Constitutional Court rules on September 13 – Cockfights, prostitution and prisoner’s rights scrutinized

POSTED: 07/3/13 12:05 PM

constitutional court

The Constitutional Court during its first public session in the courthouse in Philipsburg. From left Justices Jan de Boer, Bob Wit and Ben Vermeulen, and court registrar Maritsa James-Christina. Photo Today / Leo Brown

St. Maarten – The upstairs courtroom in the courthouse in Philipsburg was filled to capacity yesterday morning for the first public session in the history of St. Maarten’s Constitutional Court under the presidency of Justice Bob Wit. St. Maarten is the only country in the Kingdom with such an institution; it has the authority to review new legislation against the state regulation or Constitution and to declare laws eventually unconstitutional. It is not possible to appeal verdicts of the Constitutional Court.

In attendance were amongst others Justice Minister Dennis Richardson, Animals R Friends president Monique Hofman and attorney Reinold Groeneveldt, but there was not a single Member of Parliament in the courtroom..

Ombudsman Dr. Nilda Arduin who has sole discretion over submitting legislation to the constitutional court for review submitted in January several articles of the new penal code for annulment. The most eye-catching articles are about an exemption to the ban on the ill-treatment of animals that makes organized cock fights legal under a (still to be devised) permit system and the imposition of higher punishments for committing crimes against tourists.

Other topics the ombudsman brought to the court’s attention are rules for early release of foreigners and illegals and the withdrawal of an article that entitles convicts with a life sentence to a review of their punishment after twenty years.

The cockfight article is according to the Ombudsman possibly at odds with article 22 of the state regulation that imposes an obligation on the government to take care of the wellbeing of animals.

The state’s attorney Mr. Richard Gibson Jr. told the court that the government aims to include the wellbeing of animals in its considerations but that exceptions ought to be possible for “reasonable purposes.”  Gibson added that “eating meat is also damaging to animals.”

The Ombudsman contested that cock fights fall under the term reasonable purposes. “The purpose of a cock fight is to harm. Fights continue until an animal is no longer able to continue and it is often left to die in its own blood or to spend the rest of its life handicapped.”

The ombudsman added that cock fights are a cruel activity “purely for entertainment and illegal gambling.”

She noted that opinions about what is acceptable change with the times. “Gladiator combats were once also held for entertainment.”

Mr. Gibson Jr. questioned whether article 22 of the state regulation can be used to assess the criminal code: “this entire article means that by developing policy pertaining to animals and codifying this to police the wellbeing of animals must be taken into consideration,” he said.

The attorney added that the government still has to draft additional legislation for the issuing of permits for animal fights. “It is not certain that sharp objects will be allowed or that it is permitted to let animals die in their own blood.”

Judge Wit wondered compared cockfights to boxing matches whereby people voluntarily enter the ring to fight. “Does the government have any idea how to organize a cockfight with gloves?” he said. I would not know how to ask permission from a cock.”

Later it was established that under the current law cockfights are permitted under a permit system, but it remained unclear whether any of such permits have ever been issued, and under which conditions.

The second point the ombudsman put to the court was an article that imposes higher punishments for crimes committed against tourists. The Ombudsman considers this unequal treatment and a violation of the constitution that prohibits discrimination on any grounds. “In fact this article endangers locals,” she added.

Attorney Gibson Jr. pointed out that the government intends to protect the tourism industry by increasing the maximum penalty for robbing a tourist to 6 years. He dismissed the notion that the constitution bans the government from making a distinction between individuals. “This is allowed if there is a reasonable and objective justification to do so.”

Judge Wit thought that the article could lead to strange situations. “A visiting businessman does not get the same protection as a visiting tourist. And will a St. Maartener living abroad who is here to visit his family fall under this provision?”  Judge Ben Vermeulen wanted to know whether the government had considered the principles of proportionality and necessity. Mr. Gibson Jr: “Crimes against tourists can have serious repercussions.”

An interesting bone of contention was article 28 that would have given convicts with a life sentence the right to a sentence-review after twenty years if the parliament had not decided to take the article out of the penal code. Ombudsman Arduin considers scrapping the article unconstitutional, while Mr. Gibson Jr. contested that the Constitutional Court has the authority to rule on legislation that has not been ratified. He also pointed out that convicts with a life sentence have options for parole.

The Ombudsman further contested articles that give foreigners with sentences below 5 years the right to early release after they have served one third of their sentence with minimum of 9 months. For sentences over 5 years foreigners and illegals are not entitles d to early release but Kingdom residents who have a steady and acceptable place of residence in St. Maarten do.

“This provision leaves me befuddled,” Justice Wit admitted, adding that these provisions give quite some power to the Minister of Justice at whose discretion early release is applied.

The Ombudsman considers the rules unequal treatment and wants them to apply to all prisoners.

The hottest issue in court turned out to be article 2:212 that stipulates that prostitution is punishable “unless a permit has been issued by the Minister of Justice.”

The Ombudsman is of the opinion that the article does not protect the sex- workers but the pimps. “A third party is licensed to exploit others for personal gain,” she pointed out, adding that her objections are not about morality but about legality.

The Ombudsman also made reference to Emancipation Day and the abolition of slavery. “Our legislators fail to see the similarity with slavery,” she said. “Legalizing prostitution this way infringes on the personal integrity of women; they are made into a commodity. The majority of women come from marginal groups.”

The Ombudsman wants to keep prostitution punishable under the law.

“What good will that do,” Justice Wit wondered. “There are all kinds of excesses. In the meantime everybody on every level is cooperating with this so-called adult entertainment. This is all happening while this is a so-called crime. If you are a carpenter from Colombia you are not likely to get a work permit here, but if you are a prostitute you do.”

The Ombudsman maintained that the permit system will give third parties in fact permission to exploit women legally. Legalizing prostitution violated fundamental human and social rights, like the ban on discrimination, the equality principle and the right to bodily integrity.

“The Ombudsman is of the opinion that prostitution degrades a woman and affects her bodily integrity,” Attorney Gibson Jr. noted. “The government has taken note of this and does not exclude the possibility that others within our society may be of the same opinion.”

But Mr. Gibson Jr. added that the ratified legislation “in no way forces a man or a woman to subject him or herself to any sexual activity that he or she may not wish to engage in. The person or entity with a permit to exploit prostitution does not obtain the authority to force any individual to engage in any activity they do not wish to engage in.”

The government’s attorney furthermore pointed out that human trafficking is explicitly prohibited.

Justice Wit asked attorney Gibson Jr. how he squared legalized prostitution with the pre-amble of the constitution that states amongst others; “…that we are a people that believes in the principle of democracy, the rule of law, the principle of separation of powers, the dignity and value of the individual, and the entitlement of all individuals to the fundamental rights and freedoms.”

Attorney Gibson Jr. neatly evaded the answer to that one: “That part of the constitution lends itself for constitutional review,” he quipped.

The Constitutional Court will rule on all matters brought before it on September 13 at 10 a.m., either during a live court session in Philipsburg or via video-conferencing.



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