This document is an open response to the Prime Minister's letter clarifying the Belize Constitution (Ninth Amendment) Act 2011. It argues that the Act undermines the separation of powers and the judiciary's ability to check the executive and legislative branches. It cites several other countries where courts have found limits on a legislature's power to amend the constitution. The response calls for a referendum or constitutional convention to allow Belizeans to have a say in the proposed changes.

1. AN OPEN RESPONSE TO THE LETTER FROM THE PRIME MINSTER OF
BELIZE TO THE PEOPLE OF BELIZE - CLARIFICATION TO THE BELIZE
CONSTITUTION (NINTH AMENDMENT) ACT 2011
My Fellow Citizens of Belize,
Our Prime Minister, on July 29, 2011, wrote a letter to us clarifying his Government’s
position on the Belize Constitution (Ninth Amendment) Act 2011. This is an open
response to that letter.
Belize is a nation with a written constitution which is supreme law. The authority of our
courts to review Constitutional amendments is not found ONLY in the bare words of the
Constitution itself. Such authority is genetically rooted in the doctrine of separation of
powers which all constitutional scholars acknowledge as a key feature of our democracy.
That foundation and the “unlimited original jurisdiction” granted under section 95, to the
Supreme Court, coupled with the jurisdiction granted to the Court of Appeal and the
Caribbean Court of Justice form the structure of the Judiciary which functions as a check
and balance on the Executive and Legislature in Belize.
The Prime Minister referred to the Irish Supreme Court case of Riordan v An Taoiseach
which was brought by Dennis Riordan who was seeking declarations that the 19th
Amendment of the Constitution Act 1998 in Ireland would allow the Constitution to be
amended in a way other than by referendum held under Article 46 of the Irish
Constitution.
Regrettably, Belize has no such referendum requirement. In the Riordan case, after the
Supreme Court had ruled against Mr. Riordan, a referendum was duly held and the Irish
people overwhelmingly approved the proposal contained in the 19th Amendment of the
Constitution Bill which was then signed into law and became a part of the Irish
Constitution. When Riordan tried to go back to Court to attack the Constitutionality of
the Amendment, it was pointed out to him that since the 19 th Amendment had now
become part of the Constitution; it could no longer be attacked in the light of the
Constitution.
And that is exactly the problem with clauses 2 and 3 of the 9 th Amendment. Once they
become part of the Constitution, they cannot thereafter be challenged because of the new
sections. The Riordan case, in fact, is a good case to show why Belizeans with genuine
concerns must challenge the Amendment NOW, and not wait until it becomes law and is
made a part of the Constitution itself.
The Prime Minister did not remind Belizeans that in fact, there was a time when he had
an executive duty, and Belizeans had a legal right to a referendum, when their

2. fundamental rights and freedoms would be taken away. That right was removed by the
Referendum Amendment Act of 2008, one of the first legislative acts of this government.
The only reason that the Privy Council in the Alberto Vellos v. AG case did not call upon
the Prime Minister to hold this last remnant of the right to a referendum on the 6th
Amendment, was because in the face of overwhelming negative public opinion on
preventative detention, and the Bowen lawsuit on the taking of private property rights,
GOB blinked. By the time the case went before the Privy Council, Government had
changed its Bill and did not go through with what it had originally proposed.
Those legislative changes were, in fact made by popular demand, to the 6th Amendment
Bill, and that cannot be denied. The Bowen case was in fact settled at the Court of Appeal
by consent - and is still good law in Belize. None may deny that.
There are several examples of courts in other parts of the world, who have written
constitutions like Belize, who are doing precisely what the Prime Minister says cannot be
done - allowing challenges to amendments to the constitution. These include India
(Kesavananda v State of Kerala), Bangladesh (Anwar Hossain Chowdhary vs. Bangladesh),
Uganda (Ssemogerere et al v Attorney General), Mauritius (The State v Khoyratty (Mauritius),
and, of course, Belize in the Bowen case.
The Kesavananda case makes it clear that a constitution has a basic structure which
cannot be altered beyond recognition. To state that the legal principle in that case, “has
been rejected everywhere else except by Conteh in Belize”, is to wilfully ignore the fact
that the constitutional doctrine of basic structure is in fact a solid part of Canadian Law.
Basic Structure doctrine has been applied in cases in Mauritius, Bangladesh and Uganda
as well.
There are many other countries in which the position has not yet been determined by the
courts. This is because few, (if any) democratic governments are blatant enough to
attempt to interfere in the court's jurisdiction and undermine the rule of law in the manner
proposed by the 9th Amendment. In St. Vincent, in 2009, in fact, the Government
proposed sweeping constitutional amendments, but took the matter to its citizens in a
referendum.
That the National Assembly does not have unlimited power to pass laws is obvious to
Belizeans, even if the Prime Minister refuses to agree with their view. There is a basic
structure to our Constitution which cannot be altered without changing the entire nature
of the Constitution upon which the legal order of our nation is founded.
Paragraph (f) of the preamble to our Constitution states that the people of Belize “desire
that their society shall reflect and enjoy the above-mentioned principles, beliefs and
needs and that their Constitution should therefore enshrine and make provisions for
the achievement of the same in Belize.”

3. This means that our fundamental rights and freedoms are guaranteed for all time and that
Belize shall continue to be a democracy. It also means that the Legislature cannot
remove the jurisdiction of the Courts over interpreting the laws of Belize, including the
Constitution, by a mere act amending the constitution. Such a law would undermine the
basic structure, and all that which we enjoy, and the framers intended.
Our basic structure is grounded on a separation of powers between the judiciary, the
legislature and the executive. The executive/legislature can make laws, but cannot
prevent the judiciary from interpreting them; while the judiciary must interpret the law,
but cannot pass laws itself.
The Privy Council, Belize's highest court until very recently, established (in relation to a
case regarding the Mauritius Constitution) that there can be aspects of a written
Constitution that are so deeply entrenched that they cannot be overridden. This must
include the role of the courts in the Belize legal system, the separation of powers and the
fundamental rights guaranteed by the Constitution.
The Privy Council further made clear that amendments to the Constitution must
themselves be Constitutional. The Government is therefore not entitled to pass
amendments infringing fundamental rights that remain part of, and are guaranteed by the
Constitution. Otherwise, the Government would be permitted to remove fundamental
rights by the back door without any of the safeguards preventing such changes that are
enshrined in Section 69. Every tyranny requires a tyrant. The citizenry are justified in
rejecting this.
The Belize Constitution does, however, provide the "textual support" (which the Prime
Minister claims it lacks) to limit our Legislature’s power to amend the Constitution. Such
support is found not only in paragraph (f) mentioned above, but also in the words of
Section 2, which states that the Constitution, not the National Assembly, shall be
Supreme.
Those Belizeans who do not support the current draft of the 9th Amendment hold the
opinion that the Constitution of Belize does not grant Parliament unlimited power to
amend. Given the track record of this Administration in the past three years on presenting
in the House of Representatives the 6th, 7th, 8th and now 9th constitutional amendments
before consulting, can Belizeans be blamed for the belief that unlimited Parliamentary
power is a sure open-door to abuse? It would be un-patriotic NOT to worry.
It is cold and empty reassurance to say that the proposed amendments would not prevent
the right of access to the courts to challenge constitutional amendments and those claims
could still be heard. The bleak reality is, that with the 9th Amendment in place, if proper
procedure has been followed, no remedy against parliamentary constitutional abuse could
be granted by those courts.
There would be no point in expending energy and resources to go to court to have such a
claim heard. The supposed right of access to the courts would be entirely empty – as
hollow as the claim that redress would be available.

4. It is precisely because in Belize, there DOES exist the kind of democracy, tradition, and
people power that is the ultimate safeguard against abuse, that there are so many
Belizeans united in their concerns about this 9th Amendment.
Let me throw out a bold challenge - and a patriotic offer - to the proponents of
constitutional change. I will presume that the assurances of the Prime Minister and
Foreign Minister are genuine and that the Government will consider itself bound by the
outcome of the public consultation process. Let the National Assembly use its power,
under the Referendum Act to hold a referendum on the 9th Amendment Bill. Let Belizeans
have their rightful say.
Better yet, convene a Constitutional Convention. Let all stakeholders, political parties,
civil society and concerned Belizeans, engage each other in civil discourse, for the good
of our nation, the development of our democracy, and the love of our Jewel.
We can, and we must rise above our mutual distrusts, be they partisan or personal. We
must go beyond our deeply held suspicions, and rise, in this hour of Belize’s need to
work, together, under the shade of our tree of liberty, to strengthen our democracy.
Our children, our future, our freedom demand no less.
Lisa M Shoman
August 9, 2010