MP Roseburg still dealing with familiar scrutiny | The Peoples Tribune

surrounding her profession and her MP seat

MP Sjamira Roseburg practicing law in cases where government is directly or indirectly is involved has been an issue of her critics for quite some time; and by critics we mean politicians on the other side of the aisle. The issue was raised on the floor of Parliament in the lead-up to the campaign and was re-opened on Friday when Minister of Justice Lyndon Lewis disclosed that he sought legal advice on the matter before finalizing invoices that Roseburg (or her firm) has submitted for work carried out on behalf of the government. Minister Lewis explained that upon inquiry of MP Roseburg’s requests for payment, he was made aware of a legal issue or, more specifically, a constitutional issue.

The legal advice Minister Lewis received from attorney at law Roland E. Duncan of ‘The Law Firm” addresses the restrictions placed on Parliamentarians who are also practicing lawyers in St. Maarten, with specific emphasis on preventing conflicts of interest and preserving the integrity of government functions under the Trias Politica principle.

Duncan’s analysis is grounded in constitutional law, particularly Article 53, Paragraph 3 of the Constitution of St. Maarten, which establishes explicit limitations on the professional activities of a parliamentarian-lawyer.

The Peoples’ Tribune reached out to MP Roseburg to offer an opportunity to respond prior to publishing the content of the legal advice provided to us.  Both are published below.

The advice

Key Restrictions on Parliamentarian-Lawyers

1. Restriction Against Legal Representation Involving the Country

Under Article 53, paragraph 3, section 3a of the Constitution, a parliamentarian cannot serve as a lawyer or counselor in cases where the country is involved. This restriction applies broadly:

Criminal Cases: Parliamentarians cannot represent clients in criminal matters, as these cases inherently involve the country, given that the prosecution represents the state’s interests.

Civil Cases Involving the Country: In civil litigation where the country is a party, a parliamentarian-lawyer is similarly barred from representing either side. This avoids any potential for a parliamentarian to act in a way that could interfere with or influence the government’s stance.

Administrative Cases: Any case concerning government administrative matters, such as employment disputes with civil servants, also falls under this prohibition. Parliamentarians cannot represent individuals or entities in legal actions against government bodies to prevent conflicts of interest.

By establishing these prohibitions, the Constitution ensures that parliamentarians are not engaged in any legal actions that could directly involve the state, thereby upholding a clear boundary between their role as legislative overseers and the government’s judicial matters.

2. Prohibition on Contracts with the Government

Section 3c of the same constitutional article further prohibits parliamentarian-lawyers from entering into any contracts with the government, either directly or indirectly. Specifically:

Consultancy Contracts: A parliamentarian-lawyer cannot accept consultancy or advisory roles with the government, which would require them to act in a dual capacity as both a government contractor and a legislative overseer. This is seen as incompatible with the principle of independent oversight.

Piket-Regeling (On-Call Regulation): This provision, which involves lawyers being on call to represent criminal suspects under a government payment arrangement, is also prohibited. Participation in the Piket-regeling creates a contractual relationship with the state, introducing a potential conflict with their parliamentary duties.

These limitations, Duncan says, emphasize that parliamentarians must not engage in government work that could create a dependency on state resources or a relationship that might compromise their independence.

3. Waiver Possibility via Parliamentary Approval

Article 53, paragraph 4, acknowledges a waiver mechanism, permitting parliament to vote on granting exceptions to these prohibitions. This waiver must be approved by a majority vote in Parliament, allowing flexibility if a parliamentarian’s service is deemed crucial to the national interest. The waiver process allows for a rare exception, but only under circumstances that clearly benefit the public, ensuring that the prohibition remains the rule and exceptions are sparingly granted.

Legal Rationale and Framework: Ensuring Separation of Powers and Preventing Conflicts of Interest

The constitutional framework in St. Maarten is based on the Trias Politica (Separation of Powers), which divides authority among the executive (government), the judiciary, and the legislature (parliament). This separation is foundational to good governance and democracy, preventing any branch from unduly influencing the others. The constitution places these restrictions on parliamentarians who are also lawyers to maintain:

Independence of the Legislature: Parliamentarians are entrusted with oversight over the government. Allowing them to enter into government contracts or represent cases involving the state could compromise their independence and impartiality.

Avoidance of Conflicts of Interest: Parliamentarians should act solely in the public interest, and any private legal practice that entangles them with government interests creates a direct conflict with their role as legislators. By separating these roles, the constitution safeguards the integrity and transparency of the legislative process.

Public Confidence: These restrictions reinforce public confidence in the objectivity and independence of parliamentarians. If legislators engage in dual roles that create financial or professional dependence on the government, their objectivity could be called into question.

Duncan’s advice clarifies the constitutional boundaries for parliamentarians who are also lawyers, underscoring the need for a clear separation between legislative duties and private legal work involving the state. By restricting parliamentarians from practicing law in cases involving the country or accepting contracts from the government, the constitution of St. Maarten upholds the principles of conflict-free governance and independent oversight. The possibility of a waiver—though limited—ensures that the restrictions serve public interest without stifling necessary contributions.

The intent behind these rules are clear: to ensure that members of Parliament cannot use their positions for personal or professional gain at the expense of their public obligations, thus upholding a robust and ethical democratic system.

MP Sjamira Roseburg’s response:

First of all, what the Minister of Justice stated in regard to my invoices is incorrect. I didn’t do work on behalf of the government. I did work for my clients that cannot afford an attorney.  These invoices have been paid by the same Minister of Justice and it would be unfortunate that because of a personal matter this is now being used to not pay my firm for work that has been done.

I would like to start by expressing my respect for my colleague, attorney Roland E. Duncan, and for his efforts to clarify the interpretation of Article 53 of the Constitution of Sint Maarten. However, I must state that I disagree with his advice given to the Ministry in regards to the criminal law cases and how this relates to article 53.

Mr. Duncan’s interpretation of Article 53 does not address the core of what this provision truly means and how it is intended to function. To avoid confusion and to provide the public with accurate information, it is essential that we present a clear picture of the scope and meaning of Article 53.

Article 53 and the Core of My Role as a Criminal Defense Attorney

Article 53 stipulates that Parliamentarians may not take on cases against the country of St. Maarten, nor may they assist the country in such matters. I am fully aware of these restrictions and respect them. My work as a criminal defense attorney remains entirely within these boundaries. In criminal cases, I represent clients on an individual basis, not in conflicts against the government, but in support of their right to a fair defense. My work in this capacity does not contradict the spirit of Article 53. I believe that Mr. Duncan’s viewpoint goes too far in suggesting that criminal cases involving the Public Prosecutor’s Office (OM) fall under the restrictions of Article 53.

The OM operates independently within the legal system and is not equivalent to the interests of the government. My role in criminal cases is to defend citizens’ rights; I do not challenge the government nor take a stance against the country. This interpretation is crucial: the constitution aims to prevent conflicts of interest but should not be read in such a way that it makes the legal assistance I provide impossible.

Duty Counsel: A Misunderstanding of This Legal Aid

Attorney Duncan believes that duty counsel services for a parliamentarian fall under Article 53 because it would amount to a “contract” with the government. This is a misrepresentation of reality. Duty counsel services are intended to provide impartial legal assistance to those who otherwise cannot afford defense. The compensation a duty attorney receives is not a business agreement with the government in the usual sense. It is a necessary provision within a democratic society that guarantees the fundamental right to defense.

This work is far from a conflict of interest and is entirely separate from political decisions or advisory roles within the government. Considering duty counsel services as a conflict with Article 53 unnecessarily jeopardizes citizens’ right to a fair defense.

Integrity and the Importance of a Clear Separation of Roles

I fully support the need for parliamentarians to be independent of any interests that could influence our work. However, as a criminal defense attorney, I have a different role than as a parliamentarian, and I am very conscious of the boundaries between these functions. Article 53 was rightly established to prevent a parliamentarian from abusing their position to influence government policy or gain financial benefit at the country’s expense. In my practice, I strictly maintain these boundaries, and if any potential conflict of interest arises, I will withdraw immediately.

My work as a defense attorney contributes to the public interest, specifically to protecting citizens’ rights within the justice system. This is a fundamental part of the rule of law and does not undermine my role as a representative of the people.

The Importance of Accurate Information for the Public

Mr. Duncan’s interpretation may lead to misunderstandings about what parliamentarians can and cannot do in their profession. The public deserves an accurate  explanation of the constitution without limiting citizens’ rights to essential legal assistance. The current information presents an incorrect view of Article 53 and may cause unnecessary concerns about the integrity of my work as both a parliamentarian and a criminal defense attorney. It is my duty to provide clarity and inform the public correctly.

Article 53 sets clear boundaries to prevent conflicts of interest, but these boundaries are not intended to exclude criminal defense attorneys from their important work in the justice system. I do not take on cases against the country anymore since holding office.My work strictly remains within the scope of Article 53, and I constantly ensure a clear separation between my roles.

I will therefore continue my work as both an attorney and a parliamentarian, as can be expected of me: with integrity, independence, and full dedication to the rule of law. Transparency, integrity, and responsibility remain core values I uphold in both my work as an attorney and my role as a representative of the people. I am always focused on maintaining and strengthening the public’s trust. The people deserve honest representation committed to protecting their rights and doing so with the utmost care and integrity.

Source: The Peoples Tribune https://www.thepeoplestribunesxm.com