LEIDEN/NIJMEGEN–Constitutional Law experts Professors Arjen van Rijn and C.A.J.M. “Tijn” Kortmann both say the announced plan of the new William Marlin Cabinet to have the decree to dissolve the St. Maarten Parliament voided is legally not possible.
“The task of this new Government is clear: it has to prepare the elections,” said Van Rijn on Thursday. He said this task had been stated clearly in the formation assignment.
“If you ask me whether it is legally permissible to pull back the dissolution decree, my answer would be without a doubt, ‘No, that is not possible,’” said Kortmann.
Van Rijn and Kortmann, both residing in the Netherlands, made their statements in relation to remarks by St. Maarten Democratic Party leader Sarah Wescot-Williams, who said at a press conference on November 2 that there was “sufficient reason” to annul the dissolution decree.
This national decree, signed by then-Prime Minister Marcel Gumbs and Governor Eugene Holiday on October 28, resolved to dissolve the Parliament and to hold snap elections on February 9, 2016.
Wescot-Williams stated at the press conference that the decree in question contained “blunders” and was based on “wrongful ground.” She confirmed that when the new Cabinet took office, it would prepare a new national decree to annul the one of the Gumbs cabinet. She said new elections would not solve the problems of Members of Parliament (MPs) jumping ship without addressing the urgent need for electoral reform.
However, in Van Rijn’s opinion reversing the dissolution decree completely opposed the intention of the dissolution regulation in the St. Maarten Constitution that enables the Council of Ministers to strike back at the Parliament in case of an adopted motion of no confidence.
It concerns an autonomous right that only the Council of Ministers has and that cannot be restricted by the Parliament. “If a subsequent cabinet would have the right to reverse the dissolution decree, the very core of this autonomous right would be hollowed out,” Van Rijn said.
Van Rijn and Kortmann supported the Gumbs cabinet’s decision to dissolve the Parliament in the situation that arose after the September-30 motion of no confidence. Both experts submitted an advice to Prime Minister Gumbs early October.
“The new cabinet has to implement the dissolution decree. I see no other way,” Van Rijn told The Daily Herald.
“Annulling the October 28 decree is not possible for a simple reason: some decisions cannot be reversed,” said Kortmann in an invited comment. He gave the example of a police officer ordering the driver of a car to stop. “The officer cannot undo his decision when the driver of the car is already stopping his car, because it has become a fact.”
According to Kortmann, a signed-off and sealed decree to dissolve the Parliament signified the “death” of Parliament. “You are dead. You cannot undo death. Reversing the dissolution decree would mean the end of the right to dissolve the Parliament.”
Source: The Daily Herald ‘St. Maarten dissolution decree cannot be voided’