Last night 7NEWS broke the story of the Chief Justice's explosive judgement which sets aside Utilities Minister Ralph Fonseca's Statutory Instrument number 109 of 2005. In August of last year, that SI dramatically shifted the balance of power on BTL's Board of Directors by removing the so-called Special Share, and thus stripping Jeffrey Prosser of two seats on the board and the chairmanship. It also threw out BTL's Articles of Association - the company's law which had been in place since 1988 when it was privatized.
Well yesterday, the Chief Justice found that Fonseca's SI was "incompatible with the constitution" and "insupportable in law." His judgement restored the Special Share, the Prosser directors and the original Articles of Association. That's a sharp comeuppance for the Utilities Minister, but today a feisty Fonseca told us, who cares what the law says, when you're the kinda guy that just gets things done.
Hon. Ralph Fonseca, Minister of Public Utilities
"The Chief Justice has his job to do. I have my job to do. I have to respect his judgement. He is the learned Chief Justice. If he says that is the way it is, then that it is the way it is at this time. Of course I have our attorneys looking at it and we may challenge his position but we're not at that point yet.
We have to make up our minds in Belize if we want politicians that are going to act, cause things to happen, or tell you what you want to hear and be wish washy or tell you about dreams. I am one of those politicians that tries to get things done. Over a year ago we had chaos in Belize. We could not operate BTL. It was impossible to operate the Board of BTL. Some action had to be taken. I took the action. I took the chance. BTL has been operational.
There is no talk, regardless of what decision was made in court yesterday, about bringing Mr. Prosser back to the Board of BTL tomorrow. Mr. Prosser is a bankrupt and a bankrupt cannot be a director at BTL. That is the bottom line."
Alfonso Noble,
Are there legal implications with regards the makeup of the Board and in fact the composition of it? Last year's AGM has been declared null and void, the upcoming one will obviously not be able to happen because of the structuring of the Board. Your comment on that?
Hon. Ralph Fonseca,
"First of all I think that your television station needs to get a lawyer to get some opinion before they put notices on like you did yesterday - because if the one that I got a transcript of, off the internet this morning, is correct, then you made several mistakes, according to the legal opinions that I have gotten. The Chief Justice did do many of the things that she just referred to as it related to the SIs that I had signed but it certainly does not throw BTL into disarray as I said. You remember at that time we were talking about this Special Share. There was no special pronouncement about the Special Share."
Alfonso Noble,
There was a pronouncement that you in fact exported it, you took it out of somebody's control without authority.
Hon. Ralph Fonseca,
"You heard what I said? There was no special pronouncement about the Special Share. As it relates to what is the status of the Special Share today, and if in fact it even exists, but apart from that, I don't want to get into legalities. Like yourself I am not a lawyer either. The difference between you and I is that I speak to lawyers before I talk.
But secondly and most importantly, we are talking about a 6-2 board, if you could recall, and the Special Share thing was causing a deadlock so that you couldn't call a meeting; you couldn't manage BTL. With what was done over a year ago, rightly or wrongly, that has proceeded. BTL has proceeded. We all know what the situation is with Prosser and as like I said, Mr. Prosser was one of the directors, one of the two, and it is very very clear, according to the BTL Articles, that a bankrupt cannot be a director on the BTL Board. So Mr. Prosser can't be a director on the BTL Board anyway. So I don't see how that affects anything."
Alfonso Noble,
But he wasn't a bankrupt at the time.
Hon. Ralph Fonseca,
"Well, but the meeting has also occurred and we are where we are at with BTL today."
Alfonso Noble,
Are you contemplating the fact that Mr. Prosser may be able to launch a legal counteroffensive based on the Chief Justice's action and in fact the government may have to compensate him?
Hon. Ralph Fonseca,
"I am contemplating that anything can happen but like I said, I will speak with my lawyers and check with them and see what they think. Mr. Prosser, believe me, is extremely occupied in other parts of the world."
Alfonso Noble,
As it is you are going to be mounting a legal challenge to the Chief Justice's ruling?
Hon. Ralph Fonseca,
"No I didn't say that. Again you have to listen. I said that I am going to check with the lawyers and they will direct us as to whether we decide to appeal the judge's ruling or not. For right now, as the Minister of Public Utilities, I respect the judge's ruling."
He speaks so highly of them, we wouldn't want to think that Fonseca's legal advisors are the same ones who advised him to sign the deeply flawed statutory instrument. Sadly, though...they are and given the choice between his lawyers that encouraged him to sign a constitutionally repugnant SI, and our own counsel which tells us that Fonseca's SI and this subsequent adverse judgement puts government in a world of worries, we will defer to our own.
And as to Fonseca's position on a bankrupt barred from the board, if the Special Share is held by Belize Telecom, which we know it to be, that company has not been declared bankrupt in Belize, so, by the CJ's judgement, it can appoint any two persons to serve on the board.
As for Jeffrey Prosser, at all times he was an invention of the Musa administration, which signed what was then a secret agreement with him making promises it would never keep if he would take over Glenn Godfrey's secretly, publicly guaranteed Intelco debt. Government also sold Prosser the Special Share - and the two directors' seats that come with it - for one dollar. And that's the same Special Share that Fonseca declared to be "unlawful and of no effect" in his now notorious SI 109. Fonseca's Central Bank then went as far as to book a Prosser promissory note for money, US$50 million, it would never receive.
