Legally Speaking: The Cover-Up

“The Cover-Up!”

Legally Speaking with Anthony Sylvestre, Jr

By Anthony Sylvestre, Jr.

On Thursday the 19^th September, 2013, when most Belizeans were getting ready and making preparations for the celebration of our 32^nd anniversary of Independence, the Office of the Prime Minister sent out a shocking press release that caught all of us unawares. It decreed that henceforth, Hon. Elvin Penner, Minister of State with responsibility for Immigration was fired from this post and kicked out of cabinet. We were told tersely, that a subsequent investigation would commence into the issuance of a Belizean Nationality certificate and passport to a South Korean.

“What could Penner have done?” everyone asked, that warranted such a powerful press release, at that time when, as said, Belizeans were in a festive and patriotic mood. Such a news release, no doubt, could and would take away from the Prime Minister’s annual Independence Day speech only days away. So, naturally, the Prime Minister’s naysayers discounted the release as propaganda being used to divert Belizeans’ attention: but from what, no one could sensibly discern. Other naysayers were more forensic: the United States must have forced the Prime Minister’s hands, they opined. For who else could have Prime Minister Barrow make such a public declaration on the eve of Independence and overshadow his Independence Day speech.

But, as they say in Kriol, ‘ting started to come out.” The Belizean rumour mill started churning with characteristic excessive speed and a week later, at a special sitting of the House of Representatives on Friday the 26^th day of September, 2013, the Prime Minister had to, as the Jamaicans would say, “fess up” though of course, only partially.

The Prime Minister told us that Penner admitted that on the 9^th day of September, 2013 he signed a Belizean Nationality certificate for a South Korean Won Hong Kim. This certificate was back dated to April, 2013 (but not by Penner, the Prime Minister said). But, the Prime Minister could not dodge the obvious: the South Korean had never set foot in Belize and was in a Taiwan prison when Penner signed the nationality certificate.

Not to be outdone by the Prime Minister, Penner on the same 26^th September, 2013 sent an email to the media detailing his role in the issuance of Belizean passport to Kim.

And days later, Penner’s former immediate boss, Senator Godwin Hulse, Minister of Immigration, further detailed the extent of the scandal: he received word from the Taiwanese officials confirming that Kim was in prison in Taiwan all the while Penner was signing Kim’s nationality certificate and accompanying a Kim imposter to the passport office to get Kim’s passport.

All these facts of course revealed the obvious: there was the commission of a crime.

For indeed, section 22 of the Belize Nationality Act states that it is an offence for a person to make a statement, which he knows to be false in a material particular, for the purposes of procuring a Belize Nationality Certificate. And to obtain a Belize nationality, the applicant must have lived in Belize for at least five years continuously. Citizen Kim could never have satisfied this requirement; therefore, it is obvious a person or persons had to make false statements in order for Kim to be issued a Belizean nationality certificate.

A crime clearly also was committed when Kim was issued the Belize passport. As it turned out, no less than Penner, the Minister with responsibility for Immigration at the time, signed a passport recommendation dated the 3^rd September, 2013. He vouched in the recommendation that he knew Kim at the least for three years: but remember, Kim had never ever been to Belize.

Section 3 of the Passports Act makes it a criminal offence for a person to vouch for the fitness of an applicant of a passport if he does not have actual knowledge of the applicant. This sounds like what went down here.

Thing is, these offences under the Belize Nationality Act and Passports Act are what are called summary offences. And because they are summary offences, the law (section 18 of the Summary Jurisdiction Procedure Act) requires that criminal charges be brought within six months from the time the offence would have been created. In this case, charges arising from the illegal issuance of the Belize nationality certificate and passport to South Korean Kim would have to be brought by 9^th March, 2014 the latest.

But to date, no criminal charges have been forthcoming against anyone in this matter leaving everyone (except of course those having vested interest) believing that a cover up was a foot.

Which brings us to the court proceedings before the Chief Justice brought by the Leader of the Opposition Francis Fonseca against the Commissioner of Police and in which the Chief Justice made a monumental ruling on Monday.

With the six month limitation period fastly approaching, the Leader of the Opposition commenced judicial review proceedings against the Compol on the 19^th February, 2014. The court proceedings followed a letter sent by attorneys for the Leader of the Opposition to the Compol detailing the necessity for urgency in criminal investigations commencing in the illegal issuance of the nationality certificate and passport to the South Korean Kim.

The Compol in his defence declared that the law gave him discretion to determine whether to initiate criminal proceedings and that as it relates to the South Korean Kim matter, he chose not to investigate.

It was a bold declaration on part of the Compol, no doubt, because the law (the Police Act) mandated that the police department’s duty is to preserve the peace, detect crime, apprehend offenders and enforcement of all laws of Belize. Thus it was perturbing to everyone how the Compol could conceive that the police’s powers could be exercised in such a way. It also did not escape anyone, including the court, which a confidential memorandum, leaked from the Office of the Director of Prosecutions was telling another tale. It starkly revealed that the police had in fact commenced criminal investigation into the illegal issuance of the passport and nationality certificate, but it was halted after on instructions from someone.

This, the Chief Justice declared on Monday, was cause for more than concern, and was what tipped the balance in him granting the mandamus compelling the Compol to continue, accelerate and conclude criminal investigations into the illegal issuance and procuring of the Belize nationality certificate and passport before the end of the sixth month limitation period, which ends on 9^th March, 2014.

Now, as expected, many believe that the Compol will just continue to bid time, do nothing and have the limitation period run out. It is an understandable feeling that the cover-up will continue, given all that has taken place thus far. The next few days therefore, will be very interesting as the public watch to see whether the Compol- the man in charge of enforcing the laws of Belize- will comply with the orders of the Chief Justice, or continue to ignore the laws in an attempt to cover up the obvious. It will also be interesting to see what will be the next move of the Leader of the Opposition.

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