As we reported last week Thursday, the Bar Association of Belize has made a resolution to apply to the Caribbean Court of Justice (CCJ) to join the cross-appeals of the utilities nationalization cases as interested parties. It is not to contest the settlement of the cases – that is just about done and dusted. In fact, the Court is to hear the applications for consent orders to be made in the case next Thursday, October 15, via video conference between the Supreme Court in Belize City and the CCJ in Port of Spain, Trinidad and Tobago. The Bar Association says it is about getting a result on the matters of public law in the case – the Eighth Constitutional Amendment and Acquisitions Acts for both companies. But Government counsel Denys Barrow, who deferred comment to us last week until the Bar spoke out publicly, broke that silence to our colleagues after a court appearance on Wednesday, and he had plenty to say, none of it complimentary. Echoing a position held by younger brother Prime Minister Dean Barrow and his Attorney General Wilfred Elrington, Denys Barrow said the Association, which is dominated by members of the Opposition party, voted down his counsel at the Thursday meeting.
Denys Barrow, Senior Council: At the meeting of the association, I presented a paper which set out the reasons why it is entirely inappropriate for them to make that application. Unfortunately for I think political reasons, those who were putting forward the resolution rallied their troops, and in my view, a clear political vote was taken that they should go forward and make this application to the CCJ to allow them as non parties to say to the CCJ what they think the CCJ should do. I think it is outrageous, I shared that with them. I was voted down, and that is it.
Barrow says the court does not in practice rule on legal questions that are part of settled judgments. Because the settlement has been reached, the chances for success of the Association is, in Barrow’s personal view, slim to none.
Denys Barrow, Senior Council: Well you see this is the thing. If you have many interesting questions that arise, questions in law which are of great interest to the population, as the court just finished saying just now you will have many instances in which decisions are taken in relation to let’s say policy documents, policy issues, but it is not for the court to pronounce upon these generally. The court needs to wait until a particularly issue comes up, and give a determination based upon a specific case which is before them. A court is not allowed, or will not give what you call a, ‘Hypothetical’ or ‘Theoretical’ decision. So the question whether the 8th amendment was valid is now not any longer before the CCJ, but the Bar association, or the politicians who are behind this move want to have that. I imagine they have some hope that if the CCJ gave a decision, the decision would say what they want it to say and that this would embarrass the government. So that is my understanding of what they are about.
Concerning the arbitration that will determine final compensation for BTL, Barrow expects that it will come soon, though not as some may hope to affect the general election. However, he disputes that the Government has handed a blank cheque to the former owners for whatever amount they wish in compensation. It has to be settled as a matter of law, he says, and there is no getting out of it
Denys Barrow, Senior Council: I, as a guess, without having heard anything recently, at a guess I would say within the next 3 months. The notion that it is a blank cheque is a misconception because Belize was taken to arbitration against the wishes of this present government, but we have had to accept the nation of Belize has had to accept that if a foreign investor takes you to arbitration pursuant unto a treaty which we entered into from the 1980’s, then the arbitration has to proceed that we owe money for compulsorily acquiring the properties of the former share holders is a given, so we owe them. So whether or not any settlement had been reached, we owed the people, and the tribunal to decide how much is to be paid, that is the arbitration tribunal. We cannot get out of it, that is not a decision that this government made. It is a situation which as a matter of law, and that is something we cannot get out of.
We will continue to seek formal comment from the Bar Association.