Today the Caribbean Court of Justice handed down a major decision relating to Telemedia, The Ashcroft Alliance and the Eighth Amendment.
Back in August, the CCJ granted special leave to appeal to Dean Boyce and the British Caribbean Bank and barred government from selling any shares in BTL until the matter is settled before the courts.
Attorneys for the Ashcroft Alliance went one step further; they asked the court to examine the constitutionality of the second nationalization one time – without them having to take it to the lower courts.
Today the court announced its decision on that. If the court decided to proceed that would mean that the controversial eighth amendment would be immediately before the highest court in the land.
If not, it would mean a reset; starting the challenge of the ninth at the lower courts – and working it back up – inevitably – to the CCJ – a process which will take years to finish.
The judgment was handed down at 12:30 today via teleconference with the judges at CCJ headquarters in Trinidad and attorneys for both sides at the Supreme Court in Belize City. Denys Barrow and Lois Young appeared for Government while Godfrey Smith appeared for Dean Boyce and Eamon Courtenay for The British Caribbean Bank.
President of the court, Sir Dennis Byron read the judgment which took about forty minutes to deliver.
He found in the government’s favor: That the Ashcroft Alliance would have to bring the case up through the Supreme Court, and then the Court of Appeals, and then finally to the CCJ – which, again, will take years.
It’s far from the end of the road, but it does give Government plenty of breathing room – and today Government’s attorneys were visibly relieved – they spoke to us outside the courtroom:
“Are you satisfied with this outcome?”
Lois Young – Attorney for Government
“Oh, yes, this is all we can ask for. It’s everything we can ask for, and the other side got nothing that it ask for” Jules Vasquez
“What is the consequential effect of what has happened here today?”
“The order of the 16th of December has been lifted. The junction against selling the shares has gone by the way side. The injunction against the day to day management of the company – it wasn’t an injunction; the order allowing the day to day management has gone by the wayside.”
Denys Barrow – Attorney for Government
“What the applicants really had been seeking to do, and the court was sympathetic to the passion with which they yearned for this because of the interest at stake. They were seeking to get a matter, a case, which will be brought in the Supreme Court, heard right away in the CCJ. And, the CCJ in this decision said, ‘Listen, We understand why you want it, but as a matter of how courts operate, as a matter of judicial policy, as a matter of fact of how judges should conduct the judicial process; let us not have that. It is important when things reach us, that all the arguments, which are applicable to this matter, should have been gone through already.”
“Might not the opponents of the 8th amendment, and the rea-acquisition; might they not say that it is simply a deferral of an inevitable day of reckoning for the 8th amendment,”
“It’s not inevitable that the CCJ, or that the Supreme Court, and the Court of Appeal will rule in their favor. That’s not inevitable. That’s presumptuous of them to say that it’s inevitable.”
“I said that.”
“To give fairness and a fuller picture, you would have heard when President Byron was giving his reasoning, He indicated that that issue, the validity of the 2011 Legislation, and in particularly,. the constitutional amendment, raise issues which was so novel, so large, so complex, and which have an impact or will have an impact beyond the parties to the litigation, and beyond the country of Belize, that I think is the ultimate indication that it is a question of huge complexity, and it would be really idle for either side to claim the likelihood of victory. It would be a superficial response.”
The usually voluble attorneys for the other side, Smith and Courtenay – had no comment today. Of note is that Fortis had asked to be included as an interested party if the case goes forward in the CCJ – but since it is not, that was denied.
The injunction against the government was lifted on two conditions: first, that the government must cooperate with the Ashcroft Alliance in having their challenges at the courts below heard as quickly as possible and second that government can now go ahead and sell the shares, but it must keep the proceeds of the sales set aside, and it can only be used to pay compensation to those shareholders whose shares were acquired.
So now, the sale of shares in Telemedia can proceed. By our calculation, 30% of the company is still available for sale. That’s because – according to the Eighth Amendment Government interests must control 51% of the company. With Social Security presently owning 20% and Government with 62%, government currently controls 82%. So, government can sell 30% of the company’s shares and still have public control of 51% of the company’s shares.
One other notable point which came out today is that the President noted that it must be accepted that the Eighth Amendment and the second nationalization is good and valid until declared to be otherwise by a court of law.