Government and set aside the Justice Oswell Legall's Supreme Court decision which said that the re-acquisition was unlawful, null and void.
It's a hugely consequential win for the Government because the last time this issue was argued at Court of Appeal in June of 2011, the judges declared that the Government improperly took over control of BTL.
The dissenting vote to this appeal came from Justice of Appeal Douglas Mendez - the only non-resident judge. He agreed that the properties of Ashcroft allied entities of British Caribbean Bank, Dean Boyce and the Employees Trust were unlawfully acquired. But with a ruling of 2 to 1, the decision of the Court of Appeal swings in Government's favour.
After the decision was handed down by President Sosa, we spoke to the parties outside the court room:
Daniel Ortiz
"From our understanding it seems as if though it's a monumental win for the government of Belize. The re-acquisition of BTL is ruled lawful and the FORTIS appeal is dismissed. Can you explain?"
Denys Barrow, attorney for GOB
"I think that's a beautiful summary by you. I like it."
Eamon Courtenay
"I think a very vigorous appeal is going to be put forward by our respective clients and the matter is going to move very swiftly through the Caribbean Court of Justice."
Wilfred Elrington, Attormey General
"I haven't read all of it, it's a long thing, but it looks like it's a blowout for government which is of course they have every right to appeal it and we expect that they will appeal it. At this point in time the people of Belize have every right to feel good about this decision."
Denys Barrow, attorney for GOB
"Obviously its 300 plus pages of judgment and nobody has had a chance to do anything other than to flip through 2 or 3 or 4 pages, so there is not any informed basis for making any substantive comment. It was a very detailed list of orders and dispositions that Justice Awich made and I think that the media looking at it, reading it out will be very well informed as to what was actually decided in the case."
Daniel Ortiz
"Sir, we notice that the 8th amendment to the constitution where the company vests in the government's control and the people's control is seemed to have been ruled lawful. Can you explain that for us?"
Denys Barrow, attorney for GOB
"Well again remember the 8th amendment was challenged on the basis that the respondents say that the government - the legislature cannot pass certain laws which they say derogate from the basic structure of the constitution. The majority soundly rejected that preposition. 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
"Justice of Appeal Mendez went completely in our favor. He did uphold all the submissions we made. I think that at least we have persuaded Mr. Justice Mendez that the arguments that we presented were compelling and convincing. Mr. Justice Awich as I understand it rule against us on all grounds. We haven't had a chance of course to read what he has said, but Mr. Justice Sosa, the president just concur with him. In terms of those who have given reason judgment, one was completely in our favor, one was completely against us. So I think the CCJ is going to have the final decision on this. 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, its 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's very surprising."
"In so far as the bank is concerned, the entire purpose behind the nationalization was to put control of telecommunication and 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."
Reporter
"The compensation issue is still a live one and..."
Wilfred Elrington, Attormey General
"Yes, we have to pay for it. We understand that and we have offer to pay, so that is not a problem. Government and people of Belize always pay their bills."
Eamon Courtenay
"The property was taken from the bank and Telemedia shareholders in 2009 from FORTIS in 2011. Tremendous amount of time has passed, arrangements, new directors, new management are in place and therefore to have this dragged on for so long is really regrettable. It has taken a year and a half for this judgment to come down and a lot has happen in the meantime; people's constitution rights are violated in those times. I draw a lot of comfort from the little bit that I have read in Mr. Justice's judgment where he gave 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 think it is, they are still subject to the constitution and they cannot amend the constitution as it feels that it should. My hope and expectation is that that is going to be reaffirm by the Caribbean Court of Justice and that this entire nationalization is going to be overturned."
Since BEL was taken over in the same method as BTL, the Court of Appeal, having ruled that BTL's acquisition was lawful, dismissed the appeal by Fortis Energy, the former owners of the electricity company.
As you heard in the interview, an appeal of this decision is expected to go to the Caribbean Court of Justice as soon as possible. Eamon Courtenay discussed quite a bit of Justice of Appeal Mendez's finding which was in the favour of the Ashcroft Alliance. In his minority opinion, Mendez declared the acquisition of the two companies null and void. He also declared the once controversial eighth amendment as unconstitutional and void. Viewers may remember that this was the amendment inserted into the constitution by the Government to give them the authority to keep perpetual control of the utilities for a public purpose.
A month ago, we told you about the complaint of the Ashcroft Alliance that this decision was far too long delayed. President Justice Sosa apologized to the litigants for the delay, and so did Justice of Appeal Mendez, in his written decision. He writes, quote, "It has taken nearly a year and a half to deliver this judgment. I acknowledge that this is unacceptable." But Mendez did note that the written submissions from all parities clocked in at 500 pages, supported by at least 194 authorities.
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