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Download Our Latest Issue! Headliners COURTENAY COYE LLP Unconstitutional: Telemedia ATTORNEYS AT LAW Nationalisation Eight Amendment Breaches Basic Structure Cases In Focus The High Cost of Preventing Employees From Unionizing Norwich Pharmacal Order August 2012 Belize Sugar Cane Farmers Assn. Dismisses CEO Without Cause UNCONSTITUTIONAL: “EMBASSY” Mark Decision TELEMEDIA NATIONALISATION Freezing & Receivership Orders Faced with this unusual turn of events, Legislation In Focus the parties that had successfully challenged International Limited Liability the original nationalization were forced Companies Act, 2011 to return to Court again to challenge the The Evidence (Amendment) (No. 2) Act, 2012 - Making Prosecu- legislation that purported to validate the tions Easier re-nationalization. On the 11th June 2012 The Representaion of The People the Supreme Court declared the second (Amendment) Act, 2012 – Clean- compulsory acquisition by the Government ing of Voters List Deferred to be unconstitutional. This determination New Tax Measures by the Supreme Court was the second time that the nationalisation of Telemedia was General declared unconstitutional by a Belize Court Ownership of and Rights of in about one year. Access to Beachfront Property Back on the 24th June 2010, the Court of Video Link as a Means of Access Appeal declared the compulsory acquisition Strange Amendments to Justice by the Government of Belize of shares The Court of Appeal had declared that the The Rights and Duties of Receivers in Belize Telemedia Limited and certain Belize Telecommunications (Amendment) Act Managing and Selling Mortgaged security instruments held by British 2009 (“the 2009 Act”) to be unlawful, null and Property Caribbean Bank Limited to be “unlawful, null void. This was because sections 3(d) and 17 of and void.” The Government did not return the Belize Constitution provide protection to the property to the successful parties, nor property owners from arbitrary acquisition of “This did the Government appeal the decision to their property by the Government. In order determination the Caribbean Court of Justice. to lawfully acquire property the Government Instead, the Government went back can only do so pursuant to a law that satisfies by the Supreme to the National Assembly to try to all the criteria set out in section 17(1) of the Court was correct the legal situation and passed new Constitution. These criteria require the legislation purporting to re-acquire the acquisition law to include within it: the right to the second same property for a second time. On the property owners to have direct access to the time that the 4th July 2011, the National Assembly, both Court to establish their title to the property nationalisation the House of Representatives and the acquired; provisions to have the Supreme Court Senate, “with unusual speed” passed the determine whether the nationalization was of Telemedia Belize Telecommunications (Amendment) duly acquired for a public purpose; provisions was declared Act 2011 (“the 2011 Act ”). Consequent on to ensure that the compensation to be paid the amendments, on the 5th June 2011 the is reasonable and given within reasonable unconstitutional Minister of Public Utilities issued a Statutory time; and provisions to enforce the payment by a Belize Court Instrument by which he purported to of the compensation. Because the 2009 Act in about one once again compulsorily acquire the same did not comply strictly with these mandatory property, for the Government which constitutional requirements, it was declared year.” the Court of Appeal had ten days earlier “unlawful, null and void”. Once the Act itself declared unconstitutionally acquired. was unconstitutional, the knock on effect was Cont’d. on page 2 © Courtenay Coye LLP 2010 All rights reserved 2 Headliners that the taking was also unconstitutional. However, the Court Court confirmed that the effect of the Court of Appeal’s of Appeal also held that the purpose which the Government decision was that the 2009 Act was “dead”. Therefore, the stated to justify the acquisition; stabilization and improvement attempt by the National Assembly to amend it, in order in the telecommunications industry, reliable service at to cure the deficiencies identified by the Court of Appeal affordable rates, and a harmonious and non-contentious was completely ineffective. It followed that the Statutory environment was not supported by the evidence. The Court Instrument issued by the Minister to re-acquire the of Appeal found that the Government was actuated by malice property was also null and void since it was issued pursuant towards Lord Ashcroft and that it was unconstitutional to to a dead law. acquire private property to pursue a personal vendetta. The effect of this decision is that since the 25th August In the 2011 Act, the Government ignored the Court of 2009 the Government has been in unlawful control of Appeal’s decision which had declared certain provisions to Telemedia. Its acquisition of the British Caribbean Bank’s be constitutionally non-compliant, and therefore it struck property has been unlawful from the very beginning. down the entire Act. Instead of re-enacting the 2009 Act Despite the constitutional requirement for reasonable with amendments to take account of the Court of Appeal’s compensation to property owners within a reasonable decision, the Government proceed to purport to amend it time the Government has paid no compensation. as if it was still valid and in force. Government Remains in Control Re-acquiring pursuant to the 2011 Act Even though the Supreme Court declared that the The Statutory Instrument issued by the Minister of acquiring legislation is null and void, the Government Public Utilities in 2011 by which he purportedly re-acquired remains in control of Telemedia and continues to treat the property on behalf of the Government, was expressly BCB’s loan as having been lawfully acquired. This is based on the same section that had been declared void by because the Supreme Court declined to give the winners the Court of Appeal. The Minister sought to get around the consequential relief. declaration of nullity by declaring that the acquisition Order The Eighth Amendment to the Belize Constitution should be deemed to be in effect as from the 25th August added section 144 to the Constitution. Boyce and BCB 2009, the date when the original acquisition occurred. challenged this section, and the Supreme Court concluded The intention of the Government was clear. It was re- that most of it was unconstitutional. However, the Court acquiring the same property with effect from 2009. If the severed the unconstitutional part and left the following part 2011 Act was valid, it would have the effect of validating the intact: “From the commencement of the Belize Constitution actions during the period from August 2009 to June 2011 (Eighth Amendment) Act, 2011, the Government shall have during which period the Government’s acquisition was and maintain majority ownership and control of a public utility unlawful according to the Court of Appeal. The intention provider.” Since the Court found this portion of section 144 was to neatly cover this period. This was not achieved. to be constitutional it regarded itself as constrained from granting relief to Boyce and British Caribbean Bank Limited. Unconstitutional Again Accordingly the Court refused consequential relief. The Dean Boyce, as trustee of the Telemedia Employees Government has appealed the decision of Justice Legall. Trust and British Caribbean Bank Limited that had its Boyce and the British Caribbean Bank Limited have cross- security interest purportedly acquired by the Government appealed on the Judge’s interpretation of the remaining again, challenged the second acquisition. As noted above, part of section 144. The Court of Appeal has decided that the Supreme Court found in favour of the property owners it will expedite the hearing of the appeal – it is set to begin and declared, for the second time, that the attempt at re- the hearing on the 8th October 2012. nationalisation was unlawful, null and void. In the main, the EIGHTH AMENDMENT BREACHES BASIC STRUCTURE The Belize Constitution (Eighth Amendment) Bill (“the Eighth Amendment”) is perhaps the most controversial amendment to the Constitution ever proposed. It was introduced in the House of Representatives on the 22nd July 2011, and it was subject to widespread heated debate. Cont’d. on page 3 LLP COURTENAYATTORNEYS COYE AT LAW 3 The Bar Association of Belize went so far as to procure Validation of Nationalisation ? two opinions from leading international constitutional In addition to these far-reaching amendments, the Eighth law scholars. The amendment was introduced against the Amendment declared that the property acquired under the background of the decision of the Court of Appeal that the 2011 Acts (and the amendment to the Electricity Act which Government’s nationalisation of Belize Telemedia Limited was used to nationalize Belize Electricity Limited) “was duly and certain security interests of British Caribbean Bank carried out for a public purpose in accordance with the laws Limited was unlawful, null and void. The primary purpose of authorizing the acquisition of such property”. By this provision, the amendment was to make the re-nationalisation beyond the Government sought to put the acquisitions beyond legal challenge. question. It was designed to insulate the nationalisations The Eighth Amendment was unprecedented in from legal challenge of the property owners,
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