Belize, Caribbean Court of Justice, Attorney General of Belize v. Phillip Zuniga and Ors [2014] CCJ 2 (AJ)

• Subject Matter: Separation of powers,Mandatory minimum sentences,Protection of the law,Right to property

1. Identification of the Sentence

Belize, Caribbean Court of Justice, Attorney General of Belize v. Phillip Zuniga and Ors [2014] CCJ 2 (AJ).

2. Abstract

This appeal by the appellant and cross-appeal by the respondents, concern the constitutionality of two pieces of

amendment legislation which were enacted by the Parliament of Belize to deal with contempt of court. The

Amendment Acts created the offence of knowingly disobeying or failing to comply with an injunction and prescribed

severe penalties for the offence including mandatory minimum penalties. The respondents alleged that the legislation

was passed specifically to target them and to prevent them from enforcing their arbitral award judgment against the

Government, and that various parts of the legislation violated the Constitution. The Caribbean Court of Justice (CCJ)

held that there was nothing in the legislation that was specific to the respondents. However, the CCJ held that the

mandatory minimum sentences were grossly disproportionate, inhuman, and violated section 7 of the Constitution.

3. Facts

The case arises out of a dispute between the Government of Belize and the respondents related to a 2005

Accommodation Agreement with Belize Telemedia Limited (“Telemedia”). When the Prime Minister of Belize

repudiated the Agreement, Telemedia invoked an arbitration clause in the Agreement and was awarded damages

against the Government. The Prime Minister stated publicly that he would never pay the award and the Government

obtained an injunction from Belize’s High Court restraining enforcement of the award.

This appeal by the appellant and cross-appeal by the respondents, concerns the constitutionality of the Supreme Court

of Judicature (Amendment) Act and the Supreme Court of Judicature (Amendment) No. 2 Act, which were enacted

by the Parliament of Belize to amend the Supreme Court of Judicature Act. The Amendment Acts added section

106A, which dealt with contempt of court. Section 106A created the offence of knowingly disobeying or failing to

comply with an injunction, particularly an anti-arbitration injunction, and prescribed severe penalties for the offence

including mandatory minimum penalties.

The respondents alleged that the legislation was passed specifically to target them and to prevent them from enforcing

their arbitral award judgment, that the National Assembly passed the Amendment Acts for an improper purpose and

thus breached section 68 of the Constitution of Belize, that the legislation violated the principle of the separation of

powers, that the harsh mandatory minimum sentences violated the Constitution, and that their rights to the protection

of the law and to property had been breached.

The CCJ held that there was nothing in the legislation that was specific to the respondents nor to their specific

proceedings. The National Assembly was best equipped to assess and legislate what it considered to be suitable for

Belizean society and so the legislation was not enacted for an improper purpose, and that the separation of powers

was not breached by the legislation as there were additional safeguards. However, the CCJ held that the mandatory

minimum sentences were grossly disproportionate, inhuman, and violated section 7 of the Constitution, and that

section 106(A)(5) contravened the section of the Constitution of Belize which dealt with the protection of the law

and that this section was therefore invalid and void in its entirety. Finally, the CCJ held that there was nothing

inherently unconstitutional with the courts being given the power to restrain an abuse of legal or arbitral processes

or to vacate arbitral awards. The CCJ therefore ordered that both the appeal of the appellants and the respondent be

dismissed.

4. Decision

The issues before the Caribbean Court of Justice (CCJ) were i) whether the legislation breached the principle of the

separation of powers because it was meant to target the respondents; ii) whether the legislation was enacted for an

improper purpose and thus a breach of section 68 of the Constitution of Belize; iii) whether the legislation breached

the separation of powers principle because it introduced a harsh special regime that could be instituted by the

Attorney General; iv) whether the mandatory minimum sentences prescribed were draconian and violated section 7

of the Constitution which barred inhuman and degrading punishment or treatment; v) whether the right to the

protection of the law in section 6 of the Constitution was violated with the reversal of the burden of proof and

questions of notice and service; and vi) whether sub-section 8 constituted a breach of the right to property under the

Constitution.

On the first issue of whether the legislation violated the principle of the separation of powers because it was meant

to target respondents, the CCJ held that there was nothing in the legislation that was specific to the respondents nor

to their specific proceedings and rejected the claim of the violation of the separation of powers. The CCJ held that

there was nothing in the legislation that directed the courts on how to deal with particular cases and so the Parliament

was not attempting to improperly control the judiciary.

Concerning the second issue of whether the legislation was enacted for an improper purpose, the CCJ held that the

National Assembly was best equipped to assess and legislate what it considered to be suitable for Belizean society

and so the legislation was not enacted for an improper purpose. As such, the legislation fell within the broad ambit

of legislation which was for the peace, order, and good government of Belize and the National Assembly was entitled

to make laws along the lines of section 106(A), subject to the Constitution.

On the third issue of whether the legislation breached the separation of powers because it instituted a harsh regime

that could be instituted by the Attorney General, the CCJ held it did not. The legislation extended the power to make

a complaint, not only to the Attorney General but also to an affected party and the police. The Director of Public

Prosecutions (DPP) was then obliged to make an independent decision as to whether to proceed. With those

safeguards, the separation of powers was not breached by the legislation.

Concerning the fourth issue on whether the mandatory minimum sentences violated section 7 of the Constitution

which barred inhuman and degrading punishment or treatment, the CCJ held that the sentences were grossly

disproportionate, inhuman, and violated section 7. The fees were well above what the average Belizean could pay,

and the imposition of 5-years of imprisonment was disproportionate. The penalties bore no reasonable relation to the

scale of penalties imposed by the Belize Criminal Code for far more serious offences and was therefore also arbitrary.

By majority, the CCJ therefore held that the mandatory minimum sentences be severed from section 106(A)(3) as

well as the sections which depended on their existence.

On the fifth issue of whether the reversal of the burden of proof and the notices violated the protection of the law

under section 6 of the Constitution, the CCJ held section 106(A)(5) the Constitution of Belize which dealt with the

protection of the law and was therefore void in its entirety. The CCJ, however, found no violations regarding the

notice and service requirements of the section. The Court reiterated its position in earlier cases that the right to equal

protection of the law was so broad and pervasive that it would be difficult to encapsulate it in its entirety. Section

106(A)(5) was extensive and vague and went close to legislating guilt by association and so was invalid in its entirety.

Concerning the final issue whether the right to property under sections 3(d) and 17(1) of the Constitution were

breached, the CCJ held that they were not. The legislation permitted the courts to exercise a power but that did not

oblige the court to use the power provided nor to use it indiscriminately. There was nothing inherently

unconstitutional for the courts to be given the power to restrain an abuse of legal or arbitral processes or to vacate

arbitral awards.

Based on the above, the CCJ held that there was nothing in the legislation that was specific to the respondents nor to

their specific proceedings, the National Assembly was best equipped to assess and legislate what it considered to be

suitable for Belizean society and so the legislation was not enacted for an improper purpose, and that the separation

of powers was not breached by the legislation as the DPP’s oversight was an additional safeguard. Further, the CCJ

held that the reversal of the burden of proof in section 106(A)(5) contravened the Constitution of Belize which dealt

with the protection of the law and was therefore invalid and void in its entirety, and finally that there was nothing

inherently unconstitutional for the courts to be given the power to restrain an abuse of legal or arbitral processes or

to vacate arbitral awards. The CCJ therefore ordered that both the appeal of the appellants and the respondent be

dismissed.

5. Concurring Judgment of The Honourable Justices Wit and Anderson

Justices Wit and Anderson agreed with the judgment of the Court. They, however, disagreed with what was to be

done with the Amendment Acts. They held that instead of severing the invalid sections, the entire Amendment should

be struck down leaving a clear slate for the National Assembly to enact legislation dealing with disobedience to court

orders that complied with the Constitution.

6. Jurisprudence

 Belize, Caribbean Court of Justice, British Caribbean Bank Ltd v The Attorney General of Belize [2013] CCJ

4 (AJ), (2013) 82 WIR 63

 Ceylon, Judicial Committee of the Privy Council, Liyanage v R [1967] 1 AC 259

 Trinidad and Tobago, Judicial Committee of the Privy Council, Thomas v Baptiste [2000] 2 AC 1; (1998) 54

WIR 387

 Belize, High Court, Bowen v The Attorney General Belize, Claim No. 445 of 2008, decided 13th February

2009

 Ali v R [1992] 2 AC 93

 Canada, Supreme Court, R v Smith (Edward Dewey) [1987] 1 SCR 1045

 South Africa, High Court, State v Gibson 1974 (4) SA 478 (A)

 Barbados, Caribbean Court of Justice, A.G. of Barbados v Joseph & Boyce [2006] CCJ 3 (AJ)

 Belize, Judicial Committee of the Privy Council, Vasquez v R; O’Neil v R [1994] 1 WLR 1304; 45 WIR 103

 Ceylon, Judicial Committee of the Privy Council, Jayasena v. R [1970] 1 All ER 219

 United Kingdom, House of Lords, Sheldrake v DPP [2005] 1 AC 264

 United Kingdom, House of Lords, Westminster City Council v Croyalgrange Ltd [1986]2 All ER 353

 Huckerby v Elliot [1970] 1 All ER 189

 Mauritius, Judicial Committee of the Privy Council, Aubeeluck v The State [2011] 1 LRC 627; [2010] UKPC

13

 Canada, Supreme Court, R v Ferguson [2008] 1 SCR. 96

 Namibia, High Court, State v Vries [1997] 4 LRC 1

 Canada, Judicial Committee of the Privy Council, Attorney-General for Alberta v. Attorney-General for

Canada [1947] A.C. 503

 United States, Supreme Court, Regan v Time, Inc (1984) 468 U.S. 641

 Canada, Supreme Court, Schachter v Canada [1992] 2 SCR 679

 Mauritius, Supreme Court, Philibert v State 2007 SCJ 274

 Mauritius, Supreme Court, Joosub v State 2008 SCJ 318

 United Kingdom, House of Lords, Pepper (Inspector of Taxes) v Hart [1992] UKHL 3

 United Kingdom, Court of Appeal, R v Phelps [2010] 2 Cr. App. R. (S) 1

 United Kingdom, Court of Appeal, R v Adewunmi [2008] Cr. App. R (S) 52

 United Kingdom, Court of Appeal, R v Montgomery (1995) 16 Cr. App. R (S) 274

 Belize, Judicial Committee of the Privy Council, Reyes v R [2002] UKPC 11, [2002] All ER (D) 149

 Jamaica, Judicial Committee of the Privy Council, Hinds v The Queen [1976] 1 All ER 353

 Ireland, Supreme Court, Maher v Attorney General 1973] IR 140

 Trinidad and Tobago, Court of Appeal, Trinidad Island-Wide Cane Farmers’ Association Inc. & Attorney

General v. Prakash Seereeram (1975) 27 WIR 329

 Jamaica, Judicial Committee of the Privy Council, Independent Jamaica Council for Human Rights (1998)

Ltd v Marshall-Burnett [2005] 2 AC 356, [2005] 2 LRC 840

7. Key words

 Separation of powers

 Mandatory minimum sentences

 Protection of the law

 Right to property