Analysis of the instruction: Good for Sint Maarten but not good for the Governor

POSTED: 10/14/13 12:25 PM

Today asked extraordinary professor in constitutional law Arjen van Rijn to shed his light on the instruction the Kingdom Council of Ministers gave last week to Governor Holiday to order an integrity investigation. Van Rijn concludes: Sint Maarten did not object to the decision, and the authority of the governor is at stake.

St. Maarten / By Arjen van Rijn – Last Thursday the text of the instruction from the kingdom government to the Governor of Sint Maarten was published in the Staatscourant. That text is short. The governor has to order an independent investigation into to quality of the public administration in Sint Maarten, measures by the standards of integrity and constitutionality, and report within six months to the Kingdom Council of Ministers. The explanatory notes contain an explanation about why this investigation is necessary. The investigation has to focus on the “well-known specific vulnerable sectors like prostitution, gambling, and immigration and on well-known generally vulnerable sectors like (permits for) infrastructural projects and (other) large tenders.” The public administration that is to be investigated includes ministers, ministries and those who work for them, as well as government-owned companies. All country institutions are obliged to cooperate with the investigation.

Obviously the reactions to the announced investigation are diverse. The general trend in the media is: this is apparently necessary. Dutch politicians say practically in unison that it is very necessary. Politicians in Sint Maarten mostly wonder: is this really necessary? The Prime Minister of Sint Maarten is using bold words, reproaches the Netherlands even neocolonial behavior and speaks of a shameless and meddlesome interference in the internal affairs of Sint Maarten.

To begin with this last issue: Sarah Wescot-Williams was present last week Friday during the discussion and the decision making process in the Kingdom council of Ministers, next to the Minister Plenipotentiary who represents the government of Sint Maarten officially. Normally the Kingdom Council of Ministers decides by consensus, that is to say that everybody present agrees with the decision. If the Minister Plenipotentiary of the Caribbean country concerned is against a proposed decision, he can declare himself against it; subsequently continued consultation takes place. Five people take part in this continued consultation (also called internal appeal): three Dutch ministers including the Dutch Prime Minister in his role as chairman of the Kingdom Council of Ministers, the Minister Plenipotentiary of the country concerned and another flown-in person or minister of that country. In this continued consultation attempts are also made to reach consensus. Given the vote-relation this means that the Dutch Prime Minister always has the decisive vote. A rather frustrating perspective, but at least then everybody knows that a decision has been taken against the will of the country involved.

All this did not happen last week. Sources said that it went like this: the chairman of the Kingdom Council of Ministers has asked in the framework of the consensus-finding if there was somebody present who could not agree with the decision; the Ministers Plenipotentiary of Curacao and Sint Maarten reported themselves; that was noted with the conclusion that the decision had been accepted. Sint Maarten did not object and a continued consultation did not take place either; Sint Maarten failed to demand this. This means nothing else than that the government of Sint Maarten agrees with the instruction to the governor and with the investigation – at least that it resigns to the fact that this happens.

The Kingdom Council of Ministers has weighed the – absolutely not incomprehensible – pros and cons and decided that an investigation is necessary to be able to assess whether there is really something going on. Who is able to be against that? If governance and integrity is in such a bad state it is better to know this. If this is not the case it is pleasant to know that too. Part of the rules of the game is that you loyally execute a decision that you have taken together with others, in so far as you have a role to play in it. Other flavors are not available. In this perspective it must be unthinkable that the government of Sint Maarten would use its authority to prohibit civil servants to talk with investigators. Asked about this Sarah Wescot-Williams has only said that she has the authority – not that she will use it. She knows the possibilities and impossibilities. Someone who does not object with all available means against a decision cannot distance himself from it afterwards.

I am more concerned about the position of the governor. It is traditionally complicated because of the double hat he is wearing. On the one hand he is the head of the country government, he has not authorities in that quality and he has to do what the ministers order him to do. On the other hand he is the representative of the kingdom government, he safeguards in the quality the interests of the Kingdom and he is under the instructions of the Kingdom government.

The instruction that was published on October 3 is an example of this. Based on article 15, paragraph 1 of the standing orders for the Governor of Sint Maarten (which has the status of a Kingdom law) the kingdom government is authorized to give instructions to the governor.

In my opinion the instruction to have an investigation take place is a permissible way to use that authority. But the governor will undeniably end up in heavy political waters. The subject the governor will have to occupy himself with could hardly be more explosive. That is not good for his authority as the substitute head of state that has to stand above parties and that must unite instead of split.

The kingdom government therefore is taking a big risk with the instruction, namely that he could become the subject of controversy and that he will no longer be able to function in a credible way as the head of the country government and as a unifying factor. For this reason it would have made more sense when the order had not been put in the hands of the governor but that another solution would have been found to have the investigation take place.

In the past the credibility of the governor has always been an important point of consideration when the kingdom-hat of the governor was at stake. The infamous affairs Van der Meer and De wit in the fifties of last century, shortly after the colonial era, have led to the conclusion that the governor had to perform his kingdom functions as much as possible in the shadow of his country functions and behind the scenes. By all means, no waves around the governor. It was not possible to maintain this always for one hundred percent. The governor of the Netherlands Antilles exercised supervision in 1992 on behalf of the kingdom during the period Sint Maarten was put under higher supervision. Once upon a time the governor of Aruba stopped the appointment of a minister. Both events resulted in critical comments but they did not cause permanent damage. The caliber of the current instruction to the governor of St. Maarten could be of a completely different nature.

The eminent constitutional law jurist, the late Carlos dip has always spoken out against uniting the two functions of the governor in one person. Not only because this undermined his authority as substitute and standing above the parties head of state, but also because the kingdom had a direct peek into the kitchen of the country government through the governor’s double hat. He considered that neocolonialism. In essence he is unfortunately still right.

There remains a lot to be said in favor of alternative supervision mechanisms that fit better with the modern relationship between equal partners. Of course the governor’s current hinge-function offers a lot of advantages. For the kingdom government it offers currently a practical entry to investigate the country administration of Sint Maarten. But that what offers the most advantages is not always the best for sustainable relationships.

In the meantime it is the way it is. The Minister plenipotentiary of Sint Maarten has asked the Kingdom’s Council of state its opinion about the instruction but it is questionable whether the Council of State considers itself authorized to say something about this matter. The opinion of the council of state can anyway not be binding.

The ball remains therefore in the governor’s park and it will not be an easy task for him. The task for the prime minister and the ministers is to take a position whereby the governor’s cabinet sustains no unnecessary damage. A fundamental discussion about the use and necessity of the double hat is necessary but will have to wait until another moment.

Arjen van Rijn is extraordinary professor constitutional law and constitutional reform at the UNA in curacao and attorney/partner at De Clerq (Leiden/Den Haag).

 

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Analysis of the instruction: Good for Sint Maarten but not good for the Governor by

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