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Majority decision of Court of Appeal returns BTL to GOB

Denys Barrow (Attorney for GOB)

BTL Corporate headquarters

BTL Corporate headquarters

Thursday, May 15, 2014. AARON HUMES Reporting: The Court of Appeal today handed down its long-awaited judgment in the cases of the Attorney General and Minister of Public Utilities versus British Caribbean Bank, BTL Employees’ Trust and Fortis Energy International.

In summary, the Government won all three appeals, gaining a greater hold on Belize Telemedia Limited (BTL) and keeping that which it retains on Belize Electricity Limited (BEL), which previously were theirs only a provision in the Eighth Amendment to the Constitution upheld at the Supreme Court level by Justice Oswell Legall which vested them in the control of the Government and people of Belize.

But both sides are now looking forward to a final determination of the case before the Caribbean Court of Justice (CCJ).

President of the Court Manuel Sosa and Justice Samuel Awich, who wrote the judgment, allowed appeals filed in 2012 and made between them several orders, the effect of which is to uphold the constitutionality of the acquisitions made in 2011 which had been struck down by Supreme Court Justice Oswell Legall, as well as the Eighth Amendment to the Constitution, which sought to vest them under their continuing control on behalf of the people of Belize. Their colleague, Justice Douglas Mendes, dissented.

Notably, the Court’s majority ruling said that the various Acts of Parliament and statutory instruments giving effect to the acquisitions were constitutional and valid, but only from July 4, 2011. Thus, compensation for the properties taken from the respondents – the BTL Employees’ Trust, British Caribbean Bank and Fortis Energy International (Belize) – is only the value of the properties before July of 2011, not going back to August of 2009, in a nod to its previous judgment rendering that acquisition unconstitutional.

Wilfred Elrington (Attorney General)

Wilfred Elrington
(Attorney General)

In a 300-page decision, President of the Court Manuel Sosa and Justice of Appeal Samuel Awich agreed with the appellants and denied the “Ashcroft’s Alliance’s” cross-appeal to vary Justice Legall’s order. They declared the 2011 Acts and Orders acquiring BTL constitutional, but Government’s ownership of the company now dates back only to July 4, 2011 and not to August of 2009, in a nod to its previous judgment rendering that acquisition unconstitutional. It is a consequential judgment, one that brought one of the nominal appellants, Attorney General Wilfred Elrington, to court for a rare appearance.

The A.G. told the press that because the Attorney General represents all Belizeans, a victory such as this one is a victory for all Belizeans and that Belizeans have every right to be satisfied with the judgment.

But he noted that Government remains open to compensating the former owners. “We have to pay for it, we understand that, and we have offered to pay. So that isn’t a problem. The Government and people of Belize always pay their bills. But, we’ve got to make sure that the interests of the people is always protected, and it is for that reason that we go to court to have these matters resolved by the courts.”

And the A.G. held out a sort of olive branch when asked about the implications moving forward of the decision. While Government wants and expects to maintain majority control of both companies, he said, it does look for strategic partners for capital and expertise.

Denys Barrow (Attorney for GOB)

Denys Barrow
(Attorney for GOB)

For Senior Counsel Denys Barrow, one of the most gratifying parts of the judgment was the court’s acknowledgement of the constitutionality of the Eighth, previously Ninth, Amendment.

The majority of the Court disagreed that an amendment to the Constitution could be unconstitutional because it does not conform to the basic structure of the Constitution, although Justice Mendes disagreed.

Noting that he had yet to fully read the decision, Barrow stated, as “pure speculation,” that the Court’s decision to set July 4, 2011 as the date on which the second acquisition came into effect may leave the Government liable for compensation between the first takeover in August of 2009 to July of 2011, but qualified the opinion by stating that it was “open-ended.

The respondents were left crestfallen, but less so because of the division of the ruling.

Senior Counsel Eamon Courtenay took heart in that division and said that it is now all up to the Caribbean Court of Justice, which had been eagerly awaiting this ruling.

Courtenay said he “drew comfort” from the disagreeing opinion of Justice Mendes, which said went “entirely” in their favor on all three appeals. He noted that a “vigorous” appeal will be argued at the CCJ and said they had not “overwhelmingly” lost.

Eamon Courtenay (Senior Counsel)

Eamon Courtenay
(Senior Counsel)

Courtenay noted a few curiosities he picked up from the decisions. It was “rather surprising” to him that the Court effectively reversed itself from its 2011 decision on the 2009 acquisition, because the BEL acquisition used language similar to that of the first BTL nationalization, and in the case of the Bank, Government signaled its intention to take control of BTL from an entity that was not a public utility.

And with regard to the date of acquisition, Courtenay found it remarkable that if the Government was in control from 2009, it needed a “public purpose” to reacquire BTL two years later.

He also noted that while they wait, it remains an unhappy state of affairs because time has passed and many decisions have been made, some of which, he noted, violate persons’ constitutional rights.

Courtenay said he was not aware of any talks at the moment for compensation.

The CCJ is now expected to take up the case later this year in conjunction with appeals from the first acquisition in 2009.

All sides now go home to read the judgment and we expect much debate on what it all means in the days ahead.

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