Analysis: Screening of candidate-ministers seems at odds with constitution

POSTED: 10/22/14 10:07 PM

St. Maarten / By Hilbert Haar – Screening? What screening? Nobody has asked this simple question yet, because everybody has been either busy and confused, or excited and angry about the humongous cloud of dust the Kingdom Council of Ministers created with its instruction to Governor Holiday for additional screening of candidate-ministers. One may well wonder which instruments the experts Minister Plasterk wants to send to St. Maarten have at their disposal to find something so wrong with one of the candidates that this will give reason to ban them from becoming a minister.

St. Maarten’s constitution sets one simple condition: “To be able to be a minister requires that one has the Dutch nationality and that one is not barred from the suffrage.”

That’s it. The constitution does not set rules for levels of integrity, a criminal history or even a criminal record. The only exception would be a court sentence that takes away a candidate’s active and passive voting rights.

The Constitution stipulates in article 34 ten specific functions a minister cannot have during his or her term in office (like governor, ombudsman, Member of Parliament). There is an option to exclude additional public functions, but this has to be regulated in a national ordinance that has the support of at least two-third of the Members of Parliament.

A minister who has been elected to Parliament – as is the case right now with Prime Minister Sarah Wescot-Williams, Vromi-Minister Maurice Lake and Minister of Public Health, Social Affairs and Labor Cornelius de Weever – is allowed to combine this position with the function of minister for a maximum of three months.

Candidates also have to consider the national ordinance Integrity-promotion Ministers. That ordinance stipulates that ministers (mind you – not candidates) must submit a written declaration to the prime minister within thirty days of taking office.

The ordinance obliges ministers to write and sign this declaration “clearly, distinctly and without reservation.” He has to stand for the accuracy of what he declares about his spouse or partner, “insofar he was aware or should have been aware of it.”

On request, the spouse or partner has to provide the information the minister needs for this declaration. The document has to include an accurate description of business interests, assets (in St. Maarten and abroad) and the nature of side-jobs and side-activities. Remuneration or other advantages linked to side-jobs also have to be listed. The fifth requirement is an accurate description of business interests and other assets of children.

There are some additional details in the ordinance, but they are relatively unimportant.

What happens with this information? The prime minister decides, after hearing the minister, which business interests, side-jobs and side-activities are undesirable for a proper execution of his job. Maintaining impartiality, independence and trust are part of these considerations.

Before the prime minister takes a decision, he or she requests advice from the Council of Advice and the General Audit Chamber. The minister – and his spouse or partner – is obliged to terminate undesirable interests, side-jobs and side-activities. Within thirty days after a decision, the minister has to submit a written declaration that describes the new situation.

The prime minister submits her own declaration to the Council of Advice.

The judge of instruction has the authority to ask in writing for a review or a copy of the declarations, if there is a suspicion that a minister has committed a crime. The ordinance lists eleven possible crimes that fall within this scope, including money laundering.

The explanatory notes with this ordinance refer in the first paragraph to integrity. “Politicians are role models. Their actions and inactions affect the civil service and the society. There is a balance of power in the relationship between citizens and the government. The citizen is for instance unable to go to another government for the issuance of a permit. It is only possible to maintain and strengthen the trust of the citizen if the legitimacy, care and decency of politicians are beyond reproach, in other words, if the integrity of the government has been guaranteed.”

Further down in the explanatory notes is a little bomb, contained in the following sentence: “It is custom that the National Security Service Netherlands Antilles (now: Security Service St. Maarten – VDSM) investigates whether the candidate ministers and state secretary are of irreproachable behavior. It is possible to demand other requirements from candidate-ministers.”

It remains however unclear what those other requirements could be and where this is regulated by law.

A review of the Constitution of Curacao, which is very similar to the one of St. Maarten, points out that every citizen has the fundamental right to be appointed in public office. The Universal Declaration of Human Rights, the European Human Rights Treaty and the local constitution guarantee this. Article 17 of St. Maarten’s constitution reads: “All Dutch nationals may be appointed to public service on an equal footing.”

The office of minister is one of these functions in the public service. The requirements for a job in public service must be established functional and objectively. This means that the requirements must refer to the function and that they must be necessary for doing the job properly.

The word screening does not appear in the constitution. The analysis of the Curacao’s constitution holds that a screening cannot judge candidates based on standards that are not part of the constitution. In other words, the conclusion is that a screening can never prevent someone from becoming a minister who meets the requirements stipulated in the constitution: having the Dutch nationality and not barred from the right to vote or to be elected.

“Every requirement for the appointment as a minister that is part of a screening and that is not mentioned in the relevant article in the constitution violates the fundamental right to be appointed in a public function.”

Screening does have a role to play still – especially where incompatibilities are concerned. Apart from the incompatible functions listed in article 34 of the constitution, ministers also have to abide by the rules laid down in the national ordinance Integrity-promotion ministers.

That ordinance contains weaknesses that are screaming for emergency repairs. The ministers have to declare the assets, their side-jobs and side-activities, but the procedure lacks transparency. It is true that the prime minister has to ask advice from the Council of Advice and the General Audit Chamber, but the ordinance does not say what the prime minister has to do with the advice. This makes it at least possible to ignore it and to let ministers get away with improper interests.

We have pointed out in the past, and we’ll do it again here, that the justice minister in the first Wescot-Williams cabinet, Roland Duncan, had (and has) interest in the prostitution industry. Duncan did not report this (even though it has been a public secret for years), or the prime minister allowed it. What should have happened is this: the prime minister should have demanded that Duncan divest his interests or that he foregoes his position as a minister.

From the analysis it becomes clear that, if screening aims to exclude certain candidates from becoming a minister, this will create a situation that violates the treaties mentioned earlier, the Constitution of St. Maarten and the Kingdom Charter.

“In such a situation the same governor that ordered a regulation for the screening, will not be allowed to ratify a national ordinance for this purpose; he will have to present it to the Kingdom Government for nullification,” the analysis states.

The question is now what Governor Holiday will do with the instruction from Kingdom Relations Minister Plasterk. Based on the information we have so far, it seems that the additional screening the Kingdom Council of Ministers wants so badly is bound to fall short of its objectives and that UP-leader Theo Heyliger is right when he says that it lacks legal basis.

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