| BTL is not for sale - not right now at least, as the Caribbean Court Of Justice has ordered the Government not to sell any more shares in the phone company until the matter of the July, 2011 re-acquisition is settled before the courts.
That's what came out of a special session of the Caribbean Court of Justice - which held a sitting via teleconference between Belize and the court's headquarters in Trinidad.
As we've reported, two weeks ago, the Ashcroft Alliance filed an unusual application in the Caribbean Court of Justice- leapfrogging the Belizean courts and asking the final court of appeal for urgent, interim relief, stopping Government from proceeding with the 9th Amendment to the constitution and a Declaration that the re- acquisition of Telemedia by the Government is void.
The matter was heard today between Belize City and Port of Spain - with a large double flat screen TV and web-cam carted into one of the Supreme Court's courtrooms for the teleconference.
The panel of CCJ Judges was led by Justice Rolston Nelson, with Justices David Hayton and Desiree Bernard. Godfrey Smith and Eamon Courtenay represented the Ashcroft Alliance and Solictor General Cheryl Krusen and Lois Young represented the government.
Arguments were vigorous and far - reaching with the court liberally dispensing opinions on a range of related matters. First, they agreed that, quote: "It is a commercial matter which requires urgent attention and will be treated as vacation business" meaning a matter to be heard when the court is usually on leave.
As regards jurisdiction and the Ashcroft alliance bypassing the local courts, the panel of judges held the position that it is, quote, "a situation which permits the court in its inherent jurisdiction to hear a matter which the court of appeal has not heard….in the interest of justice."
From there the panel proceeded to hear the matter but the court strictly avoided making any determination on the proposed ninth amendment saying that the constitutionality of that bill can be challenged through the courts after it is passed.
Justice Hayton, the only British member of the panel, freely opined that that the constitution could be amended even to re-introduce slavery, but "it would not be held to be valid and constitutional." And from there he asked a loaded, though rhetorical question: "Do we need an injunction if it will be void anyway?"
He was speaking broadly about a hypothetically absurd amendment - like the slavery one - but the point was held that no injunction is needed specifically against the ninth amendment because it will be open to judicial challenge.
The clearest position from the panel of judges was that, quote "If the amendment does come into effect, it is open to go to the courts which can declare it null and void," end quote.
From there the court agreed that day to day management of Telemedia has to be left with government-appointed 2011 board. But, they stressed that - as much as possible - the status quo as regards the company's share-holdings must be preserved to protect the position of the Ashcroft alliance - if it is vindicated in later hearings.
Both sides tried to hammer out a mutually suitable undertaking to preserve that position in the lunch time adjournment but they could not agree - and so the court had to make an order.
It says "that the board (is) permitted to carry on the day to day management…of Telemedia…provided that (Government is) restrained…from taking any steps to sell" any more shares in the company. 30% has already been sold to the Social Security Board and the Central Bank.
The court also made what it called a pro forma declaration enforcing the June 24th. ruling by the Court of Appeals. As you will recall, government said that was a declaratory order and it needed an enforcement order before the Ashcroft Alliance could resume control of BTL. Well, today the CCJ said that quote, "one does not make coercive orders against the state or the crown."
Like we said it was a loaded special session of the court, and after we spoke to both sides about what happened in court:
Godfrey Smith, Attorney for Employees' Trust
"We asked for three things - special leave to appeal this matter to the CCJ. That was granted. We asked for an injunction restraining any sale or disposal of the shares that was granted. We also had in the application an injunction to stop the passage of the 9th Amendment Bill. You will recall however that though the court did not grant it - one of the Justices in particular, Mr. Justice Hayden said words to the effect that it doesn't matter whether you get that injunction or not because if the act is unconstitutional - you can come to the court and challenge it and he gave an example that if parliament, for instance, attempted to make legal slavery - obviously that is not something that could stand - and so it was our view that he was making the point that even though the government was attempting to bar the court from inquiring into the constitutionality and validity of the acquisition, that as he saw it, the court would still be able to do that."
Jules Vasquez
"Essentially you all are restrained from selling shares. BTL is no longer for sale at this time."
Lois Young, attorney for Government
"Well you know what you have to remember that the constitution says 51% remains in the government, so it's a very small amount of shares that can't be sold."
Jules Vasquez
"The constitution does not yet say that."
Lois Young, attorney for Government
"It will say that and the amendment to the constitution says that. 30% of the shares have already been sold. So the percentage that's left between what was taken and the 51% minus the 30% is not a lot of shares."
Jules Vasquez
"But in passing - one of the members of the panel, one of the judges pointed out that that constitutional amendment may be up-ended. It may be up-ended."
Lois Young, attorney for Government
"The panel did not say that."
Jules Vasquez
"He was making his comparison. He said that it could be, and that it's not impossible or unthinkable."
Lois Young, attorney for Government
"Actually what the court has done is to verify what the Prime Minister has been saying from the start that you can challenge constitutional amendments. That's what the court has said, the CCJ has said that and so all the naysayers who say no we can't, that is not true - you can challenge it."
Jules Vasquez
"May be challenged."
Lois Young, attorney for Government
"Yes because the CCJ has said so, that's the first thing. The second thing is that they have refused to stop the process of passage of the constitutional amendment. They refused that injunction. They will not interfere with the legislative process. So all in all, it's not a bad result."
Eamon Courtenay, Attorney for BCB
"The basis on which the court granted relief to us was that we satisfied them that they ought to exercise their discretion because they saw that there was a arguable case and that relief from the court of the Caribbean was necessary to protect the interests of the parties."
"Indeed as you saw this afternoon the court of its own motion decided that it was going to restrain the sale of shares of Belize Telemedia. Indeed the objections by my learned friends for the government - and it was two of them going one after the other whilst we sat quietly hearing them parry with the judges of the Caribbean Court of Justice - The Caribbean Court of Justice found that the sale of these sales should stop. It is signaling once again that perhaps the court believes that the way in which this is being done is unconstitutional, null and void. Very simply, you cannot in a democracy behave like a dictator and expect that respectful courts are going to a probate what you do - that is the message from the CCJ to the government of Belize and I am predicting that it is going to be message from the Supreme Court of Belize when we challenge the 2011 act and the 9th amendment."
Jules Vasquez
"How consequential is it that the judges have said that in fact the governments' action on June 24th - it did not need a coercive order because a government does not need to be coercive to obey its own laws?"
Lois Young, attorney for Government
"Well what Mr. Smith was seeking wasn't a coercive order. What Mr. Smith was seeking was for Dean Boyce who is not the majority shareholder of BTL to be given permission to go back in. He (Dean Boyce) had no locus standi to walk into BTL on the evening of the 24th of June. He is an owner of one share in Sunshine, he claims to represent the trustees that own 22% of other trust that supposed to own 22%, so what right did he have to walk in?"
Jules Vasquez
"Well I think that the head of the panel also says that behavior was not the best."
Lois Young, attorney for Government
"Remember what he said (the Judge) that that behavior of Dean Boyce was not the best."
Jules Vasquez
"But he also frowned upon that - two judges from the panel - the fact that the government demanded a coercive order when none is needed against a government."
Lois Young, attorney for Government
"No, he didn't say that none is needed. He said coercive orders are not usually required. But you have to remember that the previous owners of BTL required a coercive order against Mr. Prosser - when Mr. Prosser won his cases in the Supreme Court and the Court of Appeal. The same Dean Boyce who found it proper to walk into BTL on the evening sought a coercive and even when Judge Conteh gave the coercive order they did not allow Prosser in."
Courtenay and Smith have given the CCJ an undertaking to file an action challenging the re-acquisition of 2011 and the ninth Amendment to the constitution in the Belize Supreme Court by September fifth.
In the meantime, until that winds its way through the courts, Government is barred from selling any more shares in Telemedia. That injunction throws a serious wrench in the works for GOB because they have been in negotiation with an Argentinean Company to buy a substantial chunk of the company's shares.
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