2010-2018 eight years of inspection and supervision in law enforcement on St. Maarten
Prologue
The Law Enforcement Council (“the Council”) was set up by Kingdom Decree of 10th of July 2010, between the countries within the Kingdom: Curaçao, the Netherlands and St. Maarten.
Following the establishment of the Council, the participating countries worked on the establishment of the Council, by appointing councilors, providing budgets for the Council in 2010 and 2011. Since 2012, the Council has been operational, with the first inspection surveys taking place from the various locations. In 2012, the Council presented its first reports. Since then the Council has produced 103 reports, 40 of which pertain to St. Maarten.
The composition of the Council consists of three members, among which the Chair (which rotates):
G.H.E. Camelia (Councilor on behalf of Curacao, appointed by Royal decree per 27 April 2011);
On October 11, 2014, a new councilor also by Royal decree was appointed on behalf of the Netherlands, in the person of T.P.L. Bot. He succeeded J.J. van Eck, who was appointed councilor on behalf of the Netherlands on October 11, 2010;
And yours truly, appointed by Royal decree as Councilor on behalf of Sint Maarten per 29 December 2010.
After two four-year terms, as the longest-sitting councilor, as the law requires, I say farewell to the Council as member and as Chairman, as of the 29th of December 2018.
The Council’s experiences that I’m about to share with you this afternoon is from the viewpoint as councilor on behalf of Sint Maarten.
The role of the Council can be viewed from several perspectives.
I’ve chosen to give:
Firstly, a quick view of the history and development of the Council 2010-2018;
Secondly, from a legal viewpoint as an entity that supervises the Justice chain;
Thirdly and lastly, recommendations for the future;
I. A quick view of the history and development of the Council 2010-2018
Introduction
History
The law Enforcement Council was established by Kingdom Decree in 2010, together with three other judicial laws. These judicial laws are also called the Consensus-Kingdom Laws which, based on article 38 of the Statute, were created upon the dismantling of the Netherlands Antilles. These acts pertain to the Police, the Prosecutors Office, the Common Court of Justice. Unlike the other three, the Kingdom Act of the Law Enforcement Council is a result of one of the recommendations of the report of the Committee on the Law Enforcement of the Netherlands Antilles, the so-called Camelia-Romer Report of 2006. It includes the recommendation to establish an independent inspection body for the supervision of the judicial chain. The follow-up to that recommendation has led to the existence of a new monitoring phenomenon, namely the monitoring of the functioning of the organizations within that judicial chain. It also considered that the operation of the chain and judicial cooperation between the countries within the Kingdom should be subject to supervision.
The European part of the kingdom is not covered by the Law Enforcement Council. The Netherlands does not have a Law Enforcement Council for the European part of the Netherlands, nor any other independent body entrusted with the supervision of the justice chain.
Given the acknowledgement of the importance of independent supervision in the entire Kingdom, the Caribbean part of the Kingdom can be considered a trailblazer where it concerns St. Maarten, Curaçao, Bonaire, Saba and St. Eustatius.
In 2010 and 2011, the Council completed its establishment with the appointment of three members, after which it began to setup its operations. With a team of delegates from the countries and external expertise, the Council has set up its own organization, which serves as the basis for what the Council has been since 2012. The Council operates from three offices, each staffed with inspectors and managed by a Secretary.
Development
Over the years, the Council has developed within each country. While the scope of research increased, and the research capacity remained available, more expertise has emerged. As a result, the Council has been able to draw an increasingly comprehensive picture of the functioning of the chain within law enforcement. The representatives in the Justice chain seem to have become accustomed to the Council: where, in the first instance, the Council was regarded by some as a new phenomenon, it has now become interwoven with those organizations. For several years now, the previously experienced inspection pressure has been replaced by enthusiasm when conducting investigations. The organizations are now seeing the benefits of the inspection reports.
There has also been some divergence in the investigations, over the course of time. That is also logical, given the differences in practice between the countries. The experience in the various countries lies with the follow-up of recommendations. The Council is expected to provide tailored advice for each respective country. The overarching function of the Council is, however, indeed of added value: the comparison and cooperation between the countries is also part of the Council’s mission. In view of the developments in the reports and recommendations made per country, the Council will, soon, put more emphasis on St. Maarten. St. Maarten is lagging behind the other countries.
The Council, but also other bodies within and outside of Sint Maarten, have already expressed their concerns. Equally, the Council has a role to play here: In the end, there must be improvement and progress in the way the judicial chain functions. For experience of the Council but also insight in this respect I refer you to the annual ‘ State of law enforcement ‘, which is directly addressed to the Minister of Justice and parliament.
The Council’s reports as well as the annual ‘ State of law enforcement’ are all posted on the council’s website (www.raadrechtshandhaving.com). These documents are the core products of the Council.
2017: Hurricanes Irma and Maria
In 2017, Sint Maarten had to endure a catastrophic blow. With the passing of Hurricanes Irma and Maria, society was thrown many steps back in time. However, with the assistance of other countries, law enforcement too has demonstrated to be resilient. The Council has expressed its admiration for this and concludes that that the organizations of the judicial chain are well anchored.
Following the Hurricanes, the Council itself also had to carry out a re-organization. The council’s office in Philipsburg was devastated and there was a budgetary uncertainty about the future. Vacancies at the secretariats Sint Maarten and the Caribbean Netherlands have been halted, and cooperation between these two secretariats has intensified. With less capacity, the Council has proven to be able to execute the annual plans 2017 and 2018 for the bigger part as well. The implementation of the annual plan has been carried out in an efficient manner. The Council has also set up a new fixed workplace in Pointe Blanche. The secretariats Sint Maarten and the Caribbean Netherlands intend to further optimize this cooperation through further intensifying cooperation.
2018: Sint Maarten under reconstruction
The enormous impact of the Hurricanes in 2017, however, has also brought a different sentiment to St. Maarten: Build back better. On all fronts, St. Maarten is attempting to comeback better than before, from the rubble of nature’s wrath.
This requires lots of willpower and conviction. Plans are made on many fronts. Also, in the area of law enforcement — Build back better is applicable. The Council is therefore convinced that the current state of affairs will provide opportunities for the future. The Council expresses the hope that these opportunities will be exploited. The examples of cooperation between the KPSM and the Police of the Netherlands serve as a key illustration of what is possible when working well together.
Above all, it shows what is possible when two minds think together. With the latter, the use of seizing opportunities for a good reconstruction begins.
II. The Council’s legal perspective
From a legal perspective, the Council plays a role both in the field of public and private law. More specifically, the Council plays a role within and for the benefit of public and administrative law, national and international criminal justice, and civil law.
The rule of law
The Council has a role to play in ensuring the rule of law.
The “statute” or Kingdom Constitution, laws and regulations, as well as the system of norms and values that we call the rule of law, define the framework within which the organizations must act and is thus the Council’s playing field. From our own experiences, but also from reports, it is apparent that there is still much progress to be made in the field of justice. In addition, as is the case for all sectors, the judicial sector is constantly on the move. It is therefore in the interest of society that bottlenecks and matters for improvements are addressed in a constructive manner and provided with an opinion on possible solutions. There is also a need to assess and measure progress, standstill, or delays. In this way, ministers can also give substance to their ministerial responsibilities.
Executive and controlling function
The Government, Council of Ministers and the Parliament should legislate, implement, execute and enforce. The Parliament has a controlling function as regards to the implementation of the policy. However, practice shows a lack thereof. The Council has pointed out in several reports that the Parliament does not function in its controlling role. There are several causes and reasons for this, many related to St. Maarten being a very young democracy. The transition to dualism may also play a role here. The Council’s role is to be critical on both the Government and the Parliament. It tries to be instrumental in doing so by carrying out its role in a supporting way. This fits into the system of checks and balances.
The reports of the Council are to support the Government and the Parliament in their constitutional roles and their functioning.
The functioning of the Government and therefore that of the judicial chain must be in the spirit of the law. This requires legislation to be adapted to the social desirability and to equip law enforcement authorities. The Council identifies obsolete laws and regulations in many areas. This can still be functional. Society is on the move and, as has been said before, so is the judicial chain. Legislation cannot be left behind. The sealing of legal imperfections with practical solutions should not be a prolonged practice.
None of the organizations may be required to be fully aware of all the requirements of the overarching legislation for the entire chain.
The added value of the Council’s reports is therefore that the inspections identify shortcomings and indicate the desirability of making choices and taking decisions in such cases. Over time, the Council has in this way thoroughly assessed legislation over the entire chain. The Council is impressed by the improvising capacity of agencies to provide practical solutions to factual or legal imperfections. However, practical solutions should have a temporary character. In practice, it often means that practical solutions without further decision-making are of a structural character.
The Council continues to monitor recommendations and therefore maintains a continuous overview of the state of play in law enforcement. Because of the powers of the entire chain, the Council can assess the functioning of the chain from a helicopter view.
The council from a criminal law perspective
The Council’s investigations are aimed at the management, quality and effectiveness of the organizations in criminal law enforcement. The Council therefore does not look at individual criminal cases. Indirectly, the Council considers how the government deals with criminal law and, in particular, the investigation and prosecution in such cases. Research into prosecution policy, scrutiny of legal principles and, of course, the obedience of the law, are part of the Council’s review framework.
Inspecting the handling of suspects and detainees is a topic to be examined annually. The detention system is an important part of the chain. For St. Maarten, this part is very poorly organized. Unfortunately, and despite repeated investigations and recommendations, the Council has not yet been able to observe any positive changes in the detention system which should be brought to an acceptable level. The Councils’ reports of 2016 and 2017 have observed violations of human rights. That is a bad development. The fact that nothing structural is done about this is an even worse observation. Commitment from the administrative authorities in this area is hardly perceptible.
The Council from an administrative and civil law perspective
The Councils’ reports on the detention system on St. Maarten have been presented to the Minister of Justice as supporting evidence in connection with a lawsuit against the Association of Prisoners (Inmates Association). In his judgement, the judge, based on these reports, proceeded to order government to carry out improvements in the detention conditions under threat of a penalty. Thus, the Councils’ reports are acknowledged substantive evidence to be used in administrative law, civil justice, and in criminal matters.
III. Recommendations for the future
Since 2012, the Council has made more than 350 recommendations regarding St. Maarten’s judicial chain. Review studies show that about half of these recommendations were followed to a greater or lesser extent.
In particular, where the organizations were able to implement recommendations themselves, this was the case. Where the government authorities were also required to do so, the outcome is depressingly different.
In the state of law enforcement 2016, the Council has considered the state of affairs and the prospect of law enforcement in detail. To this end, the Council carried out an analysis which concluded that there were structural bottlenecks that could be categorized into seventeen categories. In the state of law enforcement 2017 – issue May 2018-the Council came to the same conclusions. However, the passage of the Hurricanes Irma and Maria has revealed even more vulnerabilities. This led, on the one hand, to hard but factual conclusions, but also to the observation of opportunities for improvements. The momentum in which St. Maarten found itself in immediately after the Hurricanes was specific reason to seek cooperation within the Kingdom. The Council believes that this is the key to a hopeful future. To this end, however, there must be willingness on both sides of the Atlantic. The Council sees that the chain itself is a great supporter of cooperation. The results do not lie. It is important that politicians on this island also become aware of this and start listening to the professionals in the field.
The ability of the organizations
The Council considers it important to dwell on several important developments which have occurred because of the passage of the Hurricanes. The passage of the hurricanes, especially Hurricane Irma, has changed St. Maarten, within a few hours, in a disaster area. In the hours and days after, extreme situations arose in the area of maintaining public order and security. The core of law enforcement was faced with a situation totally unprepared for. With a high level of improvisation and cooperation, the enforcing organizations have, within a short period of time, drawn up an approach required for those circumstances. With very limited resources, they were able to recover from the chaos and disorder, particularly after the necessary military assistance and police assistance from the other countries arrived. The Council therefore has a positive view of the ability of these organizations to cooperate in an ad hoc setting in such circumstances and to achieve results. This is already an admirable result.
Follow-up recommendations
In the case of a comparison between the countries, it is quickly apparent that St. Maarten is lagging behind with the Council’s recommendations. When it comes to the follow-up of recommendations, the Caribbean Netherlands is leading. In the Caribbean Netherlands, the reports are consistently considered by the respective minister, and the organizations are also better placed to work with the recommendations. In Sint Maarten, the picture shows the contrary: the organizations themselves can work with the recommendations as far as possible, but they hardly get any (policy) support. Parliament has not addressed the government that there is no or little consideration for improvements. In fact, in some cases this could not be because several council reports to date have not been offered to the Parliament. The controlling task of the Parliament on the Government thus loses its importance. This creates the image that the administrative authorities remain far from implementation. As a structural bottleneck, the Council already mentioned the attention of the administrative authorities for law enforcement.
Law enforcement
Without the full attention of the Government, the availability and allocations of enough resources, policy making, and awareness law enforcement cannot be guaranteed!
To guarantee law enforcement I’m strongly of the opinion that St. Maarten should mainly seek cooperation within the Kingdom of the Netherlands. More so when seeing the current financial situation Sint Maarten finds itself in. Sint Maarten lacks the necessary resources for better construction and execution of law enforcement, which is desperately needed to safeguard its people particularly after the passage of Hurricane Irma.
Conclusion
Looking at the agencies and people who are active in law enforcement on Sint Maarten I must say that they care enormously for their work! They work with conviction! They are dedicated! They are committed! And that’s where it all starts in building back better the Justice chain and law enforcement on Sint Maarten.
Continuing building back better and stronger the full attention of Government in adequately guaranteeing law enforcement is imperative!
In concluding, permit me to offer three solutions respectively 3 recommendations going forward, which I believe will lead to a structural enhancement of the Justice Chain and thus provide the golden key for success in guaranteeing a better Justice chain and law enforcement on Sint Maarten on all levels.
The solutions I offer are:
1. Cooperation;
2. Cooperation;
3. Cooperation.
Reason for my offer is that cooperation leads to empowerment.
Which brings me to the following recommendations:
1. Search together within the Kingdom for solutions!
2. Once you have found and decided on the solutions, carry them out them together!
3. Once the solutions have executed, be proud together of the result!
<!– Disqus comments block —
Source: St. Martin News Network http://www.smn-news.com/st-maarten-st-martin-news/30836-franklyn-richards-bids-farewell-to-law-enforcement-council.html
View comments
Hide comments