Frank Edward Paco Smith Jr. v The Attorney General of Belize

• Jurisdiction: Belize
• Judge: Nabie J.
• Judgment Date: 08 August 2024
• Docket Number: CLAIM NO. 55 OF 2019
• Court: Supreme Court (Belize)

IN THE MATTER of the Constitution of Belize

AND

IN THE MATTER OF s. 1, s. 6, s. 90 and s. 95 of the Belize Constitution

AND

IN THE MATTER OF Schedule I of the Representation of the People Act, Cap 9

BETWEEN:

[1] Frank Edward Paco Smith Jr.

[2] Hubert Dennis Enriquez

[3] Paul Marcel Morgan

[4] William Maheia

[5] Godwin Bernard Sutherland

[6] Liston McKenzie

[7] Irvin Neal

[8] Antonio Giovanni De La Fuente

[9] Lloyd Armstrong Jones

[10] Roberto Antonio Lopez (As Registered Voters)

Applicants

and

[1] The Attorney General of Belize

[2] Chairman of The Elections and Boundaries Commission as and representing the Elections and Boundaries Commission

Respondents

[1] Lord Michael Ashcroft

Interested Party

CLAIM NO. 55 OF 2019

IN THE SENIOR COURTS OF BELIZE

IN THE HIGH COURT OF BELIZE

Appearances:

Mr. Arthur Saldivar for the Applicants

Ms. Samantha Matute for the Respondents

APPLICATION TO ENFORCE CONSENT ORDER

Nabie J.

1 Vox populi, vox Dei. Free and fair elections are important to any democracy as it is the foundation for a legitimate government. I have examined the evidence and oral submissions of the parties. There is a Consent Order and the parties are bound by it. It is my finding that the respondents have complied with the Consent Order. The application is therefore dismissed.

History of Proceedings

The Substantive Claim

2 The applicants in this matter filed constitutional proceedings alleging that Schedule 1 to the Representation of the People Act (ROPA) is unconstitutional and in breach of section 90 of the Constitution. Belize is divided into 31 electoral districts and, in accordance with section 90 of the Constitution, each electoral district as far as possible should have equal number of voters. The Elections and Boundaries Commission (EBC) is the public authority which makes recommendations to the National Assembly for redistricting. Schedule 1 to the ROPA provides the boundaries and the registered voters. The parties had agreed to have expert evidence in the matter and this was provided by the Sean P. Trende Report (the Expert Report). The applicants' claim was compromised by way of a consent order. They now seek to enforce that consent order. I will now provide the background on how the matter reached to this point.

In 2019 the applicants/claimants filed a fixed date claim form regarding the redivisioning of the electoral districts and sought constitutional relief pursuant to Rule 56 of the Supreme Court ( Civil Procedure) Rules for the following:

• “(1) “A declaration that given the current distribution of registered voters in Belize, the electoral divisions as defined in Schedule 1 of the Representation of the People Act run contrary to Section 1 of the Belize Constitution to the extent that it undermines the practice of democracy in Belize and/or is undemocratic;

• (2) A declaration that the Defendants have failed to make proposals for dividing Belize into electoral divisions which meet the requirements of the Constitution in breach of section 90 of the Constitution;

• (3) A declaration that the continued violation of Section 90(1)(a) is a violation of Section 6 of the Constitution;

• (4) A declaration that the Defendants are precluded by section 93 of the Belize Constitution from having resort to the electoral divisions as defined by Schedule 1 of the Representation of the People Act to conduct General Elections in Belize;

• (5) An order of mandamus compelling the defendants to make proposals to the National Assembly, pursuant to section 90 of the Constitution, for the distribution of eligible electors to be as equal as possible;

• (6) An injunction restraining the Defendants, whether by themselves or by their servants or agents or howsoever, from conducting General Elections in Belize unless and until they comply with section 90 of the Belize Constitution; and

• (7) Costs.”

3 After much negotiation and intervening court proceedings 1 it was by consent ordered as follows on 11 ^th November 2022:

SCHEDULE ABOVE REFERRED TO

• “1. All further proceedings in this claim be stayed upon the terms set out in the Schedule hereto except for the purpose of carrying those terms into effect.

• 2. Liberty to apply as to carrying such terms into effect.

• 1) The Parties acknowledge that given the current distribution of registered voters in Belize it is necessary for the Elections and Boundaries Commission to consider the distribution of voters and make recommendations for the amendment of the First Schedule to the Representation of the People Act to re-define current electoral boundaries.

• 2) The Elections and Boundaries Commission shall identify and explain in a written report its recommendations and all proposals considered necessary for re-districting as provided by the Belize Constitution generally and section 90 of the Belize Constitution in particular, and shall share the report with the Claimants on the date the report is laid before the National Assembly or the 17 ^th July, 2023, whichever is earlier, or such other extended date as agreed between the Parties.

• 3) The First Defendant shall cause the preparation of a draft bill pursuant to section 90 of the Belize Constitution to amend the First Schedule of the Representation of the People Act to reflect the recommendations of the Elections and Boundaries Commission as made in its said report, and the Elections and Boundaries Commission shall lay the proposals before the National Assembly before July 31st, 2023.

• 4) The Parties agree that in this process, the Defendants shall consult the guidelines set out in the Court's EXPERT REPORT OF SEAN P. TRENDE dated October 14, 2020.

• 5) The Defendants shall bear the reasonable costs of the Claimants to be taxed if not agreed.”

4 The Applicants have applied to this Honourable Court by application dated 3 ^rd October 2023, pursuant to paragraph 2 of the Consent Order, Rule 27.7 (3), (4); 1.1 (2) (b), (c), (d) of the Supreme Court ( Civil Procedure Rules), 2005 and/or the inherent jurisdiction of the Court, for the following orders namely:

• “(1) A declaration that the First Schedule to the Representation of the People Act is unconstitutional and unsuitable for the holding of general elections in Belize in light of the Parties acknowledgment contained in term 1 of the Schedule to the Consent Order.

• (2) An order of mandamus to compel the Respondents to carry into effect terms 2 and 3 of the Schedule contained in the Consent Order in so far as it relates to compliance with section 90 of the Constitution in the laying of proposals that meets Constitutional standards.

• (3) An injunction restraining the Defendants, whether by themselves or by their servants or agents or howsoever, from using the current distribution of registered voters in Belize's electoral divisions as defined in Schedule 1 of the Representation of the People Act, to conduct General Elections in Belize.

• (4) That the ELECTIONS AND BOUNDARIES COMMISSION, represented by the Defendants, be precluded whether by themselves or through their servants, officers, agents, servants or otherwise howsoever from relying on the FIRST SCHEDULE to the Representation of the People Act, for conducting General Elections in Belize, given that the definition of electoral divisions as set out in the said Schedule remains in breach of section 90 of the Belize Constitution.

• (5) That the ELECTIONS AND BOUNDARIES COMMISSION represented by the Defendants, be restrained whether by themselves, their officers, agents, servants or otherwise howsoever from holding General Elections until the Consent Order is enforced or further order by this Court.

• (6) The time for service and hearing of this Application be abridged.

• (7) Such further or other relief that may be just.

• (8) Costs be in the cause.”

5 The Application is supported by the following grounds:

“Enforcement of the Consent Order

• (1) That the Consent Order filed on November 11th, 2022 between the parties has been materially breached by the Respondents to the extent that the proposals in the July 2023 Redivisioning Report does not comply with Section 90(1)(a) of the Belize Constitution since the applied deviation threshold (25% to 35%) is arbitrary and outside the established international standard for holding democratic elections.

• (2) That the findings in the Court's EXPERT REPORT OF SEAN P. TRENDE dated October 14, 2020, clearly informed the Consent Agreement that formed the basis of the Consent Order between the Parties and which however was totally ignored by the Respondents in bad faith.

• (3) That on July 26th, 2023, the Applicants wrote to the EBC Chairman expressing objection to the July 2023 Redivision Report but have to date received no response.

• (4) That the Respondents have in essence admitted in court and in a signed Consent Order that the electoral divisions as currently defined in Schedule 1 of the Representation of the People Act, requires amendment in order to comply particularly with section 90(1)(a) of the Belize Constitution.

• (5) That this matter has been before this Honourable Court for over 46 months which has placed an unfair time and financial burden on the Applicants, who are ordinary working citizens with limited resources.

• (6) That there is a wider public interest beyond the parties in this case.

Injunctive Relief

• (7) That the Parties are aware that General Elections are always constitutionally imminent in Belize since the Prime Minister may advise the Governor General to issue a writ for elections at a time of the Prime Minister's choosing in accordance with Section 84 of the Belize Constitution.

• (8) That the status quo engendered by the Respondents continues to offend the rights of citizens and in particular the Applicants under Section 6 of the Constitution, Protection of the Law.

• (9) The Defendants are precluded by section 93 of the Belize Constitution from having resort to the electoral divisions as...