Opinion: Ethnic discrimination (St. Maarten born, Holland born: equal nationality, however…)POSTED: 05/28/14 11:01 PM
The recent death of notary candidate Lars de Vries caused considerable turmoil in Sint Maarten society. Primarily because of the nature of his death, which was self imposed. His family and many friends were shocked and surprised after hearing what had happened. Lars de Vries was a well appreciated and gifted candidate notary with a gentle character and a special smart dry-wit kind of humor. The combination of his professional accuracy and his humor made him extraordinary. He was a unique person and will be missed dearly.
After analyzing facts surrounding his tragic death it soon became clear that the ministerial dismissal of De Vries’s nomination as new notary on Sint Maarten played an important role in his drastical decision making. The Vries drew his conclusions and did what he considered an only way out after feeling deeply humiliated. That decision has to be respected. This letter is not about his personal choice to take his own life. It is however indeed about the fact that discrimination on his Dutch nationality in the notary nomination procedure seems to be a very strong incentive in De Vries’ decision making. Minister of Justice Mr. Richardson declared indirectly, after being asked so by “Today”, that he actually preferred to have a ‘landskind’, a born local St Maartener, as a new long time future notary. De Vries, being born in The Netherlands, was therefore according to the Minister a less suitable candidate, despite him being preferred first choice of nomination by the Common Court of Justice that advised the Minister in the nomination procedure. Lawyers and friends expressed their disbelief after noticing the Minister’s reasoning.
Mr. Richardson did never consult the organized law firms before he made up his mind to deviate from the Court’s first choice recommendation, although cooperation with the notary often is an essential part of law firm business. A solid functioning of the legal system depends upon a high level cooperation between different legal specialist and it is therefore hard to understand why a professionally admired candidate notary is bypassed on grounds that do not go to the core matter of the business: providing excellent notary business on Sint Maarten. Mr. Richardson declared he preferred at this moment to nominate an experienced former Aruban notary who would reach pensionable age within ‘a few years’. He did not give names of possible future candidates, and besides that it remains unclear if they will possess the high level professional skills that De Vries demonstrated and why he was preferred by the court and by law firms.
Art. 16 of the Constitution of Sint Maarten states that there will not be made any discrimination between citizens on Sint Maarten. “Everyone in Sint Maarten shall be treated equally in equal circumstances”. Discrimination can take all kinds of nasty forms and shapes, varying from race (color of skin), belief (Christianity or Islam), sex (male or female) but also national origin, as recently became painfully clear in case of Dominicans of Haitian origin in Dominican Republic. Everybody understands that discrimination has to be abolished as it digs into the heart of personal dignity.
One could argue that for nomination of public functions in a sovereign country making a difference in treatment based on nationality is for a legitimate purpose. Notaries do have to be educated in Dutch or Antillean notary law and have to possess the Dutch nationality. People who do not possess the Dutch nationality cannot be nominated under the laws of Sint Maarten. Making the distinction based on nationality seems logic but isn’t always that strictly made. In the European Union discrimination on nationality is rigorously banned. Even for nomination procedures regarding public notaries. The Netherlands changed their laws due to European regulations in 2012. Theoretically we could therefore have a German-born notary in The Netherlands, as long as he or she is graduated in notary law and has a good command of Dutch.
With regard to these international developments elsewhere it seems therefore even stranger that a Minister pulls the “landskind” card in the nomination procedure. Why should it matter where a Dutch candidate is born, as long as it is within the Kingdom? Especially within the Kingdom one shouldn’t discriminate on ethnic grounds. Preferring a “landskind” being nominated is actually accepting the same rigid point of view that was taken in a recent debate about the so-called Bosman law, named after the Dutch parliamentarian who drafted a legislative proposal that made it possible to discriminate between Dutch nationalities when it concerns Antillean born Dutch persons who want to settle in The Netherlands. Bosman’s law proposal did not make it.
By not choosing for the best candidate and (indirectly) referring to place of birth instead of nationality the Minister is actually doing the same thing as Bosman pleaded, which caused quite a stir and dismal reactions within The Kingdom, both in Dutch Antillean countries and The Netherlands.
Making a direct distinction between Dutch candidates that are born on Sint Maarten and those who are not regarding nomination and appointment in public service is explicitly not allowed under SXM constitutional law. Art. 17 of the Constitution leaves no doubt that “all Dutch nationals may be appointed to public service on an equal footing”. Is nominating a notary an appointment to public service”? Yes it is. Although the public notary office is a private business, the nomination is considered to be a public affair and is protected under the constitution.
Taking this constitutional protection into consideration it seems to be odd why the ‘landskind’ argument was used to motivate bypassing candidate De Vries. Mr. Richardson motivated his statement in the press by saying that the recommendation of the court is legally not binding. The Court recommended both candidates suitable, but a majority of the court judges had a preference for Mr. De Vries. As the preference is not binding and both candidates were found suitable, the Minister thought it wise to nominate the other candidate from Aruba (who had gained work experience on Sint Maarten). In his motivation, he did not directly discriminate De Vries on his nationality, but indirectly he seemed to do so. Richardson had the legal right to nominate another nominated notary, as this candidate was also found suitable by the Common Court. The argument to choose this candidate however, tends towards indirectly discriminating De Vries, by arguing that younger local born candidate notaries in future should have a chance to compete in the nomination procedure when the position of the now recently nominated notary would become vacant. In that sense, he declared De Vries not suitable, despite the fact that he had been a long time on the island, that he lived for years before that in Curacao and that he was very dedicated to the new born Country Sint Maarten and its people.
The question is if the motivation of a ministerial decision is ethically correct or that it even contains a constitutionally prohibited form of discrimination. Does a Minister have the absolute freedom to decide that born nationals should have a preferable position in the future? Again, this is not so easy to answer with regard to the case of this nomination. Mr. Richardson did not literally declare that a local born candidate should be appointed, he only said that after a few years some local born candidates could have gained the demanded knowledge and then should have the chance to participate in a new nomination procedure. “And that then the best may win”, he could have added. One could argue, and surely the Minister will, that even De Vries could have made a new application for nomination if he would have stayed alive and still be willing to participate in the rat race again. Would he have made a chance? Not in a hundred years as long as Mr. Richardson would have been minister. It all sounds nice, but you can bet your boots that next time the nominated notary is going to be a local born candidate and not an old Aruban lady or a Dutch-born candidate, despite their qualities. Court preference and local professional acclaim are not determining that decision. The Minister saw a legal opening to bypass a not SXM born candidate and he took it. From an ethical point of view one could put question marks with his act, especially in the “Month of Integrity”, when all his civil servants had to go on integrity training, talking about the creation of a new code of conduct for the Justice Department.
Is positive discrimination actually defendable? Sometimes it definitely is. Disabled people can be helped to find a job, as the crisis was hitting them extra hard. Female workers often were and still are discriminated in finding jobs and getting equal pay and therefore might be helped. In all situations positive discrimination can only be made if both candidates are equally suitable.
Even based on ethnicity positive discrimination must be allowed, but there have to be special circumstances that justify such policy. Some Dutch born citizens with foreign roots (Moroccans, Turkish people and others) sometimes have the tendency to cluster together in a region to settle. The Dutch government sometimes discriminates on nationality to create an ethnically more diverse region and therefore avoid ghetto forming.
But positive discrimination based on ethnicity in the nomination of a public service? In our opinion this is not tolerable. The constitution does not leave any opening for positive discrimination in these public matters. Countries within the Kingdom do make distinctions between Dutch nationals. In both Aruba and Curacao Dutch-born citizens are discriminated with regard to obtaining residence and labor permits. They need to obtain (and pay for) a residence permit in order to stay and be able to work on these islands. And businesses have to be set up in cooperation with an island-born native. Sint Maarten does not discriminate on Dutch nationality where residency is concerned. Dutch persons get residency by law and are free to work without permits and have the choice to set up a business without locally settled or born partners.
Making a distinction based on, sometimes accidental, circumstances of birth is a violation of article 17 of the Constitution. In Curacao there was in the past some discussion about the proposed nomination of Mr. F. D.L.S. Goedgedrag as the new Governor of the Dutch Antilles. Mr. Goedgedrag was not born on Curacao and therefore not a ‘yiu di Korsow’. Nevertheless, he was appointed.
We cannot deny that nationality issues always have and always will play a role on the islands, even more now they have become autonomous countries. But all Dutch are equal regarding their nomination in public services. If a suitable candidate is not born on the island, that should not be a reason to disqualify him or her. Best Dutchman for the job should have been the reasoning. All Dutch candidates, even those who are not born in The Kingdom but do have the Dutch nationality, should have an equal chance and should not be (indirectly) discriminated as was done in the case of Mr. De Vries.
Or did Mr. Richardson perhaps have more arguments to bypass De Vries? Apparently De Vries claimed that it was a racial issue as well. “They wanted a black candidate”, headed Today last week. We have no indications that this was the case and the statements of the Minister do not refer to a color of skin issue. Was De Vries perhaps discriminated on his disability? It is no secret that De Vries was handicapped; he lost one of his legs at a young age. It seems however highly unlikely that Mr. Richardson used this as an argument.
Thus far, these are all unsubstantiated speculations, as the Minister has not publicly responded and no parliamentarian as yet has called the Minister into Parliament to ask for an explanation. Nevertheless, there are some loose ends. What did Mr. Richardson exactly declare towards the President of the Common Court? It is clear that minister informed the president about his decision. And what is in fact Mr. Richardson’s position towards (indirect) discrimination between Dutch nationals regarding public nomination procedures? Did Mr. Richardson assess whether bypassing an excellent candidate would hurt the reputation of Sint Maarten’s international investment climate? Does this discriminative decision making affect Kingdom relations, especially now in times of economic decline (where future support of SXM might be needed).
It might be about time to call Mr. Richardson to Parliament to find out.
Thomas R. Riemersma LL.M (lecturer law at USM)
Geert F. Hatzmann LL.M (attorney at law)