~ Marlin: Council of State session outcome a victory ~
THE HAGUE–Through the mediation of the Council of State of the Kingdom, the Government of St. Maarten and the Netherlands agreed on Thursday that they will resume talks in an open atmosphere without Dutch pre-conditions to arrive at a new text for the National Ordinance to establish the St. Maarten Integrity Chamber based on the contours of the ruling of the St. Maarten Constitutional Court. The process to implement the general measure of the Kingdom Government will be shelved. St. Maarten Prime Minister William Marlin spoke of a “victory.”
At the end of an almost three-hour session including four interruptions for consultation, hosted by the Council of State of the Kingdom in The Hague on Thursday, the St. Maarten and Dutch Governments signed an agreement stating that the negotiations between the two countries will take place in an open manner, without the involvement of the quartermasters of the Integrity Chamber, Raymond Begina of St. Maarten and Hans Leijtens of the Netherlands.
The St. Maarten Council of Ministers will promote that the new National Ordinance to regulate the establishing, functioning and funding of the Integrity Chamber will have been passed by St. Maarten Parliament by October 31, 2017.
The Council of State recognised that it was the right of the lawmaker, in this case St. Maarten’s Parliament, to approve or reject a draft National Ordinance and that it could only ask St. Maarten Government to make a real effort to have the legislation for the Integrity Chamber passed.
“I understand that you don’t have authority over Parliament, but there is an obligation to make an effort,” said Chairperson of the Council of State session Winnie Sorgdrager.
This was a sensitive point for the St. Maarten delegation, which did not want to be pinned down to a pledge, thereby effectively bypassing the authority of St. Maarten’s Parliament as lawmaker, as well as the input of the local Advisory Council and the authority of the Governor.
As part of the agreement, the Council of State requested that the Dutch delegation, which consisted of representatives of the Ministry of Home Affairs and Kingdom Relations BZK and legal counsel J.W. Severijne, facilitate the withdrawal of the request for advice by the Council of State of the Kingdom on the draft Algemene Maatregel van Rijksbestuur (AMvRB) law which was approved by the Kingdom Council of Ministers in April 2017.
Prime Minister Marlin especially found this aspect to be an important result of Thursday’s session. “This basically ends the process initiated by the Netherlands basically to order an Integrity Chamber, facilitated and paid for by the Dutch, via an AMvRB,” he told The Daily Herald after the session.
“What we argued all this time, namely that the Netherlands cannot walk away because it doesn’t like the way things go and then go to the Kingdom Council of Ministers under the disguise that there was a dispute that could not be solved otherwise or that they couldn’t control. The Netherlands misused its authority,” said Marlin.
Marlin said he was also very pleased that the Council of State recognised the authority and independent position of Parliament, Advisory Council and the Governor of St. Maarten.
“This is true victory for St. Maarten. The ruling of the Constitutional Court which threw out all the points that the Netherlands had inserted will now be used as a basis for a new National Ordinance. This is our ordinance and the Integrity Chamber belongs to St. Maarten, not the Netherlands,” he said.
Making use of a dispute regulation provision in the May 2015 protocol signed by St. Maarten and the Netherlands, St. Maarten had gone to the Council following the April 7, 2017, decision of the Kingdom Council of Ministers to impose a General Measure of the Kingdom Government AMvRB to establish the Integrity Chamber.
The Council, as mediator, held a hearing on Thursday with both parties, the St. Maarten Government and the Dutch Government. The two parties presented their cases in front of a five-member panel of judges of the Council of State consisting of Winnie Sorgdrager, Frits Goedgedrag, Luc Verhey, Sylvia Wortmann and Guus Heerma van Voss.
St. Maarten’s legal counsel former Antillean Justice Minister Rutsel Martha contended that the Dutch Government had violated the May 2015 protocol and the principles of good governance and had neglected to act as a trustworthy partner in the execution of the protocol. He said it was important that the principle of equality of the partners in the Kingdom was adhered to.
According to Martha, the Dutch Government acted “prematurely” and was wrong by going to the Kingdom Council of Ministers to force the Integrity Chamber down St. Maarten’s throat. “There was no reason to go to the Kingdom Government since there was an agreement, through the protocol, how to deal with this matter,” he said.
Martha described the acts by the Dutch Government as those of a spoiled child who tried to force through its will one way or another. “Can you take a different path and force through your will if you don’t agree or if there is no solution to your liking?” he asked.
Martha criticised the manner of the Dutch Government a few years back when it basically forced St. Maarten’s Parliament to accept the National Ordinance to establish the Integrity Chamber with a law text that contained many parts that were put in by The Hague.
“The question is whether St. Maarten’s Parliament can be forced to act as a rubber stamp under the threat that if it didn’t agree, there would be punishment in the form of an AMvRB. That is a violation of the principle of good governance and against the principles of a democratic state of law,” said Martha.
St. Maarten has always remained willing for talks as equal partners to arrive at a joint solution, Martha said, “but the Netherlands didn’t want to hear that.” He said the guarantee function of the Kingdom can only be enacted when all other means have been exhausted. “Together we have the responsibility for good governance in the Kingdom, to solve things together. If we stick to that, there is no need to go to the Kingdom Government to force things through via an AMvRB.”
The Dutch legal counsel Severijne claimed that St. Maarten had taken too few measures to tackle integrity issues. He said that fact was that a part of the protocol which intended to strengthen law enforcement in St. Maarten was not executed and that the protocol had been declared void by the Parliament and Government of St. Maarten. “If integrity has such a high priority, then why was nothing done with the suggestions of the Constitutional Court?” he asked.
Council of State Member Wortmann questioned why the parties had not arrived at a joint solution. “It is clear that something needs to happen to bring the parties back together,” he said. “The Constitutional Court has said that a new National Ordinance should be drafted and that it was of crucial importance to have an Integrity Chamber. Wouldn’t it be logical to reopen the negotiations to arrive at a new text for the National Ordinance?”
St. Maarten legal counsel Martha contended that St. Maarten was flexible and that it had approached the Netherlands for talks, “but the answer was ‘no’ and the Netherlands said it would go to the Kingdom Council of Ministers. It was either their way or no way.”
Martha said St. Maarten was willing to enter into talks with The Hague, but that these had to take place in an open and honest manner. “We cannot have the Netherlands demand that certain aspects are included in the National Ordinance and if that doesn’t happen it will go to the Kingdom Government.”
The Council of State made clear that it wanted open talks without pre-conditions and that the talks would focus on a new National Ordinance based on the contours of the Constitutional Court. The Council wanted clarity who would engage in the talks and when these talks would yield concrete results. “We are here to solve a dispute and otherwise we will be back here next year.”
The session was adjourned for the two parties to consult. After the break, the Dutch delegation stated that it did not have a mandate to take decisions, but the delegation did state its conditions for new talks. These conditions had not been discussed with the St. Maarten delegation during the break. Martha saw this as proof that the Netherlands was not up to an open discussion. “You have heard the message of the Netherlands, how this is to take place. I rest my case.”
The Council of State then made its final proposal. “You will have talks and draft a new ordinance based on the contours of the Constitutional Court before November 1. A lot has happened. We say: ‘start over,’” said Chairperson Sorgdrager.
The Council asked to be informed before November 1. It was agreed that St. Maarten could involve Aruba and Curaçao in the process.