More shenanigans at the top of BTL and the Government Of Belize…
Chief Justice Abdulai Conteh returned to his courtroom this week and the first bomb he dropped was on Utilities Minister Ralph Fonseca. In an explosive judgment issued today, Conteh says Fonseca acted unconstitutionally in August of 2005 when he signed into law a statutory instrument which nullified BTL’s Articles of Association.
At the time, it was designed to strip Jeffrey Prosser of the rights to the special share and to two seats on BTL’s Board of Directors. It was statutory instrument 109 of 2005 and it said: “the special share is unlawful, and the rights flowing from it of BTL’s Articles of Association are of no effect.” It continued: “a copy of the amended Articles of Association has been filed by the Minister with the registrar of companies.” That effectively threw out BTL’s Articles and put in a new one, by the force of Fonseca’s executive decree. But most importantly for Fonseca, it stripped Jeffrey Prosser of his directors on the board – which then allowed Ashcroft to appoint all eight.
Well in today’s judgment, the CJ says that Fonseca’s statutory instrument was, “incompatible with the constitution of Belize.” In his judgment, Conteh finds that Fonseca arrogated unto himself, the powers of the PUC, and this, the Chief Justice found was: “an impermissible combination of legislative, executive and judicial powers.” Not only does it blur the separation of powers, the Chief Justice goes on to say that Fonseca’s SI is inconsistent with the constitutional protection against the arbitrary deprivation of property.
And, Conteh also frowns on another Fonseca SI, number 108, which seeks to vary the time period to be included in a court ordered review of the affairs of BTL. At the union’s request, the court had declared that BTL’s affairs from 2001 to 2005 should be reviewed – thus including Ashcroft’s tenure. But Fonseca’s SI changed the date on that order to 2004 to 2005 – thus bringing focus on the Prosser year.
So, with all that, the Chief Justice declares that the special share that Fonseca’s SI sought to get rid of, is fully restored, that the directors who were removed along with it, Jeff Prosser and Bobby Lubana were wrongly removed, that BTL’s original Articles of Association are back in effect, and because of all this, the general meeting that BTL held on 30th September 2005 is now declared unlawful. For good measure, the CJ also restores the inspection period back to the four years between 2001 to 2005.
And, as for the argument made by Ashcroft’s attorneys that his company made huge investments and loaned money on the strength of the Fonseca S.I., the Chief Justice says, “I can only express sympathy for their predicament.” Cold…..but that’s what it is tonight, and now, presumably, Ashcroft could tell the government that he invested and loaned US$37 million on the strength of its legislation, and without that…well, government could be the one left holding a very expensive bag.
Apart from raising that possibility, the judgment sets askew the entire balance of power on BTL’s Board of Directors. With the judgment, Prosser should have four directors of the 8 and the chairmanship, meaning that four of Ashcroft’s directors would have to go home.