PHILIPSBURG–The Constitutional Court of St. Maarten in its public hearing on Friday referred to the Ombudsman a petition of local resident Lisa Alexander to conduct a lawful assessment of the publication and entering into force of the National Decree of December 14, regarding the shifting of the date of elections from February 9, to September 26.
If the Ombudsman considers it valid, the petition could be brought back to the court for a review. Alexander said afterward that she would have to accept the decision, but would continue fighting by taking her case to the Ombudsman.
Asked if she still wanted to go the polls on February 9, she said it was not about the election but about a procedural error resulting in the latest decree being in contravention of Article 89 of the Constitution.
She wanted the Constitutional Court to instruct the William Marlin cabinet to continue preparations for the February 9 elections as per National Decree of October 29 (from the Marcel Gumbs Cabinet). She also recommended that Parliament be informed that it has been dissolved as of December 15, to take effect on March 14, and she also wants the Council of Ministers to tender their resignations immediately to the Governor for consideration, to be signed when the new Cabinet is installed.
Alexander also recommended that the Marlin Cabinet be declared a caretaker Government as of December 15, and wants the Electoral Council to be instructed to continue final preparations for February 9 election and that the Central Electoral Committee be instructed to finalise preparations for elections.
Alexander said despite the National Decree of December 14 being erroneously enforced, the impact of the actual and legal consequences of overturning it on the Election process would be very limited. “This is so because the general public, statutory bodies and political parties were acting under the National Decree… (of October 29) until December 15, 2015.”
In her petition dated January 6, Alexander said on October 28, 2015, the National Decree (LB-15/0951) was “enacted” by the Marcel Gumbs Cabinet in accordance with Article 59 of the Constitution, which states that parliament may be dissolved by national decree. The dissolution shall also require new elections to be held for Parliament which has been dissolved and the newly elected Parliament to meet within three months and that the dissolution shall take effect on the day on which the newly elected Parliament meets.
In that National Decree, it was stipulated that the dissolution of parliament was to take effect on Monday, March 14, 2016 and election for Members of Parliament (MPs) would take place on February 9. This national decree was to enter into force on December 15, 2015 and was to have been published in the National Gazette. The National Decree was published on October 30.
The National Decree of October 28 contained an error as it enumerated 47 days between the date set for the nomination of candidates and that of voting as the Election Ordinance Article 40 states: “The date of voting for the election of Members of Parliament shall be enacted by national decree on the proposal of the Minister of General Affairs, in such a manner that at least 48 days lie between the date of nominations and that of voting.”
To meet the requirements of the Election Ordinance the error had to be corrected, this was done and a new decision made on October 29, and with the correction made, maintained the same purpose, which related to the dissolution of Parliament.
The second decree stipulated that the dissolution of parliament will take effect on Monday, March 14, 2016, and election be held on February 9.
Alexander said, however, that the current government (the William Marlin Cabinet) proposed an amendment to the National Decree of October 29 suggesting that the dissolution shall take effect on October 31, 2016, and elections be held on September 26. The National Decree was to have entered into force on the date of signing and would be published in the National Gazette.
Alexander said contrary to this, Article 89 of the Constitution of St Maarten states the publication and entry into force of national ordinances shall be regulated by national ordinance. They shall not enter into force until they have been published.
“Additionally, from the Explanatory Memorandum to the National Ordinance publication entry into force…Pursuant to Article 89 of the Constitution, national ordinances do not enter into force before they have been published. This provision also applies to national decrees containing general measures, pursuant to Article 91 (4) and to ministerial regulations, pursuant to Article 91 (5).
“Finally, the provision regarding publication of orders enacted by public bodies or independent administrative authorities pursuant to the national ordinance, referred to in Articles 97 (2) and 98 (2) respectively applies before they enter into force.”
Alexander contends that the National Decree of October 29 and the National Decree of December 14 were subject to the procedural regulations of Article 89 of the Constitution. She said because both National Decrees (October 29 and December 14) contained the same general measures, the National Decree of December 14, should have been published (made available to the public) on a date prior to midnight of December 15, 2015, before the National Decree of October 29 entered into force on this same date.
Alexander said the statement that the decree would enter into force on the date of signing and would be published in the National Gazette is being erroneously acted upon by Government, not taking into account the National Decree of December 14 was realized as a result of new decision making with a new decree number and was subject to Article 89 of the constitution as was previously done with the National Decree from October 29 in order to effectively replace the one from October 28.
“This procedural error contravened the publication and entry into force regulation, Article 89 of the Constitution of St. Maarten,” Alexander concluded. “This procedural error allowed National Decree (Landsbesluit) 29 October 2015 LB-15/0992 to enter into force “as is” i.e. as published in the National Gazette No 23 of 2 November 2015.”
Source: The Daily Herald UPDATE Court refers Alexander election petition to Ombudsman