** Exclusively on SXM Talks, articles by Ralph Cantave **
~ Infringement of the law appears intentional ~
Notarial Flaw?
PHILIPSBURG – A legal dilemma remains without reason in the notarial services rendered on St. Maarten due to notary Faride Tjon Ajong who passed the mandated age that one is allowed to function as a notary. When Tjon Ajong’s legal mandate ended in 2018, the former President of the Joint Court of Justice, Eunice Saleh, informed both the Governor and the Minister of Justice at the time, Cornelius de Weever, that a recruitment process had to commence. However, no action was taken to date.
According to article 3.2 of the National Ordinance on civil-law notaries (‘Landsverordening op het notarisambt’), “upon reaching the age of 65, he [the notary-Ed] will be granted an honorable discharge by national decree with effect from the first day of the following month.” Also, once a notary position becomes available/vacant, the Minister of Justice has to make this public and request the court to set up a list with a maximum of three nominees, to replace the former notary.
This leads to what is the legal basis of allowing an extension to stay on as a notary and whether Tjon Ajong was notified? If she was, were her activities after March 2018 legal and valid? Also, why didn’t the present Minister of Justice, Anna Richardson, or her predecessors follow through on applying the law? Presently the law allows for only three notaries to function on the island. This number can be increased with an amendment to the law. An amendment can also increase the age limit of a functioning notary. However, neither option took place.
Appointment Backstory
Before being installed as a notary on St. Maarten, Tjon Ajong functioned in Aruba where she was discharged in 2013 upon becoming 60. At the time, age 60 was the legal cap in Aruba but it has since been changed to 65 like all other Caribbean islands of the Dutch Kingdom. Aruba also increased its legal number of notaries functioning from four to seven.
In the case of Tjon Ajong, her initial appointment as a notary in 2014 was motivated by the reasoning of the then Minister of Justice Dennis Richardson. Richardson bypassed the preferred first-choice candidate of the Joint Court of Justice. In an interview with the former Today newspaper, Richardson made it clear that he had chosen Tjon Ajong because she would have to retire as a notary (again) within a few years. That would have led to a specific young St. Martiner (‘landskind’) replacing her.
Tjon Ajong was second on the list of the Joint Court of Justice – their preferred candidate was a younger Dutch lawyer, Lars de Vries. de Vries at that time worked as an apprentice in Henry Parisius’ office for several years. Tjon Ajong was then appointed at age 61 when Parisius retired.
Noteworthy to mention is Richardson’s reasoning would have resulted in the bypassing of a St. Martiner and other young eligible candidate-notaries already working on the island. The appointment was done to prepare the ‘landskind’ who was still studying Notary Law in the Netherlands to become Tjon Ajon’s successor. According to a high-level source, Tjon Ajong used that same argument in 2018 to be permitted to continue until age 70, which is in contravention of the law.
The present Minister of Justice, who previously worked in Dennis Richardson’s cabinet has been contacted about the case on March 22 via email and on the 23 during the Council of Ministers press briefing. Answers to questions posed are still pending. A request for correspondence on the situation was also made however, this information is still being awaited. The Governor’s cabinet was also contacted but no response was provided. Several attempts to confirm with Tjon Ajong were unsuccessful due to her being unreachable.
The joint court responded to an email about the situation by stating “The President of the Court and in that capacity also the current chairman of the Kamer van Toezicht Notariaat has been made aware of the situation that Notary Tjong Ajong has been substituting as a notary since 2018, awaiting the fulfillment of the vacancy that opened after she has reached the age of 65 years. Contact will be made with the Minister of Justice shortly in order to initiate the selection procedure to have this vacancy fulfilled.”
No answer to the questions about judge Saleh’s update to the former ministers and Governor were provided. They did not respond to whether Tjon Ajon was notified, nor whether the current minister requested advice for new nominees, along with correspondence on the matter. The response doesn’t shed light on the irregularity and indicates that the court is now notified or aware of the situation. Follow-up questions were sent such as whether Tjon Ajon is substituting for herself, and if there’s a decree/letter with legal provisions for such. According to Article 17 of the notary ordinance, the Joint Court appoints a substitute notary.
A key component to growth
This passive approach to an esteemed legal field that requires rigorous verification of documents, compliance, and irreproachable ethical standards appears marred. Such a case also sets back eligible and young candidate notaries who’ve garnered experience and expanded their careers and services. It is unclear if Tjon Ajong followed up with the court or ministers to rectify the situation. It is also unclear if she was granted written permission to continue working as a notary and if the Supervisory Chamber for Notaries was consulted on this matter. According to the law, a notary should be of ‘good behavior’. Willingly functioning in contravention to the law can cause more than an administrative slap on the wrist and reputational stain, as another local notary has recently experienced in court.
By law St. Maarten allows only three notaries to be appointed. These three notaries also serve Saba and Statia. That became possible in 2017 via an amendment of the law. With all the delays in opening a bank account, setting up an N.V., B.V. or other legal entity, and buying real estate, it’s unclear why the cap on notaries was not extended with at least one extra notary. For years already, Aruba extended the cap on notaries from four to seven and Curacao from seven to ten. Increasing the number of notaries would also benefit the aforementioned two-sister islands as well as allow more options for local clientele. This in turn reduces the present waiting period and provides for better service.
The main questions that remain are: Was positive discrimination utilized to stall the application of the law? Why didn’t the former and the current Minister of Justice initiate a recruitment process? How does this affect consumer confidence in the notary market? Also, will the law be amended to allow for more notaries on St. Maarten?
This is part one of a look into operations of notaries on St. Maarten.
View comments
Hide comments