[2010] UKPC 7

Privy Council Appeal No 0091 of 2009

JUDGMENT

The Prime Minister of Belize

The Attorney General of Belize
v
Alberto Vellos
Dorla Dawson
Yasin Shoman
Darrell Carter

From the Court of Appeal of Belize

before

Lord Phillips
Lady Hale
Lord Mance
Lord Collins
Lord Clarke

JUDGMENT DELIVERED BY
Lord Phillips
ON

24 March 2010

Heard on 18 and 19 January 2010

 Appellant Respondent
Louis M. Young S.C. Lisa Shoman SC
Dr Lloyd Barnett
(Instructed by Charles (Instructed by Shoman
Russell LLP ) Law )
LORD PHILLIPS:

Introduction

1. Independence Day for Belize was 21 September 1981. On that day Belize
became an independent State in accordance with the provisions of the Belize Act
1981. Section 2 of that Act made provision for a Constitution of Belize (“the
Constitution”) to be provided by Order in Council. Part II (sometimes referred to as
Chapter II) of the Constitution sets out the fundamental rights and freedoms to which
everyone in Belize is entitled. Section 69 of the Constitution provides the manner in
which the National Assembly is empowered to alter the Constitution.

2. The Referendum Act 1999 introduced a requirement that a referendum be held

on, inter alia, “any amendment to Chapter II of the Constitution which derogates from
the fundamental rights and freedoms guaranteed therein”. The Board will refer to the
referendum so required as a “Part II referendum”. The Referendum Act was not
passed according to the special requirements applicable to legislation which altered
the Constitution (see below).

3. On 25 April 2008 the Government introduced the Belize Constitution (Sixth

Amendment) Bill (“the Amendment Bill”) which, in its original form, made very
significant derogation from some of the fundamental rights and freedoms in Part II of
the Constitution. On the same day the Government introduced the Referendum
(Amendment) Bill. This removed from the Referendum Act the requirement to hold a
Part II referendum.

4. On 9 May 2008 the four respondents, each of whom is a citizen of Belize, filed
a Notice of Application for permission to apply for judicial review in order to seek a
declaration that the Prime Minister had acted in breach of the Referendum Act by
failing to request the Governor- General to issue a Writ of Referendum and an order
of mandamus requiring him to do so. On 16 May 2008 Chief Justice Conteh granted
the application for permission to seek judicial review and at the same time granted an
interim injunction restraining the Attorney General from taking steps to obtain the
Governor-General’s assent to the Referendum (Amendment) Bill.

5. The respondents succeeded both before the Chief Justice and in the Court of
Appeal to the extent described subsequently in this Advice. The principal contention
advanced by the appellants, being the Prime Minister and the Attorney General of

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Belize, both below and before the Board, is that the requirement in the Referendum
Act to hold a Part II referendum was of no effect in law in that it purported to alter the
Constitution. If that submission does not succeed, difficult issues arise as to the effect
of the Referendum Act having regard to the complex series of events that have taken
place since the respondents applied for judicial review.

The Constitution

6. Section 2 of the Constitution provides that the Constitution is the supreme law
of Belize and that, if any other law is inconsistent with it, it is, to the extent of the
inconsistency void.

7. Two of the fundamental rights and freedoms protected by Part II are

particularly relevant. The first is the right to personal liberty protected by section 5.
That section provides in particular that a person arrested or detained must be informed
of the reason for this, be given access to a lawyer, be informed of his rights, be
entitled to the remedy of habeas corpus (subsection 2) and must be brought before a
court within 48 hours (subsection 3).

8. The second right is the right to ownership of property protected by section 17.
This prohibits, subject to exceptions, the compulsory deprivation of property save
under a law which provides for compensation and provides access to the courts to
challenge the deprivation.

9. Part IV of the Constitution is concerned with the Governor-General. Section 34

provides that in the exercise of his functions he shall act in accordance with the advice
of the Cabinet or a Minister save where (inter alia) he is required by the Constitution
or any other law to act on his own deliberate judgment.

10. Part VI of the Constitution is concerned with the Legislature. This consists of
the National Assembly, which is comprised of a House of Representatives and a
Senate. Section 70 provides for the making of Standing Orders to regulate
proceedings. Under these Bills receive three readings. Provided a Bill is passed by the
House and agreed to by the Senate, or passed by the Senate and agreed to be the
House, the Clerk of the House is required “as soon as possible” to present the Bill to
the Governor-General for his assent. Section 81(2) of the Constitution provides that
“When a Bill is submitted to the Governor-General for assent in accordance with the
provisions of this Constitution he shall signify that he assents or that he withholds
assent thereto.” By section 81(3) upon the assent of the Governor-General a Bill
becomes law.

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11. Section 69 provides that to be valid a Bill to alter Part II of the Constitution
cannot be submitted for a second reading until 90 days have passed from its
introduction. Furthermore it has to be supported by at least three-quarters of the House
of Representatives on its third reading. A Bill to alter any other of the provisions of
the Constitution requires a two-thirds majority of the House of Representatives on its
third reading. In either case a certificate of compliance has to be signed by the
Speaker.

The Belize Constitution (Sixth Amendment) Bill

12. The relevant amendments in the Amendment Bill in its original form were to
sections 5 and 17 of the Constitution. Clause 2 made amendments to section 5. These
added to the list of laws under which persons could be detained laws making
“reasonable provisions for the protection of children from engaging in criminal
activities or other anti-social behaviour” and laws “relating to the detention of persons
who are suspected on reasonable grounds of being involved in the commission of, or
being likely to commit, a serious crime”. Particularly significant was an amendment
which removed the protections provided by subsections (2) and (3), which the Board
has summarised in paragraph 7 above, to these persons, albeit that those detained on
suspicion of serious crime could only be detained for an initial period of 7 days,
subject to extension for a further period of one month on a court order made on an ex
parte application.

13. Clause 3 amended section 17 to remove specified items from the protection
against compulsory deprivation of property without compensation and access to a
court:

“Subsection (1) of this section does not apply to petroleum, minerals and
accompanying substances, in whatever physical state, located on or
under the territory of Belize (whether under public, private or
community ownership) or the exclusive economic zone of Belize, the
entire property in and control over which are exclusively vested, and
shall be deemed always to have been so vested, in the Government of
Belize:”

This was subject to the following proviso (“the proviso”):

“Provided that the Government may by a contract for the prospecting

and production of petroleum or minerals enable a contractor to acquire
property in, title to, or control over any petroleum or minerals found in
Belize, and in every such case, the provisions of subsection (1) of this

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 section shall apply to all petroleum or minerals which may come into the
possession or control of a contractor by virtue of such contract.”

The Referendum Act 1999 and the Referendum (Amendment) Act 2008

14. The relevant sections of the Referendum Act 1999 provide as follows:

“2.(1) Without prejudice to any law which provides for a referendum to

be held on any specific issue, the National Assembly may by resolution
passed in that behalf declare that a certain issue or matter is of sufficient
national importance that it should be submitted to the electors for their
approval through a referendum.

(2) Notwithstanding subsection (1) above, a referendum shall be held on

the following issues: -

(a) any amendment to Chapter II of the Constitution which

derogates from the fundamental rights and freedoms
guaranteed therein; and

(b) any proposed settlement with Guatemala for resolving

the Belize/Guatemala dispute.

3.(1) Within thirty days of the passing of the resolution by the National
Assembly pursuant to section 2 above (or where a law provides for the
holding of a referendum on a specific issue, within thirty days of a
request made to that effect by the Prime Minister), the Governor-
General shall issue a Writ of Referendum in a form similar to the Writ
of Election in the Fifth Schedule to the Representation of the People
Act, with such modifications and adaptations as are necessary to satisfy
the provisions of this Act, to the returning officers of the electoral
divisions of Belize, or of the particular district or area thereof, as the
case may be.

(2) The day named in the Writ for the holding of a referendum shall not
be less than thirty days after the issue of the Writ.

(3) The Writ of Referendum shall specify whether the referendum shall
be held in the whole of Belize or in any specific district or area of
Belize.”

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15. The Referendum (Amendment) Act 2008 Act was passed in circumstances
which the Board will shortly describe. It has left unchanged the provisions relating to
the settlement of the Belize / Guatemala border dispute, but otherwise radically
amended section 2 of the 1999 Act. It has removed the requirement for a referendum
in relation to amendment of Part II of the Constitution. It provides for a referendum
where the National Assembly or 10% of the electorate identify “a certain issue or
matter [as] of sufficient importance that it should be submitted to the electors for their
views through a referendum”.

The Interpretation Act

16. Section 28(1)(c) is relevant to some of the issues raised by this appeal. It
provides that where any Act repeals any other enactment, unless the contrary intention
appears, the repeal shall not “affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so repealed”.

The parallel litigation

17. It seems that in commencing judicial review proceedings the respondents were
acting out of public spirit, being concerned at the proposed restrictions of fundamental
rights of the citizens of Belize. It is not suggested that they had any interests in or
connected with oil and minerals. There were others, however, who were particularly
concerned at the effect of the amendments to section 17 on alleged private or
communal rights in relation to oil and minerals. They commenced two actions, which
were heard together, in which they made a more direct challenge to the proposed
amendments. The actions are: Barry M Bowen v Attorney General of Belize (Claim No
445 of 2008) and Belsize Land Owners Association Limited and others v Attorney-
General of Belize (Claim No 506 of 2008). The Board will describe these proceedings
as “the Bowen Action”. The claimants in the Bowen Action sought declarations that
the Amendment Bill was unlawful inasmuch as the amendments to section 17
infringed fundamental constitutional rights.

A chronology of events

18. On 10 April 2008 the Prime Minister publicly announced the proposal to
amend the Constitution and the Referendum Act. The two Bills had their first reading
on 25 April and the House of Representatives referred the Amendment Bill to the
Constitution and Foreign Affairs Committee (“the Committee”). The Committee
proceeded to conduct extensive consultation throughout Belize. The Referendum
(Amendment) Bill had its second reading on 14 May. It was passed by the House of
Representatives with a two-thirds majority. By 25 May it had completed its passage
through the National Assembly. It could not, however, be presented to the Governor-

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General for his assent by reason of the interim injunction granted by the Chief Justice
on 15 May. The respondents’ claim for judicial review was heard by the Chief Justice
on 30 June. On 7 July claim No 445 was filed in the Bowen Action. On 28 July the
Chief Justice gave judgment in favour of the respondents in the present Action (see
below). He discharged the interim injunction that he had granted on 15 May. On 30
July the Referendum (Amendment) Bill received the assent of the Governor-General
and became law.

19. The Committee reported on 22 August. It recommended that clause 2 of the

Amendment Bill be deleted in its entirety. It further recommended that the proviso be
deleted from clause 3. On 22 August the Amendment Bill had its third reading and
was passed by a three quarters majority, subject to the amendments recommended by
the Committee. The amended clause 3 became clause 2. On 26 August it was passed
by the Senate. It did not, however, receive the assent of the Governor-General. The
Board understands that this was because it was not considered proper to present it to
him having regard to the challenges that had been made in this Action and in the
Bowen Action.

20. On 16 October the Court of Appeal sat to hear the appeal in this Action. Ten
days later, on 26 October, the Chief Justice sat to hear the Bowen Action. He gave
judgment in that Action on 13 February 2009 (see below), ruling in favour of the
claimants. On 27 March the Court of Appeal gave judgment in this Action, dismissing
the appeal (see below).

21. Between 15 and 19 June the Court of Appeal sat to hear the appeal in the
Bowen Action, adjourning this part heard. On 9 October the House of Representatives
reconsidered the Amendment Bill and amended it to the extent of inserting a new
proviso to the amended section 17, as follows:

“Provided that nothing in this subsection shall affect the right of the
owner of any private land beneath which any petroleum deposits are
located to receive royalty from the Government, as provided in the
Petroleum Act and the regulations made thereunder, existing at the
commencement of the Belize Constitution (Sixth Amendment) Act.”

22. On 26 October the Court of Appeal made an order in the Bowen Action, the
material part of which was as follows:

“THIS APPEAL having come on for hearing on 15th, 16th, 17th and 19th
days of June 2009, on which days the Appellant made submissions to
the Court on its Appeal, AND on the 26th day of October 2009

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 AND the National Assembly having, on the 13th October 2009, amended
the Belize Constitution (Sixth Amendment) Bill 2008

IT IS THIS DAY ORDERED as follows:

1. The Appeal is dismissed.

2. Reasons for the Court’s decision will be given at a

later date.”

The judgment of Chief Justice Conteh in this Action.

23. At the hearing before the Chief Justice there was a degree of common ground
between the parties. First they appear to have been agreed that the obligation to hold a
referendum was for the purpose of consulting the electorate. Neither side suggested
that a favourable vote by the electorate was a condition precedent to the right of the
National Assembly to amend the Constitution. Secondly the parties were in broad
agreement as to when the Prime Minister’s obligation to request a referendum arose
on the facts of this case. The respondents contended that it arose when the Prime
Minister announced his intention to amend the Constitution on 10 April 2008, or at
latest when the Bill was introduced on 25 April. The appellants contended that the
latter was the relevant date. The parties appear to have been agreed that it was implicit
that, until a referendum had been held the Amendment Bill could not be presented to
the Governor-General for his assent, although the precise nature of this implication
was not spelt out. That indeed was their position at the start of the hearing before the
Board. The fact that the Amendment Bill did not proceed through the legislative
process and to the Governor-General for assent suggests that this was a view that was
generally shared.

24. The Chief Justice observed at paragraph 17 of his judgment:

“The heart of the claimants’ case in these proceedings is that the attempt
to amend sections 5 and 7 of the Constitution without first holding a
referendum as required by section 2(2)(a) of the Referendum Act is
unlawful.”

That the Referendum Act purported to impose a fetter on legislation in this way was
the foundation for an argument on behalf of the appellants that that Act was
unconstitutional and therefore invalid. The Chief Justice summarised this argument at
paragraph 23 of his judgment:

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 “Ms. Young S.C. also submitted that in any event, section 2(2)(a) of the
Referendum Act was unlawful and unconstitutional in that it purports to
put an additional fetter on the legislative powers to change the
Constitution as provided for under section 69 of the Constitution. This
was so she argued, because subsections (3) and (5) of section 69 already
contain provisions regarding any changes to Schedule 2 of the
Constitution relating to the protection of Fundamental Rights and
Freedoms. Therefore, she further argued, the Referendum Act being an
ordinary act had to be passed in the manner prescribed in subsections (3)
and (5) in order to be valid.”

25. The Chief Justice was clearly in sympathy with the respondents. He held at
page 42 of his judgment:

“in my view, section 2(2)(a) of the Referendum Act was intended to

protect against the amending powers by a cyclical majority that is
inherent in section 69(3) of the Constitution. For by this provision any
political party with the necessary three-quarters majority in the House,
can repeal, modify or amend any of the provisions of the Constitution
relating to the Protection of Fundamental Rights and Freedoms. This
leaves these rights and freedoms to the vagaries of a General Election
and any resultant three-quarters majority a political party may be able to
garner, tempered only by the lapse of ninety days between the first
introduction of a bill to effect such alteration and the second reading of
that bill in the House, no fundamental right or freedom it would seem,
would be immune from alteration or derogation.”

26. The Chief Justice rejected the appellants’ submission that the Referendum Act
purported to impose a fetter on the legislative process and was therefore an invalid
attempt to alter the Constitution. He held that the duty to request a referendum did not
arise until after the legislative process was complete. He held at paragraph 53:

“In Belize, it is after an interval of ninety days after its first introduction
in the House and with the support of the votes of not less than three-
quarters of all the members of the House on its final reading can a bill
effecting any amendment to section 69 itself and any of the provisions
of Schedule 2 of the Constitution be lawfully regarded as altering or
amending any of these provisions. This, I find, is the material time when
the referendum requirement statutorily provided for in section 2(2)(a) of
the Referendum Act, comes into play. It is the final vote in the House
that determines whether or not the proposals in the bill will qualify as an
amendment. It is on this amendment that the Prime Minister is required
to request a writ of referendum from the Governor General who shall

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 issue it within thirty days of the request. I am therefore unable to accept
the contention of the claimants that it is prior to the legislative process
such as the introduction and first reading of the bill, that would engage
the referendum requirement. This is for the simple reason that until after
the first reading, following by an interval of not less than ninety days
before the second reading and on the final vote, of not less than three-
quarters of all the members of the House in support of the bill, would it
become an amendment. Until then, it is only a proposal or a bill whose
future may well be uncertain. But once the legislative process is over, if
successful, the bill becomes an amendment. It is to this amendment that
section 2(2)(a) of the Referendum Act is addressed.”

27. It does not appear that the Chief Justice considered that the presentation of a
Bill to the Governor-General and his assent to the Bill formed part of the legislative
process. It further seems implicit that the Chief Justice shared the views of the parties
that the Governor-General could not properly be requested to assent to the Bill until
the referendum had been held.

28. The Chief Justice held at paragraph 66 that the appropriate relief was to
declare:

“that on the conclusion of the legislative processes on clauses 2 and 3

of the Sixth Constitutional Amendment Bill 2008, these clauses of the
said bill should be put to a referendum for the electorate to have their
say.”

29. How was it appropriate to grant the respondents this prospective declaration in
proceedings that they had commenced right at the start of the legislative process? The
answer appears to lie in the following passage from paragraphs 58 and 59 of the Chief
Justice’s judgment:

“I find that in introducing the two bills on the same day, there was a
clear attempt to remove from consideration or to deny an opportunity to
the electorate of Belize to have a say on the proposed changes to
sections 5 and 17 of the Belize Constitution. This I find was unavailing
because the relevant law provides for a referendum on any relevant
amendment. And the claimants and indeed, the electorate, had a
legitimate expectation that in conformity with the relevant law at the
time a referendum on the amendments would be held.”

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30. The Chief Justice observed that the Referendum (Amendment) Bill contained
helpful provisions relating to the mechanics of the referendum and, “accordingly”
discharged the interim injunction granted on 15 May.

The judgment of the Chief Justice in the Bowen Action

31. The Bowen Action was heard after the amendments to the Constitution
proposed by the Amendment Bill had themselves been amended on the third reading
in accordance with the recommendations of the Committee. The proviso to the
amendment to section 17 of the Constitution had been deleted. The claimants objected
to the amendment in its revised form, contending that its effect was to infringe
property rights and remove access to the courts in respect of such infringement. The
Attorney-General challenged this contention, arguing that the amendment was merely
declaratory as, under earlier statutes, all petroleum rights and minerals had been
vested in the Government and licences to prospect for petroleum had been granted on
this basis. The Chief Justice did not accept this submission. He was concerned, in
particular, that the amendment might negate community ownership rights under Maya
customary land tenure. He was further disturbed that the amendment declared that
petroleum should be deemed “always to have been … vested in the Government”. He
observed that this would have the effect of overriding royalty rights of private
landowners, because these had been conferred by section 31(4) of the Petroleum Act
on the basis that, prior to the enactment of that Act, they had the benefit of petroleum
rights in respect of their land.

32. It is not necessary to summarise further the reasoning of the Chief Justice. It
suffices to note that he granted the following declarations:

“I find and declare that the enactment of clause 2 as it stands,

particularly its purported disapplication of section 17(1) of the
Constitution to petroleum and minerals, would not be in consonance
with the Constitution. In particular, I declare that it would offend those
parts of the Preamble of the Constitution regarding the ownership of
private property; section 3(d) of the Constitution enjoining arbitrary
deprivation of private property; section 6(1) of the Constitution
guaranteeing equal protection of the law, implicit in which is unimpeded
access to the Courts; and section 17 (1) itself which though not
prohibiting the policy of clause 2 vesting petroleum and minerals in the
Government of Belize, does not afford access to the Courts to test the
validity of that vesting and to determine the interests, if any, of the
claimants and to have compensation ordered and the enforcement of that
compensation.

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 I declare as well that the enactment of clause 2 with its purported
exclusion of section 17(1) rights will offend and upset the basis structure
of the Constitution of Belize regarding the principle of the separation of
powers and its undoubted concomitant, the rule of law and the
protection of fundamental rights especially those relating to the
ownership and protection of property from arbitrary deprivation.”

The Judgment of the Court of Appeal in this Action

33. Before the Court of Appeal, Mottley P, Sosa and Carey JJA, the appellants
attacked the judgment of the Chief Justice on alternative bases. They submitted that if
the Chief Justice was correct in holding that the obligation to request a referendum
only arose on conclusion of the legislative process, no obligation had arisen when the
respondents commenced proceedings and their claim should not have succeeded.
Alternatively, if the obligation had arisen when the Bill was introduced, they relied
upon the argument that the Referendum Act was an unconstitutional fetter on
legislation.

34. In his judgment the President held that the referendum required by the
Referendum Act was not part of the legislative process. It was part of a consultative
process designed to ascertain the approval of the electorate to proposed amendments
to the Constitution (paragraph 23). There was nothing to prevent the Government
from proceeding with a measure that had not received the approval of the electorate
other than the political consequences at the time of the next election (paragraph 26).
The Act required a referendum to be held before a Bill intended to amend the
Constitution was introduced to the National Assembly (paragraph 29). This had not
been done. It followed that the Bill had to be submitted to the electorate at the late
stage that had been reached. The situation was not ideal, but under the Referendum
Act the electorate was entitled to be afforded the opportunity to state whether they
approved of the proposed amendments (paragraph 32).

35. Sosa JA agreed with the judgment of the President.

36. In paragraph 43 of his judgment Carey JA questioned the Chief Justice’s

conclusion that the obligation to hold a referendum did not arise until the conclusion
of the legislative process. He observed “I would have thought that the presumed
raison d’etre of a referendum is to garner input from the populace to inform the
proposed amendment”. In the absence of a challenge to the finding he did not,
however, overrule it. He held that the appellants had had a legitimate expectation that
a referendum would be held and had an accrued right to seek redress for “an
anticipated or threatened disappointment of that expectation” when they filed
proceedings on 9 May 2008.

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37. The Court of Appeal ordered that the orders of the Chief Justice be affirmed
and that:

“The proposed amendments contained in the Sixth Constitutional

(Amendment) Bill which are intended to amend the fundamental rights
and freedoms under the Constitution must now be submitted to the
electorate.”

38. The Court of Appeal made no mention of the fact that, after the Chief Justice
had given his judgment, the proposed amendments to the Constitution were
themselves radically amended, so as to delete entirely clause 2 of the Amendment
Bill, which had been the primary subject of the respondents’ attack. Nor did they
consider the effect of the Referendum (Amendment) Act. The President observed,
wrongly, that it did not appear that the Act had received the assent of the Governor-
General and added that at any rate it had not been enacted on 9 May when the
proceedings had been commenced. Nor did the Court of Appeal refer to the judgment
given on 13 February by the Chief Justice in the Bowen Action. It seems implicit in
some of the reasoning of the Court of Appeal that they assumed that the Bill would
not be presented to the Governor-General for his assent until after the referendum that
would be held as a result of their judgment.

Discussion

39. The series of events which the Board has described raise the following
questions:

i) What is the effect of the order of the Court of Appeal in the Bowen
Action?

ii) Was the Part II referendum required by the Referendum Act in its un-
amended form a fetter on the legislative process?

iii) Having particular regard to the answer to question ii), did the
requirement for a Part II referendum purport to alter the Constitution,
with the consequence that it was void?

iv) When did the obligation to request a referendum in relation to the

Amendment Bill arise?

v) What was the effect on the obligation to hold a referendum of the

amendments that were made to the Amendment Bill?

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 vi) What was the effect on the obligation to hold a referendum of the
passing of the Referendum (Amendment) Act?

vii) Should the Chief Justice have granted an interim injunction restraining
the obtaining of the Governor-General’s assent to the Referendum
(Amendment) Act?

viii) What is the object of this appeal?

ix) What relief should the Board recommend?

What is the effect of the Order of the Court of Appeal in the Bowen Action?

40. Counsel were not agreed on the circumstances in which the Court of Appeal
dismissed the appeal in Bowen at a stage when the appeal was part heard. Ms Young
SC, who appeared for the appellants on this appeal and also appeared for the
Attorney-General in the Bowen Action, told the Board that the Court of Appeal
concluded that the insertion of the new proviso to section 17 of the Constitution into
the Amendment Bill on 9 October 2009 rendered the appeal academic. She submitted
that the Court of Appeal was correct so to conclude as, once royalty rights had been
protected, the amendment to section 17 was no more than declaratory and was not
expropriatory. Thus the Amendment Bill no longer had any provision which, under
the un-amended Referendum Act, required a referendum.

41. Ms Shoman for the respondents was not able to agree this version of events.
She further submitted that, even with the new proviso, there remained private or
community interests in petroleum or minerals which were expropriated by the
Amendment Bill.

42. The Board has since been provided with a transcript of proceedings before the
Court of Appeal in the Bowen Action. This shows that the Court of Appeal dismissed
the appeal because the alteration to the Amendment Bill had rendered the appeal
academic. The Court of Appeal did not, however, express any view as to whether the
Amendment Bill in its new form was open to challenge. That question was not before
the Court. Equally it is clear that, in dismissing the appeal, the Court of Appeal was
declining to rule on whether or not the Chief Justice’s judgment was correct on the
issues before him. As a result of the insertion of the new proviso to section 17 of the
Constitution into the Amendment Bill the Court of Appeal concluded that those issues
had become moot. It follows that the question of whether the Chief Justice was right
or wrong remains unresolved. If he was right to rule that clause 2 of the Amendment
Bill, as it was before him, was unconstitutional, it seems likely that its predecessor,
clause 3, was unconstitutional for the same reason. It may be that the same was true of
the original clause 2. If so, the relevant parts of the Amendment Bill could have no

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effect in law and the issues that arise in relation to the referendum are academic. The
Board proposes, however, to disregard that possibility and to address those issues.

Was the Part II referendum required by the Referendum Act in its un-amended form a
fetter on the legislative process?

43. This question is relevant to the next question and, indeed, the two questions
need to be considered together. This is because a basic principle of statutory
interpretation requires the Referendum Act to be given an effect that is valid, rather
than void, insofar as this is possible.

44. A statutory requirement to hold a referendum in relation to proposed legislation

may be so drafted as to make the referendum a necessary step in the legislative
process. Independent Jamaica Council for Human Rights (1998) Ltd v Marshall-
Burnett and another [2005] UKPC 3; [2005] 2 AC 356 provides an example of such a
provision. Had the Referendum Act contained such a provision it would
unquestionably have purported to alter the provisions of the Constitution in relation to
legislation and would have been void for failure to comply with the requirements of
the Constitution for making such an alteration.

45. Neither party contended that the Referendum Act contained a provision of this
nature, and the Board agrees. The Referendum Act required a referendum in a number
of different circumstances, some of which did not involve legislation at all. On the
natural meaning of the Act the purpose of the referendum was only consultative or
advisory. Both the courts below so held, and they were right to do so.

46. It was, however, common ground that, under the un-amended Referendum Act,
the Amendment Bill could not properly be placed before the Governor-General for his
assent until a referendum had been held, and this view appears to have been generally
held. Were this view correct as a matter of law, the Board would have concluded that
the obligation to hold a referendum was just as much a fetter on the legislative process
as if the holding of a referendum was an integral part of the process, and that the
provision in the Referendum Act that required a Part II referendum to be held
purported to alter the Constitution and was, accordingly, void. The Board has not,
however, reached this conclusion. While the obligation to hold a Part II referendum
would necessarily be triggered by some stage of the amendment of the Constitution
Act, it was possible, as a matter of law, to treat the two processes as independent, so
that the process of amending the Constitution Act could proceed in the normal way,
whether or not a referendum was held and regardless of its result. This scenario is not
attractive, for those who drafted the Referendum Act plainly intended that relevant
legislative process should be informed by the views of the electorate. Nonetheless the
Board feels constrained to conclude that it was the true state of affairs, for the

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alternative would be to hold that the requirement to hold a Part II referendum was of
no effect at all. Under the Referendum Act the incentive to comply with the obligation
to hold a Part II referendum lay in the political fall-out that would follow disregard of
that obligation and the effect of proceedings such as those brought by the respondents
in this case. The obligation was, of course, one which in an appropriate case could be
enforced by proceedings for judicial review. The obligation did not, however, impose
a legal fetter on the legislative process.

Did the requirement in the Referendum Act for a Part II referendum purport to alter
the Constitution, with the consequence that it was void?

47. This question is partly answered by the Board’s answer to the previous
question. The question remains of whether the requirement for a consultative or
advisory referendum was one that purported to alter the constitution.

48. In the Board’s view the answer to this question is that it was not. There is a
difference in principle between requiring a referendum as part of the legislative
process and requiring a referendum which is no more than advisory. The result of the
referendum in the latter case imposes no obligation on the legislature. This conclusion
is supported by authority in the United States Supreme Court on the question whether
provisions in State law calling for referenda on proposed amendments to the United
States Constitution are compatible with the amendment provisions of the Constitution.
Article 5 of the federal Constitution provides that amendments must be ratified “by
the Legislatures of three-fourths of the several states, or by conventions in three-
fourths thereof, as the one or the other mode of ratification may be proposed by the
Congress….”

49. Hawke v Smith, 253 US 221 (1920) concerned the 18th amendment to the
United States Constitution introducing Prohibition. The Supreme Court decided that
an amendment to the Ohio constitution to require a referendum on Ohio’s ratification
of the Prohibition amendment was incompatible with Article 5 of the federal
Constitution.

50. Almost 60 years later a related question arose in relation to the Equal Rights
Amendment to the US constitution: Kimble v Swackhamer, 439 US 1385 (1978). In
1977 the Nevada legislature enacted legislation requiring the submission of an
advisory referendum, which expressly provided that it did not place any legal
requirement on the legislature, as to whether the Equal Rights Amendment should be
ratified by the Nevada legislature. Justice Rehnquist, sitting alone as a Circuit Justice
on an urgent application for an interim injunction to restrain the referendum, held that
the provision for a referendum was not inconsistent with the federal Constitution
because it was not binding.

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When did the obligation to request a referendum in relation to the Amendment Bill
arise?

51. One of the defects of the Referendum Act was that it did not supply an express
answer to this question. The answer falls to be implied by considering what is
necessary to give efficacy to the legislation. The Board agrees with the Court of
Appeal that the Chief Justice was wrong to hold that the referendum had to be held at
the end of the legislative process, bar the Governor-General’s assent. This solution
might have made sense if the Act had made the approval of the electorate a condition
precedent to the enactment of the constitutional amendment. It also solved the
problem of the effect of amendments to the provisions that were the subject of the
referendum in the course of or after the referendum. But it did not make sense where
what the Act required was a consultative referendum. As Carey JA put it there was
little to be gained by having a referendum when the amendment was a fait accompli,
this being akin to “closing the barn door after the horse had long gone”. The Board
does not, however, agree with the President that the obligation to hold a referendum
arose before the Amendment Bill was introduced into the National Assembly. It
would have been impractical, and imprecise, if an obligation to hold a referendum
could have been triggered by a mere proposal to amend the Constitution.

52. The Board considers that the least unsatisfactory answer to this question is that
the obligation to hold a referendum arose on 25 April 2008, when the Amendment Bill
was introduced and given its first reading. Under section 3 of the Referendum Act the
Governor-General had to issue a Writ of Referendum within 30 days of the Prime
Minister’s request for this. The section does not specify when the Prime Minister had
to make the request, but it was implicit that he should do so in time to enable the result
of the referendum to be known before the expiry of the 90 days that had to elapse
before the Amendment Bill could be given its second reading.

What was the effect on the obligation to hold a referendum of the amendments that
were made to the Amendment Bill?

53. Holding a referendum is a major and expensive exercise, akin to holding an

election. The problem with a mandatory obligation to hold a consultative referendum
into proposed legislation is that it does not readily accommodate the possibility of
changes to the proposed legislation in the course of the legislative process. A scheme
under which a referendum is held between the first and second reading of a Bill will
serve a useful purpose in that it will inform consideration of the Bill on its second
reading. But if the Bill is significantly amended in the course of the second reading,
the question then arises of whether a further referendum is required in respect of the

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amended bill. This was the problem that led the Chief Justice to hold that the
referendum did not have to be held until the conclusion of the legislative process.

54. The scheme of the Amendment Bill contemplates that the proposed
amendments to the Constitution will give rise to discrete issues to which the electorate
can give ‘yes’ or ‘no’ answers between the first and second reading of a Bill. It does
not cater for the possibility of amendments raising significant new issues after the
results of the referendum are known. Even less does the Amendment Bill contemplate
what occurred in this case, namely no referendum between the first and second
reading of the Bill and fundamental amendment to the Bill on the second reading.

55. In these circumstances it would be absurd to postulate that the obligation that
had existed to hold a referendum in respect of the Amendment Bill in its original form
subsisted after the Bill’s second reading, and neither party so submitted. The only
material part of the Amendment Bill which had survived was the proposed
amendment to section 17, but this itself had been amended by deletion of the first
proviso. The subsequent further amendment adding a new proviso to section 17 after
the Bill’s third reading served to make confusion more confounded. On one view, and
it seems at least possible that this was the view of the Court of Appeal in the Bowen
Action, all provisions derogating from fundamental rights and freedoms guaranteed by
the Convention had been amended out of the Amendment Bill.

56. The Board is satisfied that the obligation to hold a referendum in relation to the
alterations to the Constitution that were proposed by the Amendment Bill in its
original form did not survive the amendments that were made on the second reading.

What was the effect on the obligation to hold a referendum of the passing of the
Referendum (Amendment) Act?

57. If an obligation to hold a referendum persisted after the second reading of the
Amendment Bill, did it survive the passing into law of the Referendum (Amendment)
Act on 30 July 2008? By reason of section 28(1)(c) of the Interpretation Act the
answer is that the obligation persisted “unless the contrary intention appears”.

58. It appears to have been generally accepted that the intention of introducing the
Referendum (Amendment) Act was to remove the requirement to hold a referendum
in relation to the relevant proposals in the Amendment Bill. It may be that the Prime
Minister so stated in his announcement made on 10 April 2008 in respect of the
forthcoming legislation. The Board was not provided with any details of that
announcement. The intention may also have been implicit in the introduction of the
two Bills on the same day on 25 April and the consultation exercise that the
Committee immediately undertook. The first respondent asserted in paragraph 23 of

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his affidavit of 28 May, 2008, sworn in support of his application to seek judicial
review, that the proposed amendments to the Referendum Act, concurrent with the
proposed amendments to Constitution, evidenced the intention of the Prime Minister
to avoid holding a referendum.

59. It was no doubt to prevent the Prime Minister from evading the need to hold a
referendum that the respondents sought and obtained from the Chief Justice an interim
injunction restraining the obtaining of the Governor General’s assent to the
Referendum (Amendment) Bill.

60. It is, however, open to question how far it is legitimate to have regard to these
matters in deciding whether the Act, on its true construction, had retroactive effect. In
the light of the conclusions that the Board has set out in paragraph 56 it is not
necessary to resolve this issue and the Board does not propose to do so.

Should the Chief Justice have granted an interim injunction restraining the obtaining
of the Governor-General’s assent to the Referendum (Amendment) Act?

61. The Board suggested to Ms Shoman that it was not easy to identify any valid
basis for the interim injunction granted by the Chief Justice and she did not have a
ready answer, other than her clients’ anxiety to leave no stone unturned in their efforts
to prevent the derogation of fundamental constitutional rights. In the opinion of the
Board the Chief Justice should not have granted the interim injunction.

What is the object of this appeal?

62. The answer give by Mr Lloyd Barnett to this question was that the Government
wished to avoid the considerable expense of a referendum, as required by the Order of
the Chief Justice, which had been affirmed by the Court of Appeal. Ms Shoman, for
her part, accepted that the amendments that have been made to the Amendment Bill
have given the respondents most, if not all, that they were seeking to achieve when
they initiated these proceedings. She accepted that, in these circumstances there would
be no point in holding the referendum that the Chief Justice ordered in relation to the
Bill in its original form. She contended, nonetheless, that there remained aspects of the
Amendment Bill in its current form that would have given rise to an obligation to hold
a referendum under the Referendum Act, prior to the repeal of that Act. No attempt
was made, however, by the respondents to persuade the Court of Appeal to substitute
for the Order made by the Chief Justice an Order relating to the Amendment Bill in its
revised form and it would not be appropriate for the Board to comment on the merits
of such a course.

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What relief should the Board recommend?

63. For the reasons given the Board declares that the Prime Minister is no longer
under any obligation to request a Writ of Referendum that formed the subject of the
Order of the Chief Justice and, accordingly, will humbly advise Her Majesty that this
appeal should be allowed. Submissions in relation to costs should be submitted in
writing within six weeks of today.

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