By Dylan Vernon, TIME COME #4, 15 November 2023)
Although there is near universal agreement that the Preamble is the cornerstone of the Constitution of Belize, some are sceptical on its practical utility. Is it purely a set of aspirational declarations? Is it obligatory and legally-binding on its own merit? Can it only be used by courts to help interpret the rest of the Constitution? Should it be left as is or should it be amended? These are some of the questions that the People’s Constitution Commission will likely consider in reviewing the Preamble and they are the focus of this Time Come post.
What Did the Framers Intend?
Let’s first set the background by exploring the intent of the framers of the Independence Constitution. During the public consultations by the Joint Select Committee (JSC) of the National Assembly on the White Paper on the Proposals of the Government of Belize on the Independence Constitution, several citizens sought clarity on what the Preamble, as drafted, would mean in practice for them in an independent Belize.
For example, in the very first public consultation in Punta Gorda, Toledo on 16 February 1981, a question from Timothy Bardalez, on whether the Constitution would help advance social welfare, prompted several interventions on the draft Preamble. In response for the JSC that day, V.H. Courtenay, who had drafted the White Paper, informed that the Preamble was like an “introduction” to the Constitution and that it:
…attempts to set out the guiding principles upon which the sections [of the Constitution] are interpreted…This Constitution is going to be interpreted by the Supreme Court of Belize…and if there are doubts as to what a provision means then they will turn to the Preamble and interpret [the Constitution] in the spirit of the Preamble.
Later that month in the 25 February 1981 public session in Belize City, Nuri Muhammed, speaking as a representative of the Islamic Mission of Belize, wondered if the Preamble “was all flowery words intended to influence the mind” and contended that it is the “Constitution proper” that binds government to the people. He was not challenged by any member of the JSC on this view.
The draft Preamble was also directly addressed during the Fifth Plenary Session at the Belize Constitutional Conference in London on 8 April 1981. After a query from the UK Delegation on the logic for excluding some proposals to amend the draft Preamble, V.H. Courtenay of the Belize Government Delegation used the opportunity to again clarify the purpose of the Preamble:
The Preamble should only be used as a guide to interpretation in case of ambiguity. It sets out national goals as a guide to administrators and the people.
While the UK Delegation did not object to this unambiguous statement by Courtenay, it asked why economic rights were not included in the draft of the Preamble in the White Paper – as some, including the Chamber of Commerce and Professor E.A. Laing, had proposed. Courtenay responded that “the Preamble did not mention economic rights, such as education and health, because, although these were desirable, they were not enforceable by a court of law.” On the surface, this may seem to contradict his first statement which inferred that the Preamble was not legally enforceable – so why would including social and economic rights be a concern? Were there grey areas around the use of the Preamble from the very start?
What Courtenay’s statements in 1981 did make clear is that the essential ‘spirit of intent’ of the framers was for the Preamble to serve the critical function of assisting the National Assembly and the Judiciary in interpreting the rest of the Constitution – but not designed to be legally enforceable on its own independent merit. Still, there is the thorny issue as to how the Preamble should be reflected in the rest of the Constitution.
Political Calculations and Selective Enshrinement
National governments, especially, those of cash-strapped developing countries, are always wary of the political and budgetary obligations that can accompany the constitutional enshrinement of human rights, and especially of social and economic rights. Consequently, such rights are often excluded altogether or so watered down as to be meaningless – often at the expense of advancing social democracy and people’s welfare. And this political caution related to social and economic rights extends to preambles.
When V.H Courtenay replied on 8 April 1981 to the UK Delegation in London on the issue of economic rights, he could well have been thinking of the political and financial implications of the often-overlooked paragraph (f) of the Belize Preamble:
Whereas the people of Belize…desire that their society shall reflect and enjoy the above-mentioned principles, beliefs and needs and that their Constitution should therefore enshrine and make provisions for ensuring the achievement for the same in Belize.
In short, the Preamble itself attempted to clarify its own use: the rest of the Constitution should follow up and enshrine what it states. It follows that including specific social and economic rights in the Preamble should have required that these be then given substantive life in the parts of the Constitution that are clearly legally enforceable. However, the case of the Belize Constitution demonstrates that in 1981 and after there has been only selective enshrinement of preambular principles and only selective ‘making of provisions’ for their achievement.
On the one hand, substantive parts of the 1981 Constitution did make obligatory provisions for selected preambular principles, for example, (in Parts I and II) the right to life, the right to work, the ownership of private property and for the prevention of discrimination based on race, colour, creed and sex.
On the other hand, several of the important national principles and policies in the Preamble were not enshrined in the substantive parts of the Constitution. Prominent examples include the right to basic education and health, eliminating social disparities based on gender equality and disability, and the protection of the environment. This selective enshrinement approach has contributed to scepticism about the usefulness of the Preamble.
The Preamble in Action
As noted in my previous post on the Preamble, there is a robust body of legal academic literature on the issue of the judicial enforceability of preambular statements. Approaches to enforceability vary across countries. For example, Vanuatu and Kazakhstan have preambular type statements with enough specificity to make it more likely for a judge to interpret them as obligatory.
While doing some comparative constitutional reading recently, I was surprised to discover that the Preamble of the Constitution of Belize has been directly referenced in constitutional law studies. For example, in an article in International Society of Public Law Journal (No.3 of 2018), Lael K. Weis pointed to the Belize’s preambular formulation of “Whereas the People…require policies of state…” and argued:
The placement of this phrase in the [Belize] preamble and the use of the prefatory term “whereas” indicate that “require” is used in an indicative rather than an imperative sense. The phrase is declaratory of fundamental values and not intended to create a binding constitutional obligation.
Indeed, when clauses in the Belize Preamble have been used by courts in constitutional cases since 1981, they have served as entry points to interpret substantive provisions in the parts of the Constitution that are generally seen as legally enforceable. One of the more cited cases is the ‘Maya Lands Rights’ Supreme Court case of 2007. Godfrey Smith, in a paper on constitutionalism in Belize (see note below) related how then Chief Justice Conteh used the statement in Preamble (e) that the people of Belize “require policies of state which protect…Belize’s indigenous peoples…” as a point of interpretive departure in that case. The preambular reference to indigenous peoples was the result of constitutional amendments made in 2001 after the Report of the Political Reform Commission in 2000.
While that case (which concluded that the Maya do have customary land rights and this was upheld by the Caribbean Court of Justice in 2015) turned on substantive rights issues, Smith observed that “The notion that the preamble plays an important role as the normative or philosophical basis for interpreting the constitution should be applauded.” Thus far, no case before the courts has been adjudicated based on the Preamble alone, but there are post-independence judicial precedents for its interpretive use.
Clarifying Purpose & Minimising Discretion
Given its critical importance to the rest of the Constitution, the Preamble may well be one of the first areas targeted by the People’s Constitution Commission (PCC) for soliciting the views of the people. And based on the 1981 experience, the Preamble may well be what the people of Belize most identify with. I suggest that there are at least three sets of constitutional reform issues related to the Preamble that should frame the national discussion. The central goal is to better ensure the fulfilment of the national values and aspirations expressed and agreed by the people.
First, it seems common sense to me that a new or revised Constitution should directly provide more clarity to the issues of enforceability and of justiciability of its Preamble or parts thereof. If the Preamble or clauses of it are only for interpretation, then just state this in black and white. If the Preamble or clauses of it are legally obligatory, then just state this in black and white. Then the national debate becomes which clauses should be obligatory, which should not be and why. This should not be left to the discretion of politicians nor should judges be forced to interpret cases with only negligible guidance.
My own sense is that most of the Belize Preamble should be in written obligatory language, not only to bring clarity to its purpose, but also to eliminate or minimise selectivity of what should be constitutionally enshrined or not. As discussed above, significant bits of the current Preamble have not yet been operationalized in the parts of the Constitution that are now enforceable and justiciable. And the wording of preambular text calling for enshrinement – current Preamble (f) – needs to be less conditional than ‘desire’ and ‘should’. How about ‘require’ and ‘shall’?
What to Revise?
Second, is the issue of what revisions and additions should be made to the principles, beliefs and values stated in current Preamble. The record shows that the Preamble has been amended seven times since 1981 – all in constitutional amendment acts (3rd and 4th – both of 2001) in reaction to recommendations from the Report of the Political Reform Commission of 2000. The seven amendments were all in the form of additions under paragraph (e) on policies of state required by the people. These related to ethnicity, disability, gender equality, basic education, basic health, the right to vote, and protection of social and cultural values of Belizeans, including Belize’s indigenous people. These have not been operationalised in the rest of the Constitution.
There is certainly need for a robust national debate on the questions of ‘what changes’ and ‘what else’ should be added. I will leave my specific proposals on this for another time, but keen observers will note that there have already been some public discussions around matters related to issues such language rights, sexual orientation, the ‘supremacy of god’ clause, and freedom of the press. I have also heard a few strong arguments being made for more obligatory language on gender equality and environmental rights.
One proposal I will certainly put in the mix is that the Preamble and the rest of the Constitution must be revised to include language related to the constitutional responsibilities of the citizens of Belize. Currently, the Constitution as ‘social contract’ gives rights to Belizeans but demands no civic responsibilities. This should change.
How to Amend?
Finally, it has always baffled me why the Preamble, that is accepted as so foundational to the Constitution, was not included in Schedule 2 of the Constitution that lists the sections of the Constitution which require the highest amendment threshold of a three-fourths majority in the House of Representatives. For the Preamble, currently, only a two-thirds majority in the House is needed. Surely, this too must change! And the people may even propose that a referendum be the requirement for amending the Preamble, as well as other fundamental sections of a new or revised Constitution.
Let us get our informed proposals ready and advocate for constitutional reforms that not only renew national values and aspirations, but also result in a Preamble with more substance, clarify of purpose, and practical application for all Belizeans.
Note on sources: Apart from sources named or in the hyperlinks, this article drew on original sources in the Parliamentary Archives of the Belize National Assembly, in the holdings on Belize’s independence at the Belize National Archives, and in the UK National Archives, on newspapers and news magazines of the time and on Godfrey Smith’s 2008 paper titled ‘Constitutionalism in Belize: Lessons for the Commonwealth Caribbean.’ The last image shows the winning legal team after the CCJ upheld the 2007 judgement of the Supreme Court on the Maya Lands rights case.
Subscribe to Time Come