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Home General The Special Agreement is unlawful and unconstitutional, attorneys say

The Special Agreement is unlawful and unconstitutional, attorneys say

BELIZE CITY, Tues. Feb. 19, 2019– The Special Agreement, aka “the Compromis,” signed between the Government of Belize and the Government of the Republic of Guatemala in 2008, and which became a treaty between the two countries, is unconstitutional and therefore illegal, according to a team of lawyers who have been researching the constitutional principle of the separation of powers.

With less than two months remaining before Belizeans are scheduled to go to the polls in a national referendum on April 10, to determine whether or not to settle the Guatemalan claim at the International Court of Justice, the Special Agreement is about to be challenged in a massive lawsuit which will seek to have the court declare it unconstitutional.

Attorneys who are about to file court papers have been making the media rounds after they released a 39-page legal paper entitled : “Legal issues arising in domestic law in consequence of the entering into of the Special Agreement between Belize and Guatemala to submit Guatemala’s territorial, insular and maritime claim to the International Court of Justice.”

When the Special Agreement was signed in Washington, DC at the headquarters of the Organization of American States at the recommendation of its Secretary General, it was on the understanding that both governments would comply with the necessary domestic laws to validate it.

In Guatemala, the Special Agreement had to get the approval of the congress of the Republic, the president, the Ministry of Foreign Affairs and the Ministry of Defense.

In Belize, it was merely mentioned in the House of Representatives before it was taken to the Senate, where it was hastily ratified into a treaty some eight years after it was signed.

Four attorneys — Anthony Sylvestre, the lead researcher; along with Dickie Bradley, Kareem Musa and Richard Bradley, Jr. — have pored over the relevant case law from the Commonwealth jurisdiction and are of the view that they can invalidate the Special Agreement with a high court decision.

Apart from the collaborative efforts of the four named attorneys, other attorneys, including senior counsels, also provided assistance in the legal research that went into producing the legal paper challenging the Special Agreement.

Listeners of the Wake Up Belize (WUB) morning show on KREM Radio and KREM TV, heard from Richard “Dickie” Bradley, who explained that the Special Agreement is a document that two countries sign to take a dispute to the International Court of Justice, and in our case, the Special Agreement that Belize signed with Guatemala became a treaty.

Bradley explained that to change the Constitution there has to be a special procedure and the Special Agreement has interfered with the constitutional process. The Executive branch has entered into a treaty which has interfered with the procedure of the Legislative branch of government, he said.

“What the Executive has done is impinge on the function of the Legislative,” Bradley stressed.

In a media interview today, attorney and House of Representatives member, Kareem Musa, explained, “It cannot be that the minister, the government and a few other individuals can look at a document and review it and say that ‘we speak on behalf of an entire country and we are going to take an entire country to the International Court of Justice’ without first putting it to the people.”

“And by putting it to the people, I mean taking it to the National Assembly for ratification. As you know, the section of the Constitution, Section 1 and the Schedule 1, sets out the borders of our country, Belize. Section 68 of that very same Constitution says that only the National Assembly has the power to alter the constitution and to make laws and so what the current government was doing in 2008 up to the present, is actually assigning the power of the legislature unto the ICJ when in fact it should first come to the House for us to be able to vote on that, to review that, to ventilate it properly, and ensure that the compromis has all of the terms that we can all agree on as a country before we take it to the ICJ.,”  Musa further explained.

“This is something that the Prime Minister will have to look at because we are relying here on cases coming out from the Brexit decision; in particular the Miller case and the UK withdraw case which actually sets out the importance in any democracy of the principle of separation of powers, and what that means is that each entity, the legislature, the executive , and the judiciary, have a role to play, and we cannot bypass the role that the legislature plays in such an important decision like this one, the biggest decision that us as Belizeans will have to make on whether or not we take our country to the International Court of Justice for a case which we still do not know what Guatemala is claiming,” he went on to say.

Under the protocol of the Special Agreement, the ICJ would be given the authority to adjust the borders of Belize and if the case goes to the court, the decision of the court would be final. The argument, therefore, that the attorneys are advancing is that the ICJ would be acting in a role that the Constitution of Belize reserves for the Belizean parliament, in other words, the legislative branch of the government.

Attorney Sylvestre broke down the principle that is at play: “The special agreement is a treaty in accordance with the clear definition of a treaty as set out in the Vienna convention on the law of treaties. But with treaties, treaties operate on the international plane and this is very important for Belizeans to understand and appreciate. They have 2 levels at play here; the international plane and domestically within the country,” he outlined.

Sylvestre further stated, “On the international plane, once a country signs, the executive (government) which has the authority to enter into treaties, into agreements on behalf of the state. When they do that and when they ratify the treaty, the agreement, that they signed, that binds the state on the international plane such as what has occurred with the Special Agreement.

“But domestically, in our national law, the treaty does not have any binding force until and unless it is incorporated; it is made law. You cannot have an agreement which has the effect of changing or altering rights or laws. You cannot have such an agreement being implemented or enforced until and unless the National Assembly steps in and gives its approval by way of having its say in the House of Representative and Senate, and passing by a required majority of that law.

“Now in the case of the proposed boundary redefinition or re-determination because, as you know, our boundaries are already defined in the constitution. So in order for the country to be redefined, the National Assembly has to give that authority to the ICJ, but as is the case presently, that has not been done.

“All that has occurred is that the government has on the international plane, agreed that that will be done. Now what has to happen domestically is that the National Assembly has to be engaged. It has to give its authority.”

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