The Portico Definitive Agreement, as clearly set out in case law, cannot bind the government, former Prime Minister Rt. Hon. Dean Barrow told The Reporter this week.
According to Barrow, who is also a senior counsel, case precedents such as Claim No. 404 of 2007 already demonstrated in Belize's Supreme Court that government ministers, including the prime minister, cannot place restrictions or demands, per se, on Parliament; thereby, making agreements like the Portico (Port of Magical Belize) document unenforceable.
Barrow's reference to Claim No. 404 of 2007 speaks to a matter raised by the Port of Belize Limited (claimant) against the Government of Belize regarding certain agreements that the Port of Belize Limited (PBL) argued that the Government breached and failed to fulfill.
Barrow reminded that the judge's ruling in that matter (and others like it) provides sufficient guidance as to how to handle the present Definitive Agreement because those earlier cases established, as a matter of legal principle, that the Executive Branch of Government, inter alia, cannot fetter or bind the hands of Parliament.
Barrow, quoting the 2007 case, said:
"The court could, where it finds that the agreements purported to fetter future power of the legislature to legislate, arrive at a conclusion that the undertaking to enact legislation is unenforceable because it is ultra vires the Executive Government, contrary to public policy and usurpation of the functions of the legislature.
“As such, I [Justice Minnet Hafiz Bertram] respectfully disagree with Learned Counsel for the Claimants that the Defendant cannot rely on this argument because it was not pleaded."
He also quoted another section of that earlier judgment: “I [Justice Hafiz Bertram] agree with the Defendant that the undertaking by the Minister to enact legislation purports to fetter the power of the legislature to legislate.
“The Minister cannot validly enter into a contract that fetters the power of the legislature to legislate. Further, the agreement is beyond the powers of the executive to legislate. The rule against fettering applies to a clash between a contract and future legislation. It is not possible for a Government to bind itself by contract either to legislate or not to legislate on a particular matter in the future."
In concluding the 2007 case, Justice Minnet Hafiz Bertram found that the government (the Defendant) did not breach any agreement for, among other things, the reasons already cited.
The Definitive Agreement
Having outlined the case precedent set—Barrow, who maintained that the document fails on several other grounds—demonstrated how the Definitive Agreement openly purports to do exactly what previous rulings have already declared unenforceable.
Article V, titled “Government’s Obligations,” opens by saying in subsection 12.1.1 that the “Government shall introduce into the National Assembly and cause to pass such primary and subsidiary legislation … and/or take such executive action as may be required.”
The section goes on to list all the concessions that may require legislation. For instance, the section goes on to read that the legislation that the National Assembly should introduce and pass would be to “exempt the Developer … and their subcontractors from the payment of any and all customers and excise and revenue replacement duties, stamp duties, general sales taxes” and several other taxes.
Apart from the slew of tax exemptions, the Definitive Agreement also sought to bind the Legislature to pass laws that would “provide, or secure the Developer’s access to, Government land (including seabed) required for the development of the project.
Barrow maintained that the Definitive Agreement fails on several grounds, but case precedent and legal principles demonstrate where the kinds of terms included in the Portico document could never be considered enforceable. He opined that had such a document been presented during his tenure as Prime Minister, it would not have been countenanced in the slightest.