Update: Court of Appeal quashes acquittals, sentences three ‘Masbangu’ suspects

PHILIPSBURG–The Court of Appeals, on Wednesday, sentenced three of the four suspects in the so-called “Masbangu case” concerning the buying and selling of votes on behalf of United People’s (UP) party during the September 17, 2010, parliamentary election.

  Defendants Robert C.H. James (65), C.J.L.C. (48) and Ashwin R.W. Martina (46) were suspected by the Prosecutor’s Office of selling their votes. Roy Heyliger (63), the uncle of UP party leader Theo Heyliger, was suspected of buying the votes and of mediating in the sale on behalf of UP.   The Court of First Instance on September 14, 2016, acquitted all suspects of all charges. The Joint Court of Justice, however, was of a different opinion and sentenced James, Martina and Heyliger to three months suspended, on two years’ probation, and to payment of a fine of NAf. 300 for bribery.   The Joint Court upheld C.J.L.C.’s acquittal, as in contrast with his co-defendants it could not be proven that he had actually been involved in the sale of his vote.

  The Prosecutor’s Office had requested three-month prison sentences, on two years’ probation, with 150 hours of community service for all suspects.   Contrary to the Prosecutor’s demand at the Court of First Instance, the Solicitor General refrained from calling for the deprivation of the defendants’ right to vote. He explained that the new Penal Code only provides for a punishment of this nature in connection with prison sentences of one year or more.

  The Prosecutor’s Office had filed for appeal as it disagreed with the acquittal of all (attempted) bribery charges. To consider bribery proven it needs to be ascertained whether an agreement was made between sellers and buyer on the way in which the sellers were to exercise their right to vote in the election.

  The judge of the lesser court did find it proven that money was paid out by Heyliger to the suspected law enforcement officers, who received envelopes containing US $300, with the apparent intention to influence their voting behaviour. However, it could not be ascertained that payments were made for a “reciprocal service,” namely a vote for a certain party or that attempts were made to reach such an agreement. “What is missing is a handshake,” the Court of First Instance stated.

  All defence lawyers pointed out that the distribution of “paraphernalia” and goods and services to people during election time was part of Caribbean culture and pleaded for their clients’ acquittals. The lesser court had accepted the lawyers’ statements that this habit of influencing voters was common practice in St. Maarten.

  According to the Solicitor General, no explicit agreement of vote buying was necessary to consider the case proven. He also pointed to the statement of co-suspect V.W., who in the meantime has passed away, who had told the Police: “I understood that the UP party was giving out money to people for them to vote for the UP party. This was spoken at the Police Station in Philipsburg.”


  The investigations into this case started almost directly after the 2010 election, as the late telephone operator of the St. Maarten Police Force was angry and felt “screwed” because she had not received any money.

  The clear cause and the confirming statements of suspects provided the Prosecutor’s Office from the onset with a position of evidence it rarely has in cases such as these, the Appellate Court said in the verdict.

  The Court stated that in similar cases in the Netherlands no different decision would have been made. Also in the Netherlands cases of election fraud have been prosecuted, for instance where it concerned the manipulation of voting machines and the abuse of voting by proxy. Claims that in this case shots were fired by a “Dutch gun at a Caribbean mosquito” were dismissed.

  “It may be that it apparently is tradition on all Caribbean islands to help people during election campaigns, but the aid may of course not go beyond the Caribbean’s own penal boundaries. One of the boundaries is bribery. The limit was drawn there in the Penal Code of the Netherlands Antilles and this has not been changed in the law books of St. Maarten,” the Joint Court stated.


  The Court found it proven that Martina and James had received envelopes with $300 in exchange for their votes on the UP party. “On the street I heard that the UP party was giving away money to people in need. I needed some help. I got a quotation for building materials. With this quotation I went to Theo’s office…in Pointe Blanche…We got to speak to Roy Heyliger. We went into his office. He took all of our information,” James, who was a member of the Voluntary Corps St. Maarten (VKS) at the time, told the Police.

  Heyliger confirmed that he had met James at the UP office during the 2010 election campaign. “I knew Robert James from back in the days and he came by me with his financial needs and so did the officers that accompanied him that day…We asked where they lived, address, and tried to convince them to vote for the UP party…The purpose of taking the information [was – Ed.] to see if they were registered in the voting system and if they were eligible to vote,” Heyliger told the Police on September 7, 2012.

  On September 16, 2010, Heyliger gave James three envelopes each containing $300. The envelopes were wrapped in a dummy ballot. Heyliger told James that the rest of the money would follow after the election. James kept one envelope for himself and gave two other envelopes to co-defendant Martina: one for him and one for suspect C.

  According to the Joint Court, this was a clear case of bribery. James, Martina and suspects W. and C. all went to the office of the UP party leader to obtain money in exchange for their vote. James and Martina both received an envelope.

  Suspect C. was acquitted because he, similar to W., never received an envelope. In other words, he never received a gift or a promise, the Court said. 

Source: The Daily Herald https://www.thedailyherald.sx/islands/65629-update-court-of-appeal-quashes-acquittals-sentences-three-masbangu-suspects