The High Court of Belize in February handed down a judgment in the case Belize Sugar Industries Ltd v The Attorney General of Belize & others which dealt with an application by BSI challenging the constitutionality of the Sugar Industry (Import/Export) Regulations, 2023. In the judgment handed down by Justice Goonetilleke, it was determined that several provisions in the regulations violated constitutional protections and were declared null and void. Of the provisions determined as unconstitutional, Regulation 5(1) was found to have violated the right to privacy protected by section 14 of the Constitution of Belize. The High Court explained that the right to privacy applies to natural and legal persons and that the Government of Belize, by requiring the disclosure of private business details, violated that right. Of course, Justice Goonetilleke’s judgment is open for the higher courts to affirm or overturn but for now the judgment serves as a message to policy/lawmakers that businesses possess constitutional protections that must be considered when making laws that affect them. Furthermore, where laws violate those rights, the Court will strike them down. 

Context

In 2023, the Sugar Industry Control Board (SICB) with the approval of the Minister of Agriculture introduced the Sugar Industry (Import/Export) Regulations which required entities involved in the trade of sugar to obtain licenses, subject to conditions. These regulations were introduced during a period where the commercial dispute between Belize Sugar Cane Farmers Association, the largest single sugarcane producers’ association, and the miller Belize Sugar Industries Ltd prevented the parties from renewing the commercial agreement which governed the supply of sugar to the mill and the division of revenue according to the Net Stripped Value calculation. The dispute, which has existed well beyond a decade and is still ongoing, has in the past resulted in blockages of the mill by the BSCFA. 

Following a blockage of the mill in 2021, Tate & Lyle as the primary purchasers of sugar from BSI informed the BSCFA that Fairtrade premiums that were once payable to the association were no longer going to be paid, citing violations by the association of standards expected by purchasers under the Fairtrade system. Fairtrade is a program which allows agricultural products that conform to the program’s standards to be sold at higher prices and a portion of the proceeds go directly to the producers as a Fairtrade premium. In the current case, Tate & Lyle as the sellers of the sugar internationally, was responsible for paying the premiums to the association. When T&S notified of the decision to stop payments of the premiums the SICB proceeded to make regulations that require, amongst other things, BSI disclose to the SICB all the contracts for sale of sugar and for BSI to collect and distribute Fairtrade premiums. BSI challenged the constitutionality of the regulations.

Businesses’ Right to Privacy?

We typically think about rights in the context of human rights or the rights of living things, very rarely do we talk about or even realize the broader scope of which the protection of rights apply. The wording of the Constitution of Belize itself at Section 3 which deals with fundamental rights speaks of the “protection for his family life, his personal privacy, the privacy of his home…” At face value it’s not entirely obvious that the protection of the right to privacy applies to anyone else other than humans and the protection of their rights from abuse by the State. However, the High Court in its judgment clarified that the protection of this fundamental right also extends to legal persons, i.e. businesses. The reasoning behind this finding is not novel. In 2014 the Supreme Court of Belize (as it was then) recognized the right to privacy for corporate bodies/legal entities in Titian International Securities v The Attorney General of Belize. The finding in that case followed the example set by cases from other jurisdictions such as Germany and Ireland where legislation was struck down for violating a legal entity’s right to privacy. 

In basic terms, courts in multiple jurisdictions, including Belize, have held that the right to privacy applies not only to citizens but also to corporate entities. This means that when confronted with a law or an action by the Government which appears to infringe on the right to privacy, the court must consider whether it does infringe the right and whether the infringement is justified. 

Were the Regulations Justified?

The High Court considered the claim by BSI that Regulations 5 (1)(b), 21 (1)(b) and 22 breached BSI’s right to privacy. Those regulations dealt with the requirements to disclose contracts between BSI and the purchasers to the SICB and the BSCFA. 

Justice Goonetilleke explained how the right to privacy applied in this instance. He referred to the distinction made between three types of privacy in the Jamaican case Julian Robinson v The Attorney General of Jamaica. In that case, which followed the reasoning of the Indian Supreme Court, there were three types of privacy included in the right to privacy: 1.) privacy of the person 2.) informational privacy and 3.) privacy of choice. Informational privacy, explained as the control a person has over the dissemination of information, was decided to be the relevant form of the right to privacy at play. 

Once it was determined that businesses do have a right to informational privacy and that it extended to the way businesses control the dissemination of its contracts with third parties, the Court then had to consider whether the SICB was justified in its attempt to abrogate that right. Justice Goonetilleke considered the purpose of the Regulations which, according to the SICB, was to bring transparency to the distribution of Fairtrade premiums and to essentially protect the interests of the sugarcane producers associations. The Court considered this reasoning in the context of the ability Parliament has to abrogate rights. At section 9 of the Constitution, rights may be abrogated if it is required in the interests of “defence, public safety, public order…” The High Court found that considering the requirements of the Regulations and the group of persons that abrogating the right will ultimately benefit, this was not to justify limiting BSI’s right to privacy. In other words, the Regulations failed the test of being in the interest of “defence, public safety, public order…” and were therefore unconstitutional. 

This ruling reinforced the right businesses have to protection against laws that violate their Constitutional rights. The effect of this ruling is to caution lawmakers on the limits they have to make laws that impact businesses. The threshold for violating the Constitution remains high and it is not an easy claim to succeed in but where the Court finds unjustified breaches of rights, it will exercise its power to strike down legislation. It is now up to the higher courts, if appealed, to either validate or correct the judgment made in this case.