Constitutional Debasement or Development?
With both the legislature and the judiciary vigorously embracing their respective roles in developing the Belize Constitution, it was perhaps only a matter of time before they differed about how the Constitution should be developed to best reflect the aspirations of the people.
Differ they did, and sharply in Vellos v Prime Minister of Belize.[985] Two of the biggest issues of the day, crime and oil, which was discovered in commercial quantities in 2005, provided the basis for the disagreement. In response to spiralling crime, the Belize Constitution (Sixth Amendment) Bill proposed to derogate from the guaranteed right of liberty of the person by detaining persons for up to seven days where such persons are suspected of committing or likely to commit defined serious crimes.[986] It also proposed to derogate from the right not to be deprived of property as it related to mineral rights.[987] Could a parliament which had the requisite majority amend the Constitution to derogate from already existing rights? This was the high seas of constitutional interpretation. The waters, though not unchartered in the Commonwealth, were very unfamiliar. The Supreme Court of India had declared that the Parliament’s power to amend the Constitution by a special majority does not include the power to amend its basic structure or basic features.[988]However, the Belize Supreme Court did not go that far. But the amendments faced an obstacle. The Referendum Act provided that a referendum shall be held on �any amendment to Part II of the Constitution which derogates from the fundamental rights and freedoms guaranteed therein.’[989] To circumvent this, an amendment to the Referendum Act repealing that clause was tabled at the same time as the sixth amendment bill. The thinking no doubt was that the Referendum Bill would be enacted well before the constitutional amendment which required a 90-day delay before the second reading.
Before the Referendum (Amendment) Bill could be enacted, a group of registered voters sought mandamus against the Prime Minister to compel him to initiate a referendum on the amendment to the bill of rights. The Chief Justice granted an interim injunction prohibiting the presentation of the bill for the signature of the Governor General pending the trial.At the stage of final judgment, the Chief Justice found that the constitutional amendment bill if enacted, would derogate from the rights to protection of personal liberty and from deprivation of property and that clause 2(2) of the Referendum Act �was intended to protect against the amending powers by a cyclical majority’ and without it �no fundamental right or freedom.would be immune from alteration or derogation.’[990] He concluded that:
.in introducing the two bills on the same day, there was a clear attempt to remove from consideration or to deny an opportunity the electorate of Belize to have a say on the proposed changes to. the Belize Constitution.it does not make one whit of a difference that the statutory requirement of a referendum on such a proposed constitutional change may be repealed or abolished.[991]
He lifted the injunction, declined to order mandamus against the Prime Minister, but declared that a referendum should be held on the relevant clauses of the constitutional amendment bill.
The decision to injunct the amendment to the Referendum Act, an ordinary piece of legislation which was not itself unconstitutional appears untenable. But for the interim injunction, the amendment to the Referendum Act would have gone ahead, removing the basis for the judicial review action. The decision of the Chief Justice was affirmed on appeal.[992] The Privy Council confirmed the decision of the courts below that the Referendum Act made provision for referenda to serve an advisory or consultative purpose.[993] It imposed an obligation that could be enforced by proceedings for judicial review, but did not impose a fetter on the legislative process. The Privy Council held that the requirement for a consultative or advisory referendum did not alter the Constitution. The Board also ruled that the obligation to hold a referendum in relation to the proposed Sixth Amendment of the Constitution did not survive amendments made to the Bill on the second reading. Given this ruling, the Board deemed it unnecessary to decide the effect of the Referendum (Amendment) Act on the obligation to hold a referendum.
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