Justice Wit supported Attorney General for St. Maarten

POSTED: 03/27/13 12:31 PM

“Stubborn attitude Donner and Hirsch Ballin politicized position Attorney-General”

St. Maarten – The President of the Constitutional Court, Justice Bob Wit, severely criticized the constitutional reform process in a letter he wrote in 2009 to John Leerdam, who was at the time a Member of Parliament for the Labor Party PvdA. Justice Wit took a strong position on St. Maarten’s desire to have its own attorney-general – something the Dutch government forcefully resisted. Mentko Nap, who teaches constitutional law at the State University of Groningen, quotes from Wit’s letter in his comments on the national ordinance that regulates the prosecution of politicians in St. Maarten. This newspaper obtained a copy of Nap’s comments.

The legislation that regulates the prosecution of politicians has become topical once more due to the Orca-investigation into possible bribery by independent MP Patrick Illidge. In the investigation Justice Minister Roland Duncan, Economic Affairs Minister Romeo Pantophlet and United People’s party leader Theo Heyliger have been heard as witnesses.

“The most fundamental problem of upholding law and order in the Netherlands Antilles has always been the potential political influence of the local justice minister on the Public Prosecutor’s Office,” Wit wrote on March 9, 2009, nineteen months before St. Maarten became an autonomous country in the Kingdom.

Wit pointed out that this problem could have been resolved on the Dutch end by pushing for a larger distance between the Prosecutor’s Office and the justice minister.

“As far as I am concerned this could have been done by adding to the State Regulations (aka Constitutions – ed.) that the justice minister or the government is not allowed to give special instructions to the Attorney-General and by making clear in the elucidation that the Attorney- General is not a subordinate to that minister.”

But apparently, nobody in the Netherlands was at the time prepared to listen to these arguments. “Due to the stubborn attitude of subsequent Dutch Justice Ministers (indeed, the highly educated misters Donner and Hirsch Ballin) the function of the Attorney-General will be extremely politicized in the proposed Kingdom law Public Prosecutor’s Office.”

Instead of less, there is more influence on the Attorney-General, Justice Wit noted. “What also deserves attention is that St. Maarten (the so-called pirate’s island about which they say to be so concerned) has anchored in its State Regulation that its justice minister will not get the maneuvering space the Kingdom law provides. Instead of offering better legal protection and a better upholding of law and order the new regulation brings a worsened legal protection and, by positioning the Attorney-General in a political focus, a very bothersome upholding of law and order that will lead to unnecessary controversies.”

Like Curacao, St. Maarten wanted its own Attorney-General. “To my utmost surprise, the Netherlands has rejected this forcefully,” Wit wrote. “The community is supposedly to small-scale for it, is the answer. I believe this is a fallacy. The Attorney-General in this region is and has to be the legal conscience of the country. For this function one needs to have testicular fortitude or, gender-neutral, intestinal fortitude. The Attorney-General is and has to be the official who makes sure that everybody stays within the limits of the law, including politicians and his own office in first instance.”

Justice Wit stated in no uncertain terms that this is paramount: “He (the Attorney-General – ed.) cannot be subordinate to politics because he must be free to rap ministers’ knuckles and even to prosecute them. If it were so that St. Maarten indeed wants to be undisturbed criminally active as much as possible, the permanent presence of a formidable supervisor of the law would be the very last thing they should desire. But still St. Maarten has been reproached for wanting to have its own Attorney-General.”

In the final version of the constitution however the powers of the Attorney-General were limited – and this has now become an issue in the Orca-probe into possible bribery by interdependent MP Patrick Illidge.

The Bar Association jumped on the ordinance that regulates the prosecution of politicians already in December 2010. Mentko Nap brought in his comments a few points to light that have been lost in especially the reporting in Dutch newspapers.

Prosecuting politicians only takes place after the Common Court of Justice has approved a request to that extent from the Attorney-General. Nap points out that the definition of the term prosecution is crucial. In the elucidation with the ordinance that regulates the prosecution of politicians, prosecution is defined as an act whereby the Prosecutor’s Office involves the criminal judge in a criminal case.

Nap notes that accepting this definition has far-reaching consequences, because for instance a phone-tap requires the approval of the Judge of Instruction. The definition also qualifies a preliminary investigation as prosecution.”The effectiveness of certain investigation methods would diminish once a politician is aware that they are being used. This way the prosecutor’s office seems to be hindered in the execution of the tasks it has to perform based on the State Regulation.”

There are some holes in the current legislation though that politicians apparently haven’t thought about. Nap notes that acts falling under the term prosecution are for instance the demand to take a suspect into preventive custody, serving a summons to the suspect and demanding a judicial preliminary inquiry. “This means that for an investigation based on a suspicion against a politician for a crime, no prosecution-order is required.”

Formally the permission from the Common Court is only required at the moment an order to detain a suspect is requested. “Until that time the Public Prosecutor remains dominus litus and is able to continue the investigation.”

The extended definition of the term prosecution has another consequence, Nap wrote in his comment: the reasonable term for undue delay begins sooner. Normally undue delay kicks in the moment the prosecutor’s office undertakes an action in the course of an investigation against someone, for instance by pulling him in for an interrogation and labeling him as a suspect. But as long as someone is not aware he cannot be considered to be living under the pressure of being the subject of a criminal investigation.

A last point in Nap’s comments is that St. Maarten is the only country in the Kingdom that has added article 123 to its constitution. The article requires the approval from the Common Court of Justice for a request by the Attorney-General to prosecute a politician. The legislation in this respect diverges from that in Curacao and Aruba, whose state regulations do not have that article.

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