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Oct
18
Written by:
Godfrey Smith
Monday, October 18, 2010
Friday’s anodyne, consciously matter-of-fact government press release that Belize Court of Appeal President, Elliot Mottley, had “retired,” was an attempt to pass off a resignation as a routine retirement.
The release immediately prompted speculation and news reports described the president’s going as “sudden” and “a coincidence that couldn’t be ignored.”
Justice Mottley’s quiet resignation – or rather the reason for it – is the most recent in a string of developments affecting the Belize judiciary and, consequently, the rule of law in Belize.
The rule of law underpins the Belize Constitution upon which the independent State of Belize is founded. It means simply that every person or authority, without exception, is under the law and must act in accordance with the law of the land.
The United Nations defines it as a “principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated.”
It is not the presence of judges but rather the presence of genuinely independent, fearless and impartial judges that is the rampart for the rule of law; without this, the rule of law is a sham.
Justice Mottley, a capable and distinguished judge, is not the first, forced retirement of the Barrow administration. Speaking at a Supreme Court farewell ceremony in March of this year, “retired” Justice of Appeal Boyd Carey said: “Now I receive orders to demit office at this time, the end of the March session. Dutifully, as commanded, I goeth.”
In a brief interview to a local television news station, Justice Carey said: “Well I learnt that politics plays a very significant role in the life of this country. It is not for me to comment very much on that area of your social life but perhaps it plays far too much significance in a small society… so I will take that back with me sadly.”
Justice Carey’s observation may be trite knowledge in Belize; its implication, however, less so. The implication is this: in an immature, 29-year-old democracy where the viciously tribal, zero-sum nature of politics is magnified and people justifiably fear victimization and government intimidation, the rule of law is the only guarantee of fair play.
No action, however small, that erodes the rule of law should therefore be ignored.
Prime Minister Dean Barrow has consciously taken actions that are erosive of the rule of law. On Dr. Conteh’s retirement as Chief Justice on September 30th 2010, Channel 7 news commented that: “It is clear Conteh's successor will have big shoes to fill. And in his absence, the attorneys and judges must now ensure that the judiciary maintains the high standards that Conteh leaves behind."
Yet by Monday October 4th, Mr. Barrow had caused to be appointed as acting Chief Justice, Samuel Lungole Awich, he of the triple-barreled moniker who had been embarrassingly castigated in a Court of Appeal judgment for a delay of three years in the delivery of a court decision and whose removal from office is the subject of resolution tabled before the Bar Association.
Awich, in one of his first acts as chief justice, scheduled for hearing in December, a case brought by the Bar to challenge a constitutional amendment when the rules require such cases to be heard within four weeks. He has so far ignored the Bar’s request that he recuse himself from the case.
The perceptions that arise in a situation where a judge vulnerable to disciplinary action for removal is acting chief justice and applies to be appointed as substantive chief justice are, frankly, legion.
One year after coming to power, the Barrow Government provoked discord in Executive-Judiciary relations when the Attorney General, Wilfred Elrington, at the opening of the Supreme Court’s legal term in January 2009, publicly charged that the Judiciary was dispensing injustice rather than justice.
In a later, unprecedented statement from the Judiciary, the judges stated that the Attorney General’s bombast “sounded like an open and clear call to undermine the judiciary” and was “clearly orchestrated to bring it into disrepute.”
Mr. Barrow’s dismissive, mischaracterization of the deteriorating relationship between his Executive and the Judiciary as “little stresses, little strains” became apparent when Chief Justice Conteh’s request to attend a judicial event was summarily and spitefully rejected by a junior officer from the PM’s Ministry.
The little stresses and strains rippled across the judicial terrain and erupted into a substantial tremor when the Solicitor General, Oscar Ramjeet, was deployed, like a wound up toy, to request that Dr. Conteh proceed on early leave, a request that he flatly refused.
The prime minister’s refusal to extend Dr. Conteh’s tenure to December to allow him to finish a handful of cases was met with an angry resolution from the Bar Association, expressing its “disapproval of the unseemly manner in which the tenure of the chief justice has been treated by the government of Belize” and declared that the Chief Justice was “entitled to continue in office with all the plentitude of the office without any interference from the executive until the office is demitted.”
The Bar, concerned that no institutional setback should be suffered with Conteh gone, wrote to Mr. Barrow requesting a consultative role in the process of appointment of the next Chief Justice and expressing concern about temporary appointments to the Court of Appeal.
The PM, ever sensitive, bloating with righteous indignation but short on statesmanship, curtly spurned the Bar’s request.
His next move was to recommend that Mr. Justice Oswell Legall, the most junior Supreme Court judge, (who, for purposes of statistical interest, has not ruled against the government in any of a number of cases challenging government action) temporarily sit as a Court of Appeal judge in one case where there was an insufficiency of appellate judges to constitute a panel owing to judicial recusals.
It is not that the PM should have stood by and done nothing. It is that Dr. Conteh who sits on the Court of Appeal of the Cayman Islands and therefore has appellate judicial experience was still in the jurisdiction and would have happily served.
But there is a less obvious – if more potent – reason why there should real concern for the rule of law in Belize. Mr. Barrow, by nationalizing the most profitable Belize company, has led his government into an all-consuming, multi-jurisdictional, extremely costly litigation war with Telemedia’s former shareholders.
As described in the news, it is the “boldest, most defining action of the Barrow administration.” He has pinned his political reputation and legacy on the outcome of the nationalization experiment.
It is not difficult to see how the Mr. Barrow, a man naturally given to self-indulgence and egotism, could be tempted to bend or shape institutions in his high-stakes, perceived just war against Lord Ashcroft. His explanation, as always, would be “the national interest” and any other view would be simply unpatriotic.
Justices Mottley and Morrison held indefinite tenure as Court of Appeal judges. The PM recently amended the Belize Constitution to replace their indefinite tenure with one-year tenure, expiring in April 2011. It should come as no surprise that self-respecting judges consider that they are being sent a message and opt to tender their resignation.
Like the nationalization of Telemedia, the PM may have a “bold, defining plan” for the Belize Judiciary. If so he should come out and say what it is. In the meantime, he should stop his messy, ad hoc tinkering with the rule of law lest it becomes a habit-forming addiction.
Copyright ©2010 Godfrey Smith
9 comment(s) so far...
Re: Barrow, Belize & the Rule of Law
An erudite accounting of what has transpired and, of course, I agree. It would be/will be interesting to hear from the defense.
By Glenn Tillett on
Monday, October 18, 2010
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Re: Barrow, Belize & the Rule of Law
Excellent! One point you did not mention, Godfrey, was the effect of the Constitutional Amendment that led to the appointment of the new Attorney General, who is not a member of the legislative body, and who was not supposed to be mixed up in the hurly-burly of politics; and, instead, should have been the one promoting the rule of law and the independence of the judiciary.
By Curious on
Tuesday, October 19, 2010
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Re: Barrow, Belize & the Rule of Law
Iin a world where the deck is constantly stacked against us and people who look like us, we could be excused for wanting the same for ourselves.
By Gadfly on
Tuesday, October 19, 2010
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Re: Barrow, Belize & the Rule of Law
Hypocritical traitor-the same one who wrote "Forget Sovreingty", and went on to publicize Belize negatively? Write as much academia and statistics as you want, talk as best you can stuttering on TV without the benefit of polishing and an online thesarus-the fact is that the people of Belize like Barrow more for whatever he has done and respect him more-he will win his seat and the UDP will win again-whether by more or less seats does not matter though it may well capture Freetown and Corozal East? Barrow has more respect in Belize than you will ever have or could ever get-yes some people will not like what he has done or will do-but we forgive him-unlike you and other PUPS. You write and talk-he fixes it-go fly away (and God knows what else) to Africa with Ashcroft and dont come back-Take Kaseke with you-he needs a ride-just tell him to chill on the airplane. Rule of law my ass-where were you the last 10 years when they were all being violated? Didnt you bend the rules with Belipo and Company regisitry when you took the Belizean Public money as your personal income?
By Talk for another term on
Wednesday, October 20, 2010
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Re: Barrow, Belize & the Rule of Law
Spot on, Curious.
I think Barrow is being silly. He knows that the UDP will win the next election, but he might be unaware that his behaviour erodes confidence in himself and his party. His heavy-handed treatment of the Judiciary is not really necessary, but it will be overlooked. What makes winning the next election so difficult for the PUP is the fact that they have not and, it seems, will not say their Act of Contrition. That and the fact that their "leader" can't seem to oppose government by any other way than crying for Commissions of Enquiry.
The fact that the UDP will win again shows just how very badly the PUDP malaise afflicts us. The two main parties are very similar, but we refuse to inject fresh blood into the system. We need parties that actually live their party philosophies.
By RAGM on
Thursday, October 21, 2010
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Re: Barrow, Belize & the Rule of Law
We have to take into account that the judiciary of the United Kingdom; the country that sets the bench mark for Commonwealth jurisdictions has a retirement age for members of the judiciary. Even the Law Lords in the House of Lords which has been renamed and revamped as the Supreme Court of the United Kingdom has a retirement age. Lord Bingham reached his retirement age and retired. He was replaced as the Senior Law Lord by Lord Phillips of Worth Matravers who was previously the Master of Rolls. I see no reason why Court of Appeal judges of Belize should be given life time tenure when the best judges in the Commonwealth (judges of the United Kingdom) know that they have to retire once they have reached a certain age. The British used to have lifetime tenure for their Law Lords until around 1993. Even so, there has never been a Law Lord in the House of Lords who previously remained in office until he died. Why would Belize want to shackle herself with a certain school of thought in the Court of Appeal? Especially when there have been cases in which the Privy Council ruled that the Belize Court of Appeal was wrong in allowing an Appeal from the Belize Supreme Court. The most notable was a particular case were the Court of Appeal said Chief Justice Conteh reached a decision based on "mental gymnastics." It was no other than Justice Carey who used this phrase to describe Conteh CJ's finding. It shows that one man (CJ Conteh) was better than the three minds of top jurists in the Court of Appeal when deciding the atricles of association case involving Jeffrey Prosser, Lubana etal. The Privy Council restored CJ Conteh's judgment in the supreme court without changing a single thing the former CJ made in the case.
Do we really want to shackle ourselves with Justices of Appeal who all get it wrong?
The only thing bad about the Mottley saga was the GOB press release. The government should have said that the man was resigning and let the press and public disourse interpret the resignation for what its worth. Another point worth making is that some quarters thought and still think that the former CJ was entitled to a renewal. This is wrong and it is dangerous to entertain such thinking or to encourage it. Perhaps Belize needs a differently balanced Court of Appeal which will not get it wrong like they have done in a number of cases which were heard by Conteh CJ. One would expect that one man can get it wrong (CJ Conteh) but certainly three judges could not. When such a situation arises as in the Prosser, Lubana case and Santiago Castillio v Quinto case (both heard by Conteh CJ), one has to ask was the court of appeal panel hearing both cases a strong panel? As a final point would we still be making a lot of noise if a different supreme court judge was seconded to the Court of Appeal instead of Legall J? I am of the opinion that it would not matter who was seconded so long as the secondment was made. Correct me if I am wrong but we will never know because that never happened. Maybe Belize should ammend the constitution and be like the rest of the Commonwealth were the Chief Justice may sit as a judge in the Court of Appeal. After all, the CJ is the head of the judiciary and the most senior judicial officer in Belize, even more senior than the President of the Court of Appeal; something many lay men are unaware of. In my opinion the Conteh court was stronnger than the Mottely court especially the civil division of the Conteh Court.
By UWI Alumni on
Saturday, October 23, 2010
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Re: Barrow, Belize & the Rule of Law
No one disputes that change that will improve our jurisprudence is much welcomed. I for one have been wondering about the strength of the panel of judges on the Court of Appeal, as I believe that the "visiting" judges saw Belize as this sleepy old place where they could just relax and read arguments on the bench during a sitting and string two sentences together and deliver a "decision." However, what I take issue with is the manner with which the changes are being imposed. Why amend the Constitution in the manner that it was? Our Constitution is the highest law of the land, and as such, should not be tinkered with so lightly as this damn PM has done. Damn it, why didn't he seek Dr. Barnett's help before he sought to hoodwink us with these clearly unconstitutional amendments? My next point is this: There are those of us at the bar have become quite suspicious of a PM who refuses to consult with the Bar Association, and I believe that if this PM was to come off his damn high horse, and be less heavy handed and more consultative with the Bar Association, his amendments would not be viewed with such cynicism. Additionally, there are those in the Bar Association who have concluded that there are more egregious, problematic judges on the bench who should have been dealt with, and the Bar Association has to naturally ask why wasn't the Constitution amended to "deal" with them? Perhaps "misbehaviour" could have been better defined during one of his constitutional amendments?
By Curious on
Tuesday, October 26, 2010
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Re: Barrow, Belize & the Rule of Law
good job MR constitutional lawyer you seem to be the best to buk Barrow so far what this reminds me so far is Henry the eight all over a King /Priminister changing there country England/Belize one TO MARRY A WOMAN and-the other to win a pissing match between himself and a Billionier and the rest is history what the church needs to remember is the price they have had to pay to ever time they misread the making of a dictator as we recall heads did roll but don't count the Church out yet as God always rise up a messenger to tell them thus say's the lord
By the nutcracker on
Friday, September 02, 2011
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Re: Barrow, Belize & the Rule of Law
good job MR constitutional lawyer you seem to be the best to buk Barrow so far what this reminds me so far is Henry the eight all over a King /Priminister changing there country England/Belize one TO MARRY A WOMAN and-the other to win a pissing match between himself and a Billionier and the rest is history what the church needs to remember is the price they have had to pay to ever time they misread the making of a dictator as we recall heads did roll but don't count the Church out yet as God always rise up a messenger to tell them thus say's the lord
By the nutcracker on
Friday, September 02, 2011
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