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Editorial || Special Prosecutor Bill had to be stopped at the Senate

An intriguing constitutional issue arose before the Senate of Belize concerning a proposed new law called the Special Prosecutor Bill (2023).

In this Bill, which the House had already approved, the Government had sought to create a new prosecutorial authority to pursue and prosecute the person or persons responsible for the ghastly New Year’s Eve murders in which three persons in Belmopan were killed in cold blood.

The reason for the new legislation is clear. The Director of Public Prosecution, Mrs. Cheryl Lynn Vidal, has recused herself for personal reasons, given her familial ties—even though only through marriage—to the lead suspect in the murder case.

But this is where the constitutional problem emerges because the Director of Public Prosecution is the only authority designated under our constitution to handle prosecutions. To be clear, Section 50(4) Constitution reads as follows:

“The powers conferred on the Director of Public Prosecutions by paragraphs (b) and (c) of subsection (2) of this section shall be vested in him TO THE EXCLUSION of any other person or authority.”

Of course, the Supreme Law does allow for delegating of powers. Section 50(3) reads: “The powers of the Director of Public Prosecutions, under subsection (2) of this section, may be exercised by him in person or through other persons acting under and in accordance with his general or special instructions.”

Given the language of Section 50(3), one could wonder if the solution to the apparent conflict could not have been a type of reliance on the “special instructions” provision already carved out in the Constitution, as opposed to attempting to pass new legislation that appears to conflict with the Constitution itself.

Given its language, the Special Prosecutor Bill clearly seeks to give prosecutorial powers to another office other than the DPP. Section 6 of the Special Prosecutor Bill reads:

“The scope of duties of a special prosecutor shall be to (a) investigate an assigned case and determine whether to institute a public prosecution.”

Interestingly, Section 50(2)(b) of the Constitution—again the Supreme Law of the land—authorizes the Director of Public Prosecution (DPP) to “to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority.”

It is important to recall what Section 2 of the Constitution expressly says: “This Constitution is the supreme law of Belize, and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”

Considering the “Supreme Law” clause, even if the Special Prosecutor Bill (2023) declared itself as having powers that are outside the reach of the DPP’s Office, the operative question is this: Would such a proviso or declaration be “consistent” with the Constitution that tells us that the DPP can overtake any prosecution (Section 50(2))?

Now, the Special Prosecutor Bill does attempt this by saying in section 4(3): “A special prosecutor shall not be subject to the direction or control of any person or authority.”

Try as it might, however, the Bill—even if passed—would have been no more than an Ordinary Law, therefore, unable to upend the language of the Constitution legally.

The Senate—the Upper House—rightfully placed this piece of legislation on pause. While we could understand the intent for the Bill, the means need to be revisited.

This is one of the few instances in our country’s history where our bicameral National Assembly has illustrated its usefulness in catching conspicuous flaws that the structural weaknesses of our Lower House make incapable of reining in. There are at least four legally trained members in the Lower House that one could only assume cringed at the conflict between the Bill and Constitution.

But, alas, the “Ayes” must have it, especially when Area Representatives cannot vote their conscience without permission from their respective Parties.

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