Cock fighting and higher punishments for crimes against tourists at stake – Constitutional Court reviews penal code

POSTED: 07/2/13 12:44 PM

St. Maarten – The Constitutional Court meets for the very first time this morning at the courthouse in Philipsburg to address two issues the office of the Ombudsman has submitted for review. Both topics touch on the draft penal code: an article that would legalize organized cock fights and an article that would impose higher penalties on crimes committed against tourists.

The Ombudsman has submitted these issues for review to see how they hold up against the constitution. A ruling by the Constitutional Court is final: appeals are not possible.

The Parliament of St. Maarten approved the penal code on May 25 of last year and on December 13 Governor Eugène Holiday signed it into law.

The first bone of contention is article 539 that defines cruelty against animals as a crime. The parliament demanded last year that then Minister of Justice Roland Duncan add an amendment to exempt “cultural, organized and structural activities” from punishment.

Ombudsman Dr. Nilda Arduin said at a press conference in January that the parliament had apparently overlooked article 665 that deems organizing animal fights without a permit an offense. Both articles (539 and 665) go hand in hand, Arduin said: “We indicated that based on literature and international standards, animal fights should be considered to be animal cruelty. Both articles should be taken off the books.”

The second article up for review is 2:289 paragraph e. It specifies crimes committed against tourists and imposes higher sentences for these crimes.

The ombudsman suspects that this article violates the principle of equal treatment – a right that is regulated in article 16 of the constitution. “Specifying a crime against a tourist who is on the island for recreational purposes goes against the system of the law,” Arduin said in January. “Increased sentencing for theft, as the basic crime in this article, is in general linked to the circumstances under which the crime was committed and not linked to the person against whom the crime is committed, the victim. A complication with the specification of a tourist is that the judge will each time have to define a tourist.”

On the bench at the Constitutional Court are Justices Bob Wit, Jan de Boer and Pieter van Dijk.

Justice Bob Wit, the president of the Constitutional Court, worked as a judge at the Common Court from 1986 until 2005. During a period of five years he spent almost every other week in St. Maarten. Since 2005, Wit is a Judge of the Caribbean Court of Justice in Trinidad, a regional court with international jurisdiction and also the final Court of Appeal for Guyana, Barbados and Belize. During his 19 years at the Common Court, Justice Wit dealt with almost every aspect of Dutch Antillean law, which forms the basis for current and future law in St. Maarten.

Justice De Boer has been a member of the Common Court of Justice since 1998 and has worked there as a Court of Appeal judge. De Boer was born in Paramaribo, Suriname. He lectured Roman law at the Free University and is a professor in private law at the University of Amsterdam. He authored the most authoritative textbook on Dutch family law and the law on persons.

De Boer has broad experience in legal drafting. He was actively involved in civil code revision projects in countries like Estonia, Russia, the Netherlands Antilles, Eritrea and Suriname. He has also drafted and revised laws that have become or possibly will become law in St. Maarten.

Justice Pieter van Dijk is the Constitutional Court’s vice-president. He was a professor of law at the University of Utrecht, a Judge in the European Court of Human Rights and the co-author of a human rights publication entitled Theory and Practice of the European Convention on Human Rights. Justice Van Dijk has been a member of the Council of State of the Kingdom for more than twenty years, where he chaired the administrative appeals section. Van Dijk assists the Common Court as a deputy judge in administrative appeals.

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