Test

COURTENAY COYE LLPA T T O R N E Y S A T L A W

© Courtenay Coye LLP 2011 All rights reserved

The Law Does Not Operatein a Vacuum

Telemedia NationalisationUnconstitutional

Democracy at Work - The Referendum

HEADLINERS

Issue 2 Volume 2 2011

Legislation In FocusNinth Amendment to the Belize Constitution Proposed

The Petroleum Act – Rights of Landowners

Indictable Procedure Act

Juries (Amendment) Act

Supreme Court of Judicature (Amendment) Act

Firearms (Amendment) Act

GeneralRetention of Data by Service Providers

Hon. Kenneth Benjamin, New Chief Justice of Belize

Hon. Justice Duke E. E. Pollard, Justice of Appeal

Cases In FocusRhett Fuller Extradition Saga Continues

Nationalisation of BEL

The Legality of Committal War-rants for Non-Payment of GST

Supreme Court Declares Placencia Marina Project Lawful

THE LAW DOES NOT OPERATE IN A VACUUM: THE ECONOMICS OF NATIONALISATION

The proposed 9th Constitutional Amendment (“the 9th Amendment”), whether it is legally or constitutionally valid or not, has to be looked at in the context of what are Belize’s socio-economic realities and where we believe Belize should be. The 9th Amendment, bluntly speaking, seeks to accomplish one primary objective. It seeks to entrench nationalisation of certain utilities, in particular, Telemedia and BEL. Concerned that such purported entrenchment may be the subject of a successful legal challenge having regard to the basic structure doctrine applied by the Supreme Court of Belize in Supreme Court Claim No. 445 of 2008 – Barry Bowen, et. al and the Attorney General of Belize, the legislature seeks to place such entrenchment beyond any and all legal challenge in the courts. In seeking to do so in such a broad and expansive manner, it wholly subverts constitutional supremacy and the separation of powers doctrine and purports to entrench parliamentary supremacy at the risk

of undermining the protection of our fundamental rights and freedoms.

But what of its primary objective – the entrenchment of the nationalisation of utilities? While nationalisation of utilities may be desirable from a nationalistic approach, or perhaps more pertinently from a xenophobic perspective, is this for the common good? Will nationalisation of utilities produce wealth for the people and nation of Belize? At its economic core, will it result in a more efficient allocation of scarce resources? In other words, how does it benefit the Belizean people?

No matter how you slice it, nationalisation is nothing more than the transfer of assets from private hands to Government hands in exchange for an equivalent liability. If the transfer of assets results in the private hands receiving anything less than reasonable compensation, fair value, from the Government, then the Government will have engaged, in the minimum, in unjust enrichment if not expropriation. It is assumed for the purposes of this article that the Government is not desirous of unjustly enriching itself or otherwise expropriating property at the cost and loss of the former private owners, in violation of fundamental property rights and destruction of investor confidence and to the detriment of the public interest.

If we assume that there is and will be no unjust enrichment or expropriation, then the acquisition in its own right, as a mere transfer of assets in exchange for an equivalent liability, from an accounting standpoint, does not yield any immediate

No matter how you slice it,

nationalisation is nothing more than the transfer

of assets from private hands to

Government hands in exchange for an equivalent liability.

2 Headliners


net gain on the balance sheet of either the former private owners or to the Government. In other words, nationalisation, in and of itself, does not create wealth for the Government because the Government has to pay fair value for the assets that it has acquired. This fair value already accounts for future expected profits as at the time of acquisition.

Now, this begs the question – Does the Government have the money to pay fair value for the assets it acquires by nationalisation? If it doesn’t, then it has to borrow the money or sell state assets. All indications are that the Government does not have the money in hand to pay. Even moreso, whereas the Government had been previously seeking to sell a portion of its equity interest to raise the funds, the 9th Amendment proposes to entrench the retention by Government of no less than 51% of the issued and outstanding paid up capital of the utilities. The Government must therefore out of its own coffers (or that of the SSB as implied under the 9th Amendment) find the funds to pay fair value for at least that 51% equity capital.

In light thereof, what is the cost of borrowing this money? According to the electricity and telecommunications nationalisation laws, the applicable interest rate accruing on monies owed by the Government for reasonable compensation on nationalisation shall be the interest rate on fixed deposits at commercial banks in Belize as at the time of acquisition. Utilizing Central Bank of Belize published statistics, as at the time of nationalisation of Telemedia on August 25th, 2009, the average fixed deposit rate was in the vicinity of 8.5% per annum. As at the time of nationalisation of BEL in June 2011, the average fixed deposit rate was in the vicinity of 6.5% per annum.

In the case of Telemedia, using Government’s rough valuation of $5.00 per share as an approximation of value as at the time of acquisition, almost $240 million in value was nationalised. Two years having passed already, the accrued interest alone thereon at the rate of 8.5% per annum is in excess of $40 million and continues to accrue further at a little less than $2 million per month or $65,000 per day.

A lot less information regarding Government’s valuation of BEL has been forthcoming. In light thereof, having regard to BEL’s book valuation of its paid-up share capital as at the end of December, 2010 as being approximately $285 million and that the former private owners held approximately 70%

of the total paid-up capital, then on acquisition, using book value, Government acquired approximately $200 million in value. At 6.5% per annum, interest accrues on a monthly basis on the $200 million value at the rate of a little over $1 million per month or $35,000 per day.

Whether we like it or not, whether we know it or not, nationalisation of Telemedia and BEL is costing the Government and ultimately the people of Belize, at minimum, approximately $3 million per month or $100,000 per day in addition to roughly $480 million ($440mn principal + $40mn interest accrued) now owing to the former private owners. In other words, nationalisation of just these two utilities has increased the Government’s national debt by almost fifty percent (50%) or half the notorious Belize Government Superbond at interest costs equal to or more expensive than the Superbond.

Does borrowing all this money and paying all this interest cost afford a more efficient allocation of scarce resources? Does nationalisation bring a net benefit to the Government and people of Belize? For there to be a net benefit to the Government and people of Belize, for there to be a more efficient allocation of scarce resources, the value gain of the shift in power and control from private hands to the Government must be more than $3 million per month or more than $35 million dollars per year. This is not the gross dividends that the Government gets from these utilities annually. Instead, it can only be the increase in profits and ultimately dividends caused by the shift in power and control over and above the future expected profits of the former

private owners as at the time of acquisition. If it is less, then the re-allocation of resources and the shift in power from private hands is less efficient and there is a resulting net loss to the Government and people of Belize.

In the case of Telemedia alone, the prospectus issued by the Government is quite telling. It indicates that net income rose $1 million in the year after it was nationalised and it further projects that income will increase an additional $17 million in the second year, largely as a result of the 5.5% reduction in the business tax rate charged on telecommunication services. Obviously, showing an increase in profit as a result of a reduction in taxes when the Government is the owner of the company is tantamount to robbing Peter to pay Paul. If in fact Telemedia is privatized then yes there is a net gain to the private shareholder at the

...nationalisation of Telemedia and

BEL is costing the Government

and ultimately the people of Belize,

at minimum, approximately $3

million per month or $100,000 per day.


3


COURT OF APPEAL DECLARES TELEMEDIA NATIONALISATION

UNCONSTITUTIONAL

direct cost of Government through its loss in tax revenues but there is no net gain whatsoever.

The expectation from the Government’s own financial projections as shown in the Telemedia prospectus is that the increase in profits after nationalisation of Telemedia will not surpass the running $20 million annual cost of nationalisation of Telemedia even if we do not downwardly adjust the projections for the reduction in tax revenues. In other words, in simpler terms, even the Government expects that nationalisation is and will be a net loss to the Government and people of Belize. Nationalisation, by Government’s own projections, is and will not be a more

efficient allocation of scarce resources. If this is the case, then what is the sense of seeking to entrench nationalisation when it is not in the public’s economic interest?

If the underlying rationale of the 9th Amendment to entrench nationalisation does not make economic sense and is not in the public interest, then why do it? Is it more important to have power and control even if it costs the people of Belize $480 million plus an extra $100,000 per day to do so? Would not this scarce money be better utilized for and invested in the people of Belize if it were applied directly to improving education and enabling job opportunities in Belize?

Successful Constitutional ChallengeOn the 25th August 2009, the Government of Belize nationalised Belize Telemedia Limited. By an Order of the Minister responsible for telecommunications, the Government acquired approximately 96 percent of the shares in the company. All these shares were said by the Government to be “Ashcroft related”. The Government also compulsorily acquired the security interest held by British Caribbean Bank Limited [BCB], under a debenture and related security agreements issued by Telemedia. BCB had advanced substantial sums to Telemedia, in excess of US$22.5 million, and held a mortgage over Telemedia’s assets.

When the shares were taken, the Government also removed the existing Board of Directors and appointed an interim Board to manage the Company. The interim Board consisted primarily of public officers who were joined by a few selected members from the private sector.

Dean Boyce, as trustee of the Employees Trust, and BCB both launched challenges to the legality of the

nationalisation. As previously reported, the Supreme Court found the nationalisation to be constitutional. However, on the 24th June 2011 the Court of Appeal handed down its decision and declared the nationalisation to be “unlawful, null and void.”

Section 17 of the Constitution allows for compulsory acquisition of private property by the Government. Such nationalisation can only be done pursuant to a law that provides for the payment of reasonable compensation within a reasonable time to the property owner. The over-riding criteria which must be present is that property can only be taken to further a compelling public purpose. If there is no legitimate public purpose, then the Government cannot compulsorily acquire private property even if it is prepared to pay compensation.

The Government stated that the reason for the nationalisation was for: “the stabilisation and improvement of the telecommunications industry and the provision of reliable telecommunications services to the public at affordable prices

4 Headliners


in a harmonious and non-contentious environment”. The Court of Appeal rigorously reviewed the evidence lodged by the Government in support of these objectives and found the evidence wanting. Indeed, it was shown that there was no telecoms instability, the industry was improving, prices were falling and that the court cases relied on by the Government to support its argument that there was a disharmonious environment were from several years before the nationalisation. The Court of Appeal found that this evidence had no rational connection to the stated public purpose. The shares and the security interests acquired in the nationalisation were not duly taken for a public purpose. The nationalisation was therefore unlawful and unconstitutional.

The Court of Appeal also found that Government acted disproportionately, arbitrarily and in breach of the formal requirements set out in section 17 of the Constitution. The only ground on which the Court did not find in favour of the BCB and Boyce was on discrimination.

Post-Judgment Drama

Immediately after the decision of the Court of Appeal was handed down the Government and the Government appointed Directors accepted the effect of the Court’s decision. Management left the Telemedia compound and the Government stated that there was no point in physically resisting the resumption of management by the previous directors. This posture was short-lived.

After a few hours after relinquishing control of the company the Government displaced the previous directors and resumed management of the Company. Surprisingly, the Government took the position that unless a court Order was issued ordering the directors to leave the premises, they would remain in control of Telemedia. Police guarded the Company’s compound preventing entry by the previous directors.

An application was filed in the Court of Appeal asking it to resume its hearing in order to issue the appropriate orders so that the declaration it had issued would be effective in the face of the Government’s defiance of the Court’s decision. The Court did not reconvene. This

state of illegality continued until 4th July 2011, ostensibly, when the National Assembly passed new nationalisation legislation and the Minister again issued an order re-nationalising the same property which had been found to be unlawfully taken.

The new law has given a new public purpose and has attempted to ‘fix’ some of the formal requirements required by section 17 of the Constitution that had not been complied with in the 2009 law.

Two Related Developments

On the 22nd July 2009 the Government tabled the Belize Constitution (Ninth) Amendment Bill in the House of Representatives. Among other things, this Bill seeks to declare that the second Telemedia nationalisation (and the nationalisation of the Belize Electricity Limited) was “duly carried out for a public purpose in accordance with the laws authorising the acquisition of such property”. And goes further to prevent any challenge to the 2011 Act and 2011 Order by ousting the jurisdiction of the courts to “enquire into the constitutionality, legality or validity” of the nationalisation. This Bill is currently the subject of heated public consultations. The Government has announced some changes to the Bill, but the final form of the Bill is still not known.

On the 16th August 2011, BCB (and Dean Boyce) applied to the Caribbean Court of Justice for special leave to appeal against the decision of the Court of Appeal not to reconvene and to issue consequential relief to address the Government’s defiance of its judgment. After hearing the parties, the CCJ concluded that the case was sufficiently urgent to warrant it being considered during the legal vacation, and it also gave special leave to the parties to bring the appeals. These appeals are now in process and are expected to be heard by the CCJ in Trinidad & Tobago in the coming weeks.

...the Government took the position that unless a court Order was

issued ordering the directors to leave the premises, they would remain in control of Telemedia. Police guarded the Company’s

compound preventing entry by the previous directors.

The shares and the security interests acquired in the

nationalisation were not duly taken for a public purpose. The nationalisation was therefore

unlawful and unconstitutional.


5


The Referendum Act enables voters to trigger a process that can lead to the holding of a valid referendum. The circumstances in which a referendum can be activated are as follows:

(1) By the National Assembly on an issue of Sufficient National Importance: This occurs where the National Assembly passes a resolution declaring that a particular issue is of sufficient national importance that it should be submitted to the electors for their views.

(2) By 10% of Registered Electors: This occurs where ten percent (10%) of registered voters present a petition that an issue is of sufficient public importance be put to a referendum.

(3) By a request of the Prime Minister: This arises where any law provides for the holding of a referendum on any specific issue or matter.

(4) The settlement of the Belize - Guatemala Dispute: A proposed settlement with the Republic of Guatemala for resolving the Belize - Guatemala dispute would automatically prompt a referendum.

Petition by Ten percent (10%) Electors:Where a referendum is commenced by a petition of 10% of the registered electors, such petition must contain the full name of each elector, his date of birth, his place of residence, the electoral division in which he is registered and such other information as the Governor General may prescribe through regulations under the Referendum Act. Once the Governor General receives the petition he is required by law to immediately refer the petition to the Chief Elections Officer so that the said officer may verify the signatures of the petitioners and so that he may certify that at least ten percent of the registered electors in the entire country have in fact appended their signatures to the petition. Of note is that a referendum may also be held in a specific district or area of Belize, but in such a case, the petition must be supported by twenty five percent of the registered electors in the district or area.

Once the Chief Elections Officer receives the petition from the Governor General, he must proceed expeditiously in the verification process and is mandated by law to return the petition to the Governor General as soon as practicable but no later than two months from the date of receipt of the petition. The Chief Elections Officer must also send to the Governor General a certificate as to whether or not the petition has been duly signed by the requisite number of

electors. If it is found that a person forges a signature on a petition or his signature appears more than once, that person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one thousand dollars, or to imprisonment for a term not exceeding one year.

Issue of Writ of Referendum:

Within thirty (30) days of the receipt by the Governor General of either (1) the resolution by the National Assembly declaring the necessity for a referendum, or (2) the Certificate from the Chief Elections Officer that the petition has been signed by the requisite number of voters (10% or 25% as the case may be), or (3) a request from the Prime Minister regarding the legal provision which stipulates a referendum or in respect of the Belize - Guatemala dispute, the Governor General shall issue a Writ of Referendum (similar to a Writ of Election) to the returning officers of the electoral divisions of Belize (or of the particular district). The day named in the Writ for the holding of a referendum shall not be less than thirty days after the issue of the Writ. Once the Writ is received, each returning officer shall proceed to hold the referendum in accordance with the Referendum Act and the directions of the Elections and Boundaries Commission. Registered electors qualified to vote under the Representation of People Act at the date of holding the referendum are the only persons qualified to vote in a referendum.

Ultimately, no referendum is valid unless sixty percent of the registered electors in the entire country (or the particular district as the case may be) have cast their votes. The issue submitted to referendum shall be decided by a simple majority of the 60% or registered voters (or more) votes cast. The Chief Elections Officer shall be responsible for issuing a certificate stating the results of the referendum.

The purpose of the Referendum Act is to provide a mechanism for direct participation of the electorate in matters of sufficient national importance. So far two referendums have been held: on the creation of Belmopan as a city, and on an elected Senate.

DEMOCRACY AT WORK - THE REFERENDUM

The purpose of the Referendum Act is to provide a mechanism for

direct participation of the electorate in matters of sufficient national

importance.

6 Cases In Focus


The much anticipated decision of the Privy Council in the appeal launched by Belizean Rhett Fuller was handed down on the 9th August 2011. The Privy Council dismissed Fuller’s appeal. This dismissal had the effect of simultaneously ending one stage in the extradition process and the commencement of yet another.

In 1999, the then Chief Magistrate Herbert Lord, ordered Fuller to be incarcerated in prison to await a decision of the Minister of Foreign Affairs as to whether he should be surrendered to the United States of America. However, under the Extradition Act (1870), Fuller was entitled to apply to the Supreme Court to determine the lawfulness of his detention, before the Minister could take such a decision. Fuller did apply to the Supreme Court and Chief Justice Conteh found that his detention to await the Minister’s decision was lawful. This was in 2002.

Fuller immediately lodged an appeal against this decision. The appeal was heard in two separate sessions of the Court of Appeal: October 2008 and March 2009. On the 19th June 2009 the Court of Appeal dismissed the appeal. Hence Fuller’s appeal to the Privy Council.

In essence, Fuller’s appeal challenged the decision of both the Supreme Court and the Court of Appeal that the Supreme Court had no jurisdiction to consider whether the request for his extradition was an abuse of process. Both Courts had held that this issue was to be considered by the Minister of Foreign Affairs, and not the Courts. The Privy Council disagreed. In its advice is stated: “53. The abuse of process argument goes to the legality of the extradition proceedings. Abuse of process is a paradigm example of a matter that is for the court and not for the executive. For these reasons

the Board has concluded that the appellant has made out his case that the Supreme Court had jurisdiction to consider the issue of abuse of process.” However, the Privy Council went on to consider whether, on the facts, the detention of Fuller was unlawful as being an abuse of process. The Privy Council concluded that Fuller’s detention pending the request for extradition was not an abuse of process. This brought to a close the chapter as to the legality of the request for Fuller’s extradition by the United States of America.

Whether Fuller is actually surrendered to the US authorities is a decision to be made by the Minister of Foreign Affairs. This is an independent decision to be made by the Minister based on representations made to him by Fuller and any other interested party. This process is now ongoing.

On the 7th and 9th September 2011, the Minister received written and oral submissions made on behalf of Fuller. These submissions were on whether it would be unjust, oppressive or wrong to surrender Fuller to the United States of America. Fuller presented a detailed affidavit to the Minister chronicling the relevant facts in support of his contention that his surrender by the Minister would be wrong, unjust and oppressive. He also made comprehensive written and oral legal submissions to the Minister. These representations supported the petition of Fuller that he should not be surrendered to the Americans.

On the 20th September 2011, the Minister rejected Fuller’s petition and decided that he would surrender Fuller to the authorities of the United States of America. Attorneys acting for Fuller had anticipated this eventuality and had obtained an injunction to stop the Minister from surrendering Fuller whilst they studied the reasons given by the Minister. On Fuller’s instructions judicial review proceedings have been launched. Justice Awich has now given Fuller permission to apply for judicial review to quash the decision of the Minister.

Fuller continues to be represented, pro bono, by extradition experts Edward Fitzgerald QC and Ben Silverstone of Doughty Street Chambers, London, and Eamon Courtenay SC. Recently joining the team are Denys Barrow SC and Naima Barrow, whilst Angeline Welsh of Allen & Overy in London continues as his solicitor.

RHETT FULLER EXTRADITION SAGA CONTINUES

Abuse of process is a paradigm example of a matter that is for the

court and not for the executive.

7


NATIONALISATION OF BELIZE ELECTRICITY LIMITED

On 20 June 2011 the Government of Belize nationalised Belize Electricity Limited (“BEL”), the major supplier of electricity to the Belizean public. The nationalisation was achieved, not by compulsory acquisition of all shares in BEL, but rather, by the acquisition of 70% of the shares in BEL which formerly belonged to the Canadian-based Fortis Group of Companies. In this regard the nationalisation of BEL is similar to the nationalisation of Belize Telemedia Limited (“Telemedia”) in August 2009 and the re-nationalisation in July 2011 where the Government compulsorily acquired only the shares of companies it believed to be affiliated with Lord Michael Ashcroft. In both nationalisations, the shares of Belizeans were left intact.

While the Prime Minister has admitted that the nationalisation of Telemedia was a deliberate attempt to put control of telecommunications beyond the reach of Lord Ashcroft, he has asserted there is no dispute between the Government and Fortis. When presenting the Bill in the National Assembly, the reason the Prime Minister gave for nationalising BEL was to prevent Belize from being plunged into rolling blackouts.

The start of problems for BEL

In 2008, the Government introduced legislation that changed the methodology by which electricity rates are determined. Based on expert advice, BEL concluded that the implementation of the new methodology would have resulted in a rate decrease, while BEL needed a rate increase to sustain its operations. In order to prevent the implementation of the new methodology which would have dire financial consequences for BEL, proceedings were initiated by BEL in the Supreme Court challenging the validity of the new methodology, and in separate proceedings, sought and obtained an injunction restraining the implementation of the new methodology. The rate

review proceedings scheduled for 2008 were therefore not conducted and BEL’s rate has remained at $0.44 per kwh since 2008.

BEL’s financial woes

BEL does not generate its own electricity. It purchases electricity from several sources including Belize Electric Company Ltd. (“BECOL”), Belize Co-Generation Energy Limited (“BELCOGEN”), Hydro-Maya and Comision Federal de Electricidad (“CFE”) of Mexico for distribution to the Belizean public. The cost of electricity from CFE is considerably higher than the cost of electricity from BECOL. However, BECOL is a hydro-electric company and is only at optimal output during the rainy season. BEL therefore purchases substantial amounts of its power from CFE, particularly during the dry season.

While the cost of power from CFE has increased steadily since 2008, BEL has been unable to increase its rates. In consequence, the cost to BEL of purchasing and distributing power, meeting its operational expenses and investing in capital improvements exceeded the $0.44 per kwh which was being charged to Belizean consumers. In consequence, BEL’s financial resources were eroded between 2008 and 2011 and it experienced difficulties in meeting its obligations to its major creditors and power suppliers, including CFE.

During the dry season when BECOL is unable to generate sufficient power, BEL relies on a $5 million dollar Letter of Credit from CFE guaranteed by the Government of Belize to meet the cost of purchasing power from CFE. In early 2011, BEL was about to exceed that Letter of Credit and required an increase, or other government assistance, to take it through to the end of June when the rains were scheduled to arrive and it would be able to purchase cheaper power from BECOL. Without some assistance, BEL would have had to reduce the electricity purchased from CFE by scheduling blackouts countrywide on rotation.

While the Government refused to increase the Letter of Credit, it provided assistance to BEL by pre-paying its electricity bill in the month of June. The pre-payment of the Government’s electricity bill was sufficient to allow BEL to purchase power from CFE through to the end of June when the rains were scheduled to arrive. Once the rains arrived, BEL would be able to purchase power from BECOL at a fraction of the cost it purchased power from CFE and it would be placed in a position to meet its expenses as they arose.

8 Cases In Focus


In a previous article entitled “Court Rules Actions of Commissioner of Income Tax Unreasonable” published in Lex Focus, Issue 1, Volume 3, 2011, we reported on a decision in which the Supreme Court granted a declaration, inter alia, that the Magistrate erred in law and acted ultra vires the Income and Business Tax Act (the Act) in making an order that a taxpayer should pay taxes, admittedly due, “by 29th October, 2010 “in default committal”.

The decision of the Court arose out of a claim instituted by the taxpayer against the Commissioner of Income Tax (the Commissioner) and the Magistrate. The taxpayer had no income and no assets to meet the tax demanded by the Commissioner. Nevertheless, the Commissioner demanded that the taxpayer settle the outstanding business tax balance in the sum of BZ$1,170,567.68. The taxpayer acknowledged that it was prepared to accept liability for the payment of the taxes in excess of $1 million, but informed the Commissioner that it had been divested of both its sole income stream as well as its sole asset and that it had a zero balance in its bank account having not received its expected income and having used its available funds to pay off its existing loans.

The Commissioner therefore knew that the taxpayer was unable to pay the tax liability.

Despite the inability to pay the tax liability and its request that its tax liability be set off against the amounts

owed to it by Government, the Commissioner caused judgment summonses to be issued against the taxpayer in respect of the tax assessments. At the judgment summons hearing, despite being informed by the company’s legal representative of its inability to pay, the Magistrate ordered payment of the entire sum and committal in default of payment even though there was no evidence before the Magistrate to show that the taxpayer was able to pay. The Magistrate also did not conduct a hearing as to the taxpayer’s means to pay.

In reviewing the Magistrate’s decision, the Supreme Court ruled that the Magistrate’s order that the entire sum be paid, and in default committal, was based on an error of law and ultra vires the Act. The Court found that it was not proved to the satisfaction of the Magistrate, as required by the Act, that the taxpayer had the means to pay the sum ordered. Therefore the committal order made by the Magistrate could not stand as the order was made in contravention of section 66(2) of the Act which requires proof of the taxpayers ability to pay and a wilful refusal to pay the tax, before an order for committal can be made.

Section 66(2) of the Act is replicated in the General Sales Tax Act (the GST Act) at section 64(2). In issuing warrants of committal under the GST Act the Magistrate is therefore likewise under a legal obligation to satisfy himself that the taxpayer “has or has had since the date of

THE LEGALITY OF COMMITTAL WARRANTS FOR NON-PAYMENT OF GST

In the circumstances, it is doubtful why the Government considered it necessary to nationalise BEL on 20 June 2011, just days before BEL would have been able to purchase cheaper power from BECOL. Furthermore, with the pre-payment of its electricity bills, the Government had ensured that BEL could have purchased power from CFE through to the end of June, and rolling blackouts were therefore no longer likely. Despite what the Prime Minister asserted at the time he presented the Bill to nationalise BEL, it appears that it was not necessary to nationalise BEL and the measure of nationalisation was unnecessary.

Entrenchment of Government ownership of BEL in the Constitution

Since the nationalisation of BEL, the Government of Belize has tabled the Belize Constitution (Ninth Amendment) Bill which proposes to entrench the Government ownership of majority interest in public utilities, including BEL. The Government appears to have adopted a new national policy that no foreign entity should control public utilities in Belize. The Ninth Amendment is clearly intended to defeat any Court challenge to the constitutionality of Government’s acquisition of Fortis’s shares in BEL since the Constitution, Belize’s supreme law, would require the Government to own no less than 51% of the shares in BEL.

The Fortis Group of Companies has retained Courtenay Coye LLP to advise and represent it in the face of nationalisation and the proposed amendment to the Constitution.

The Government appears to have adopted a new national policy that

no foreign entity should control public utilities in Belize.

9


...the authorities establish that

the objective of committal for the non-payment of tax is to compel payment, not to punish for non-

payment...

the order the means to pay” the tax in respect of which he has defaulted, but “has refused or neglected, or refuses or neglects, to pay it”.

It is therefore clear that s. 64(2) contemplates that the Magistrate shall not order committal to prison for default in payment unless the Commissioner is first able to prove to the Magistrate’s satisfaction that the taxpayer either has or has had since the date of the Magistrate’s order, the means to pay the sum in respect of which default was made and additionally, that the taxpayer has refused or neglected to pay the sum ordered to be paid. In determining whether the taxpayer has or has had the means to pay the tax, the Magistrate is at liberty to request proof. For the purposes of proving means, the taxpayer and any witnesses may be summoned before the Magistrate and the debtor and witnesses may be examined on oath.

In line with the Court’s decision, the authorities establish that the objective of committal for the non-payment of tax is to compel payment, not to punish for non-payment: See R v

Wirral Justices ex parte Margaret Allen [2000] QBD at 5. This is because if the debtor has no money and no prospects of obtaining any funds, imprisonment will only punish and will thwart the true purpose which is to collect the tax owed. It is also the case that committal to prison for

tax is a remedy of last resort: See R v Hendon Magistrates Court, ex p Hall [2001] EWHC Admin 955 at paras. 5 to 7.

This approach seems especially important since under section 64(5) of the GST Act, imprisonment does not operate to extinguish or satisfy the debt. The debt is still owed after release from prison. Ultimately, the decision of a magistrate to issue a warrant of committal is not to be arbitrarily or automatically exercised, but rather must be carried out in accordance with the pre-conditions stipulated in the GST Act for the issuance of a warrant, namely the Magistrate must satisfy himself that (1) the tax debtor has or has had the means to pay the taxes

owed as ordered and (2) the tax debtor has refused or neglected to pay the sums ordered to be paid.

SUPREME COURT DECLARES PLACENCIA MARINA PROJECT LAWFUL

On 29 July, 2010 the Placencia Citizens for Sustainable Development (PCSD) instituted a claim against the Department of the Environment (DOE) as Defendant and the Placencia Marina Limited (PML) as Interested Party for Declarations relating to the decision of the DOE to approve the Environmental Impact Assessment (the EIA) and the Environmental Compliance Plan (ECP) for PML. On 4 October, 2011, Mr. Justice Legall of the Supreme Court ruled in favour of the DOE and PML and declared the decision of the DOE to approve the EIA and the ECP for the Marina Project conducted by the PML to be lawful.

The Marina Project is part of a tourism development project that has six major interdependent components which include the Placencia Marina, the Copal Resort and Casino, Rendezvouz Island, the Placencia International Airport, the Placencia Residences and the Panther golf course. Investments in the Marina Project alone amount to approximately US$4.4 million soft costs which includes

preparatory works for the various projects. A halt to the Marina Project which is an integral part of the six tourism development projects would have likely led to substantial lay-off of Belizean employees and the suspension of business dealings with various businesses which are retained by the projects to supply materials, goods and services to the project’s employees and the projects themselves. Suspension or revocation of permits to these projects would have also likely resulted in debilitating failure and adverse consequences for the tourism development project with losses exceeding US$140 million already invested. The loss of the Marina Project would have also likely affected government revenue in terms of collections of General Sales Tax, Import Duties, Income Tax and Belize Tourist Board taxes projected at US$100 million over a three to four year period.

The PCSD sought to impugn the validity of the EIA and the ECP for the Placencia Marina project by asserting that the DOE failed to exercise its statutory powers in

10


Legislation

NINTH AMENDMENT TO THE BELIZE CONSTITUTION PROPOSED

On the 20th July 2011, the Government introduced a Bill in the House of Representatives – Belize Constitution (Ninth Amendment) Bill – which proposes far-reaching changes to the Constitution. Since its introduction the Bill has been the subject of widespread discussion and analysis. What form it will ultimately take when passed is still uncertain as so far the Government has already announced changes to the Bill as a result of public criticism. This Article is based on the proposed amendment not as originally presented, but as altered by the Government during the consultation process – specifically those changes announced after consultation with the Churches.The provisions which the Government has withdrawn are clauses which proposed ouster clauses – that is, clauses which sought to prevent the Courts from entertaining challenges to certain new laws.

Proposed Amendment to Section 2

Like all written Constitutions in the Commonwealth Caribbean, the Constitution is the supreme law of Belize. Section 2 states: “This Constitution is the supreme law of Belize and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.” The Government proposes to amend this section by adding the following: “(2) The words “other law” occurring in subsection (1) above do not include a law to alter any of the provisions of this Constitution which is passed by the National Assembly in conformity with section 69 of the Constitution.” Critics of the proposed amendment contend that this new section would radically alter the constitutional architecture of Belize. It is argued that the effect of the proposed amendment would be to replace Constitutional supremacy with parliamentary supremacy.

Proposed Amendment to Section 69

Section 69 of the Constitution sets out the procedure to be adopted when amending the Constitution. The main requirements are: three-quarters majority for major amendments; two-thirds majority for all other amendments; and the ninety day waiting period between

accordance with the Environmental Protection Act (the Act) and the Environmental Impact Assessment Regulations 1995 (the Regulations). PCSD sought declarations that the DOE acted unlawfully and ultra vires the Act and Regulations in approving the EIA and the ECP and an order that the ECP be declared illegal, null and void.

In particular, PCSD alleged that the DOE in reviewing and approving the EIA and the ECP for the Marina Project

had failed to request and consider bathymetric data for the project site, oceanographic data, data regarding the water needs and resources of the area surrounding the project site, project designs, and data regarding the land based components of the Marina Project. PCSD also asserted that the DOE and PML had failed to conduct a public consultation in respect of the EIA prior to its approval.

Mr. Justice Legall found that on the evidence PCSD had failed to prove that the DOE and PML acted contrary to the Act and the Regulations or that the EIA and the ECP do not satisfy the requirements of the applicable laws. His Lordship therefore dismissed the entirety of the claim against DOE and PML.

The Placencia Marina was represented by Eamon H. Courtenay SC and Pricilla J. Banner of Courtenay Coye LLP.

Suspension or revocation of permits to these projects would have also

likely resulted in...losses exceeding US$140 million already invested.

It is argued that the effect of the proposed amendment would be to replace Constitutional supremacy

with parliamentary supremacy.

11


the first and second readings of major amendment Bill. The Ninth Amendment Bill proposes to add the following clause: “(9) For the removal of doubts, it is hereby declared that the provisions of this section are all-inclusive and exhaustive and there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution; and a law passed by the National Assembly to alter any of the provisions of this Constitution which is passed in conformity with this section shall not be open to challenge in any court of law on any ground whatsoever.”

This clause proposes two new aspects. First, it declares that other than what appears in section 69, “there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution”. Second, the new section would establish when an amendment is passed in conformity with section 69, it “shall not be open to challenge in any court of law on any ground whatsoever.” Properly understood, this new subsection means that any amendment passed in conformity with section 69 is not open to challenge in court on any ground whatsoever.

The amendments to section 2 and section 69, when read together, clearly establish the National Assembly as supreme when it comes to amending the Constitution. If passed as currently drafted these two amendments will have far-reaching implications for new laws and the rights of persons in the future. In so far as constitutional laws are concerned the Courts role will be substantially curtailed.

Proposed Addition of Part XIII

The broad objective of this new Part to the Constitution is to vest control of public utilities in the Government and to shield such vesting from legal challenges in Court. The proposals should be seen against the vesting of the majority ownership of approximately 96% of the issued shares in Belize Telemedia Limited in the Government in August 2009, which was declared “unlawful, null and void” by the Belize Court of Appeal in June 2011.

The Bill would, when passed, establish that Government must at all times maintain “majority ownership and control” of utilities. So far, Telemedia, Belize Electricity Limited [BEL] and Belize Water Services Limited [BWSL] would be regarded as utilities. The proposed Bill would vest the property acquired from Telemedia and BEL absolutely in the Government free from all incumbrances. Strong provisions are made to ensure that Government holdings, which are defined to include any holding held by the Belize Social Security Board, cannot fall below the threshold needed to maintain effective majority ownership and control.

The next part of the proposal seeks to immunize from legal scrutiny and challenge the acquisition by the

Government of the majority shares in Telemedia and BEL. Although the Court of Appeal declared the 2009 nationalisation of Telemedia as unconstitutional, the Government passed new legislation and re-acquired the same property on the 4th July 2011. On the 20th June 2011, the Government compulsorily reacquired approximately 74% of the shares in BEL. The Ninth Amendment declares that the acquisition of the shares and property in Telemedia and BEL were duly carried out for a public purpose in accordance with the applicable laws, and that “no court shall enquire into the constitutionality, legality or validity of the said acquisitions notwithstanding anything to the contrary contained in section 17, section 20 or any other provision of this Constitution or any other law or rule of practice.” In order to try to make impregnable the immunity from challenge, the Ninth Amendment goes on to provide that: “the bar on the jurisdiction of the court contained in subsection (1) above is absolute and no court shall assume jurisdiction on any ground whatsoever including, without limitation, any alleged ground of lack of jurisdiction in the persons making the said Acquisition Orders, or any ground alleging breach of the rules of natural justice.” Clearly, these are very strong provisions that seek to effectively acquire the property and to prevent the former property owners from going to Court to challenge the takings.

The last clause of the Ninth Amendment Bill, as currently worded states: “Nothing in the foregoing provisions of this section shall prejudice the right of any person claiming an interest in or right over the property acquired under the said Acquisition Orders to receive reasonable compensation within a reasonable time in accordance with the law authorising the acquisition of such property.” The Ninth Amendment seeks therefore, consistent with Government policy, to restrict the rights of property owners to compensation pursuant to the legislation that was used to acquire the property from the former owners of Telemedia and BEL. This assumes that those laws are in conformity with the Constitution.Whilst much of the public discourse surrounding the Ninth Amendment has been quite passionate and political, it is expected that strong legal challenges will be mounted to the legislation. Indeed, the CCJ sought and received an undertaking from Counsel for British Caribbean Bank and Dean Boyce that their clients will change the legislation.

The broad objective of this new Part to the Constitution is to vest control of public utilities in the Government

and to shield such vesting from legal challenges in Court.

12


Legislation

...where a landowner and a contractor are able to agree on the terms of entry by the

contractor on the land, there is no need for Government

intervention.

The Government of Belize has entered into a number of Production Sharing Agreements (‘PSA’s’) with different companies (referred to as contractors) pursuant to the provisions of the Petroleum Act (the Act), by virtue of which each contractor is authorized to carry out petroleum explorations as defined by the Act, within a designated area defined by the relevant PSA. While by virtue of Section 3 of the Act, “…the entire property in and control over all petroleum and accompanying substances, in whatever physical state located on or under the territory of Belize….are vested exclusively in the Government of Belize…”, and while the Government may by contract “…provide for a contractor to acquire property in, title to or control over any petroleum within Belize…”, the owner of the land the subject of a PSA retains certain rights in relation to the conduct of petroleum operations on and under such land.

Section 26(1)(b) of the Act provides that a contractor shall not exercise any of its rights under a petroleum contract except with the written consent of the owner or lawful occupier of the land (save in the case of land set apart for a public purpose, land dedicated as a place of burial or which has religious significance, and other land already subject to some public use where the consent of a local authority may be required). Section 26(2) of the Act specifically provides that any consent may be subject to such conditions as specified in the instrument of consent.

Where consent is withheld by a landowner, the Minister is required to hear both the owner and the contractor and if he is satisfied that consent has been unreasonably withheld, he may direct the owner to allow the petroleum operations to continue on such terms as he determines. Therefore, where a landowner and a contractor are able to

agree on the terms of entry by the contractor on the land, there is no need for Government intervention.

The contractor is given authority by the Act to erect such buildings, machinery or plant, acquire such easements and rights of way, use water, construct bridges, roads and facilities as necessary to enable it to carry out the petroleum operations, but the right to carry out such activities must be exercised reasonably so as not to affect adversely the interests of any owner or lawful occupier, and only to the extent necessary for the operations. Such rights terminate when the contract to which they relate expires or is terminated.

Section 27(6) of the Act provides that a contractor is liable to pay the owner or lawful occupier fair and reasonable compensation in respect of any disturbance or damage to the rights of such owner or occupier, or to crops, trees, buildings, stock, works or other property. Such compensation shall be determined by agreement between the parties, or if they fail to agree, the appropriate sum will be determined in accordance with the provisions of the Arbitration Act of Belize. Since the parties are free to determine the conditions subject to which the landowner’s consent is given, it is open to them to agree beforehand, on a figure which they estimate is sufficient to compensate the owner. It is important that the freedom of contract between the owner and the contractor in these matters is not fettered in any way. There have been some instances where the Department of Geology and Petroleum has insisted on approving the terms of the agreement between owner and contractor prior to entry into such agreement. This is not what the Act prescribes.

Finally, by virtue of Section 31(4) of the Act, the owner of private land beneath which petroleum is found, is entitled to receive from the Government of Belize, 5% of royalty to which the Government is entitled in respect of petroleum recovered from the said land.

THE PETROLEUM ACT – RIGHTS OF LANDOWNERS

13


The primary objective of the Indictable Procedure (Amendment) Act No. 5 of 2011 is to make provision for trial without a jury in certain criminal cases. The amendment adds a new section 65D which provides that where a trial is conducted without a jury, the judge conducting the trial shall have all the power, authority and jurisdiction which he would have had if the trial had been conducted with a jury including the power to determine any question and to make any finding which a jury would have had to determine if it were present. The amendment also provides in section 65E an umbrella provision which provides that a reference in the laws of Belize to a jury, its verdict or finding shall be read (in relation to a trial conducted without a jury) as a reference to a judge, his verdict or finding. Any laws which are predicated on a trial with a jury shall also be read to include such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with a trial judge sitting along without a jury. The amendment is prospective in nature as it applies to all cases where an accused person is committed for trial after the coming into force of the amendment.

Importantly, the amendment provides that in the case of (a) murder, (b) attempt to murder, (c) abetment of murder, and (d) conspiracy to commit murder (notwithstanding any provision to the contrary contained in the Indictable

Procedure Act, the Criminal Code, the Juries Act or any other law), persons committed for trial or indicted (either alone or jointly) shall be tried before a judge of the court sitting alone without a jury.

Even in cases not falling within (a) to (d) above, the prosecution is at liberty to apply to a judge for the trial to be conducted without a jury on the grounds set out in section 65B(2). The grounds include: danger of jury tampering or intimidation of jurors or witnesses; fear or unwillingness of material witnesses to give evidence; the case concerns a criminal gang element; the complexity and length of the trial would be so burdensome on the jury that the interests of justice require trial without jury.

Similarly, a person charged with an offence not listed in (a) to (d) may apply to the judge for trial without a jury based on the likelihood of an unfair trial due to pre-trial publicity. All persons charged jointly must agree to trial without jury in order for a judge to exercise his discretion on an application by the accused. Further, no appeal lies against an order of the judge granting or refusing an application for a trial to be conducted without a jury. Where a trial is conducted without a jury, the judge must give a written decision stating the reasons for conviction or acquittal. An appeal also lies to the Court of Appeal at the instance of both the accused person and the prosecution from the decision of the judge.

INDICTABLE PROCEDURE ACT

14


Legislation

The Firearms (Amendment) Act No. 9 of 2011 makes provision for the registration of bullet proof vests and provides that a person who intends to own or purchase a bullet proof vest shall apply to the Commissioner of Police to register that bullet proof vest at least 10 days before the date of purchasing or owning. The application form (which is included in the amendment) shall be accompanied with a non-refundable fee of $100.00, police record, and

identification documentation. Persons prohibited from being registered as the owner of a bullet proof vest are (1) persons under 21 years of age, (2) persons convicted of a crime of violence within 3 years immediately preceding his application unless the person satisfies the Commissioner that a bullet proof vest is required for his employment or for some other special reason; (3) persons who are unable to show reasonable grounds for the possession of a bullet

FIREARMS (AMENDMENT) ACT

The main purpose of the Supreme Court of Judicature (Amendment) Act No. 7 of 2011 is to provide that an appeal against the decision of a magistrate shall not operate as an automatic stay of execution of the decision under appeal. The amendment specifically amends section 112 of the principal Act which previously made provision for the execution of the decision under appeal from the inferior court to be suspended until determination or abandonment of the appeal once the appellant had given notice of and security for the appeal. The repealed section 112 also provided that if the appellant was in custody, he shall be released on the order of the magistrate unless he has elected to continue to undergo his sentence pending appeal.

Section 112 now provides that where any person has filed an appeal to the Supreme Court against a decision of an inferior court, the appeal shall not by itself result

in the suspension of the decision under appeal. However, the appellant may within the time prescribed for filing the appeal, apply to the inferior court which made the decision under appeal, for a stay of execution of any judgment

appealed from (whether criminal or civil), pending the determination of the appeal.The amendment also provides that prior to the hearing of the application for stay, the inferior court shall give its reasons for the decision under appeal no later than seven days from the date of the application

for the stay. Where the application for stay is refused or the inferior court fails to provide reasons within seven days, the appellant may apply to the Supreme Court for redress. In respect of criminal matters, where a person has been sentenced to imprisonment by the inferior court, he shall not be prejudiced in his right to apply for bail.

SUPREME COURT OF JUDICATURE (AMENDMENT) ACT

The Juries (Amendment) Act No. 6 of 2011 furthers the objective of the Indictable Procedure (Amendment) Act No. 5 of 2011 by amending sections 16 (trial of issue on indictment by special jury), 21 (number of jurors in criminal cases) and 36 (Majority panel where verdict reduced) of the said Juries Act. The amendment provides that those sections shall not apply where a trial is conducted without a jury under the provisions of section 65A or section 65B of the Indictable Procedure Act.

JURIES (AMENDMENT) ACT

Section 112 now provides that where any person has filed an appeal to the Supreme Court

against a decision of an inferior court, the appeal shall not by itself

result in the suspension of the decision under appeal.

15


Belize is a member of a small club of Caribbean States which have enacted Interception of Communications legislation. Interception undoubtedly has its use as a powerful investigative tool in the identification, apprehension and prosecution of criminals. However, unless vigilantly monitored, the implementation of the interception legislation can wreak havoc on every Belizean citizen’s constitutionally protected right to his family life, his personal privacy and the privacy of his home and correspondence. The potential for such abuse is varied, and can manifest itself particularly where telecommunication service providers are mandated by Ministerial direction to retain telecommunications data of every citizen even, whether a suspect in a criminal enterprise or not.

The requirement of a communication service provider to retain data is not necessarily unlawful but can become so in the absence of legal provisions that protect the invasion of privacy and regulate the storing and sharing of the retained data. The Minister of Police has mandated the telephone companies in Belize to register and store personal information of all persons who buy cellular phones. The next phase of this project is to mandate the phone companies to store other information such as text and voice messages, and numbers called and calls received. Some of this information is already being stored by the phone companies.

The European Union, for instance, under the Data Retention Directive, requires member states to store citizens’ communications data for six to 24 months stipulating a maximum time period. Under the directive the police and security agencies are able to request access to details such as IP addresses and time of use of every email, phone call and text message sent or received. A request to access the information will only be possible with a court order. The laws and legal framework for retention and sharing of such data is comprehensive and publicly available.

In the absence of such laws, the Courts are likely to hold any ministerial action not supported by appropriate laws, to be unlawful. In Shimovolos v Russia [2011] ECHR 987, a decision of the European Court of Human

Rights, the Court had to consider the question whether the registration of the Applicant’s name in a Surveillance Database in Russia based on Ministerial Directives that had never been published,and the consequent collection of personal data about him by the police infringed his right to privacy. Article 8 (similar to sections 3 and 14 of the Belize Constitution), provides that:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and

freedoms of others.”The Court found that the collection and storing of

data amounted to an interference with the Applicant’s private life as protected by Article 8 of the Convention.The Court justified its finding on that basis that where the State takes measures which derogate from a citizen’s rights under Article 8, those measures “should have some basis in domestic law” and that law should be “accessible to the person concerned, who must, moreover, be able to foresee its consequences for him”. The Court found further that when a power vested in the executive is to be exercised in secret, “the risks of arbitrariness are evident”. As such it is “essential to have clear, detailed rules on the application of secret measures of surveillance” particularly in view of the increased sophistication of new technology. Ultimately the Court found that the law must be sufficiently clear so as to provide citizens an adequate “indication of the conditions and circumstances in which the authorities are empowered to resort to any measures of secret surveillance and collection of data.”

At the time of writing, the necessary legislation to provide a framework that protects citizens rights has not yet been brought into law in Belize.

RETENTION OF DATA BY SERVICE PROVIDERS

proof vest and (4) persons who, in the opinion of the Commissioner, are not fit and proper persons to own or use a bullet proof vest.

Any person aggrieved by the refusal of the Commissioner to grant a certificate of registration may petition the Minister in writing to request that the Commissioner be directed to grant the certificate of registration.

A person who is found in possession of a bullet proof vest that is (a) not registered; or (b) registered but not authorized for use by the person in whose possession it is found, commits an offence and is liable on summary conviction to a fine of $500.00. The amendment comes into force upon signature.

“DISCLAIMER: The information contained in the LEX focus newsletter is not intended to be legal advice. You must not rely on the information contained herein. If you have a legal problem you should seek legal advice. To the extent permitted by law, Courtenay Coye LLP excludes all liability for anything contained or presented in this publication and any use you make of it.”

P.O. Box 23415 ‘A’ Street, King’s Park,Belize City, Belize, C.A.

T: +(501)223.1476/223.0279F: +(501)223.0214/225.2548

E: [email protected]

Main Street2nd Floor, Scotia Bank Building

Placencia Village,Stann Creek

T: +(501)523.3282/674.1478E: [email protected]


16 General


The Honourable Mr. Justice Kenneth Benjamin was appointed as the new Chief Justice of Belize on 15 September, 2011. A Special Sitting of the Supreme Court was held on 23 September, 2011 to welcome the new Chief Justice to Belize.

Mr. Chief Justice Benjamin graduated from the University

of the West Indies, Cave Hill Campus and the Hugh Wooding Law School in Trinidad and Tobago. After leaving law school

he engaged in private practice for over a decade (and held part-time positions as Magistrate and Assistant Judge Advocate). He was also later appointed as Magistrate and then promoted to Chief Magistrate for a period of five years in Antigua and Barbuda.

The Chief Justice became an Acting Judge in 1993 and was confirmed in his appointment in 1994. He also sat as a resident judge in Antigua and Barbuda, Montseratt and later in the British Virgin Islands, and Grenada. The Chief Justice’s last appointment before coming to Belize was as presiding judge in the Criminal Division in the High Court of St. Lucia. Chief Justice Benjamin is married with two children and hails from Guyana.

HON. KENNETH BENJAMIN, NEW CHIEF JUSTICE FOR BELIZE

The Honourable M. Justice Duke E. E. Pollard was appointed to the post of Justice of Appeal of the Court of Appeal and is expected to begin his service to Belize in the October, 2011 session of the Court. Mr. Justice Pollard received his B.A. (Hons) and LL.B (Hons) degrees from the University of London and his Master of Laws (LL.M.)

degrees from both McGill and New York Universities. He also holds the Legal Education Certificate from the Norman Manley Law School, Jamaica and is a member of the Bars of Guyana and Jamaica and a Fellow of the Centre for International and Comparative Law of McGill University.

Mr. Justice Pollard is an established expert in international law specializing in international economic law, the Law of the Sea, international institutional law, the Law of Treaties, general integration law and economic integration law.

From 1970 to 1974, Mr. Justice Pollard served as Minister-Counsellor in the Guyana Permanent Mission to the United Nations. Over the period 1972-1974, he was Legal Advisor in the Ministry of Foreign Affairs of Guyana and Permanent Secretary (Ag.) Mr. Justice Pollard was also Legal Advisor to the International Bauxite Association from 1974 to 1982, and, as of 1984, consultant on diverse international law projects for the United Nations, the Commonwealth Secretariat, the Caribbean Law Institute and the Caribbean Community (Caricom) Secretariat. He was elevated to the Bench of the Caribbean Court of Justice on 15 February 2005. Mr. Justice Pollard is now retired from the Caribbean Court of Justice.

HON. JUSTICE DUKE E. E. POLLARD, JUSTICE OF APPEAL

Test

Documents

Transcript of Test