On the road to autocracy in the name of electoral reform

POSTED: 01/7/16 5:52 PM

by Julio R. Romney, Political Analyst

Should the Prime Minister of St. Maarten have his way with the proposal or his “notes/ instruction” to his newly established Electoral Reform Committee, as reported in the news media (Thursday, December 31, 2015) St. Maarten would undoubtedly be on the road to autocracy/ dictatorship.

The Prime Minister, the community at large and myself share the same sentiments and acknowledge the existence of the chronic “ship-jumping” problem on St. Maarten which has contributed to the demise of democratic elected governments four times in five years. This issue I have addressed and readdressed over the past two years and to this end have formulated and wrote a draft election amendment legislation to correct the problem. Said document has been published for everyone to read, has been presented before the Central Committee of the Parliament of St. Maarten, to which the Members of Parliament have expressed their concerns through questions and I wait to be rescheduled before parliament and respond to their concerns and questions.

While the Honorable Prime Minister and I agree on the fundamental problems of “ship-jumping”, I disagree with him on what is a sustainable solution. His solution, I am afraid raises both constitutional and practical issues.

The Prime Minister, in his proposal, stated that “political parties have a hefty representation throughout the election process due to the electoral laws. However, once results are announced on election night, in essence, 15 independent MPs are created as each has the power to form a government.”

This is not altogether true. The reality is that once results are announced on election night, the governor appoints an informateur who researches the possible coalition options in forming a government. The informateur presides over talks with possible coalition partners leading to a government program and governing accord and a coalition agreement. Once the informateur has found a potentially successful coalition, he goes back to the governor, who appoints a formateur, who presides over the talks about the ministerial positions that are to be held between the parties that have already established a governing accord. Once the details are finalized, the formateur (in most cases) is ready to accept a formal invitation by the governor to become prime minister, a process that is effectively used by countries throughout the world that have a parliamentary system of government, (including the Netherlands (and other Kingdom partners), and one that does not “in essence” view the Members of Parliament-elect as “independent MPs” or gives “each of them the power to form a government.” Be it said, it is my belief that the Prime Minster has been through this exercise before, as recent as less than a month ago, and would be quite familiar with the electoral process “once results are announced on election night.”

With that said, the crux of the prime minister’s proposal is “to empower only parties to negotiate to form government” not individual Members of Parliament who have broken away from their parties” while allowing “break away” MPs to maintain “all rights and privileges” as a parliamentarian, except the ability to form a government.” Only “if no combination of parties with seats can form a majority in Parliament, then Article 59 of the Constitution will kick in to dissolve parliament and call snap elections.” In this way the PM contends ship-jumping can become a thing of the past.

With all respect due to the prime minister and his election reform ideas they are conceptually weak and can only serve to make “ship-jumping” now permissible by law. Specifically, as for the notion of ship-jumpers not having the ability to form a government, this resolves nothing as they can still amass significant political power as is the case today. With respect, if sufficient of Members of Parliament, in numbers, decide to ship-jump, this could make it very difficult for parties to negotiate a sound majority government, thus making the island still open to unnecessary frequent demise of government.

Overall, the prime minister’s electoral reform proposals negate the democratic principle of “one man/woman, one vote”, where every vote should be weighted equally and the constitutionality of Parliament to be represented in proportion to the election results, as articulated in Article 47.1 of the Constitution and further expounded upon in the explanatory notes of the Constitution (page 34, §4). Affirming, “The proportional representation system is distinguished by the fact that the number of seats won is determined on the basis of the division of the total number of votes cast in the entire country by the number of available seats in Parliament. In other words, a party that wins 10% of the votes in the election will also hold 10% of the seats. “And substantiated by Article 98 (1) (2) of the Election Ordinance; (1)For the purpose of filling the seats assigned to each list (party), the candidates on the list (party) that won a number of votes equal to or in excess of the list quota are elected. (2) If fewer candidates on a list than the number of seats assigned to that list have won a number of votes equal to or in excess of the list quota, the candidates are ordered according to the number of votes that they have won, starting with the candidates who won the highest number of votes. The seats are assigned in order of the highest candidates on the list who has not yet been elected.” In layman terms, if a political party wins 10% of the votes it is to be represented in Parliament with 10% of the seats and if fewer candidates on the party list receive the list quota, the seats are assigned (which means they are not elected) in order of the highest vote candidate on the list. The PMs electoral reform proposals simply do not assure the constitutionality of proportional representation, which will undoubtedly avert the practice of “ship-jumping”.

My draft election ordinance on the other hand, assures the conformity of proportional representation by amending the Election Ordinance (AB20, GT no. 10) Articles 95, 96 and 98 relating to Determination of the Election Results. It declares that Members of Parliament, who have not received the quota list votes and who find themselves in contention with their elected party and who no longer wish to be part of the party shall surrender their assigned parliamentary seat back to the elected party and resign from parliament. The elected party will then re-assign the seat to the next party candidate in the ranking order of highest votes.

Critics have alluded that the aforementioned order will preclude parliamentarians from voting their “conscience”, referencing to Article 61.3 in the Constitution which states “the Members (of Parliament) shall not be bound by a mandate or instructions when casting their votes.” I challenge anyone to highlight the part of the order and/or any part of the draft election ordinance that infringes on parliamentarians constitutional rights not to be bound by a mandate or instructions when casting their vote, or “voting their conscience.”

Other proposed changes by the Prime Minister are the “elimination of gathering outside of polling stations on Election Day, “political paraphernalia to be removed from the country 48 hours before Election Day” and voters will not be allowed to wear any political paraphernalia or party T-shirt into the polling stations” all supposedly in the name of “free and fair elections. Respectfully, what do the aforementioned PM’s suggestions realistically have to do with the “ship-jumping” issue at hand? However, they do reflect elements of autocracy and dictatorship.

In memory St. Maarten has never had an issue with “free and fair elections”. To eliminate the (peaceful) gathering outside of the polling station, in accordance with election rules, denies the people of St. Maarten their constitutional right to assemble; to have political paraphernalia removed from the country 48 hours before Election Day censors information and denies the electorate to be informed, and; to restrict the wearing of any political paraphernalia or party T-shirts into the polling station contains freedom of expression. What’s next, we ask.

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