Opinion: Fictitious refusals

POSTED: 07/8/11 1:45 PM

There’s a new virus in town and it is called fictitious refusal. It is the government apparatus’ weapon of choice against citizens who dare asking difficult questions, submit requests for permits or pensions, and against journalists who call on the law on public governance to obtain information said apparatus refuses to release.

A fictitious refusal occurs when the government fails to respond to a request within the term prescribed by law. In other words: this situation comes into being when the government does nothing, and this seems to be a nasty habit.

Ask former Finance Commissioner Xavier Blackman how the system works. After he left office in October of last year, Blackman submitted a request to receive benefits via the Pension Regulation for former political office holders. It’s pretty much a standard procedure – but not in St. Maarten.

Nine months Blackman battles to and fro with Secretary General Sherry Hazel of the Finance Ministry – and nothing moved. All Blackman wanted was a formal decision about his entitlements. He was not left entirely destitute because the Ministry paid his full salary until December and started paying out advances on a somewhat irregular basis at the beginning of this year. But the decision never materialized.

Last week, on the day before he took the country and the Finance Minister to court, Blackman suddenly received a solid promise that the government would send a draft decision to the governor for approval within a week. The court denied Blackman’s request for a provisionary measure this week for lack of urgent reasons. But the former Finance Commissioner had a different goal in mind when he filed the lawsuit: he wanted to force the government to speedy action with regard to the formal decision about his entitlements.

That now seems to work. After nine months and dozens of emails the government machinery suddenly jumped into action when Blackman filed his lawsuit.

In a separate procedure Blackman has forced the government to state who is the competent authority former politicians in his position need to address when they want to claim their rights. Usually these normal procedures (as opposed to the speedier summary proceedings) take months before they reach the court. But this time, under pressure of the summary proceedings, the normal law suit also came into play, and the Finance Minister has to inform the court within two weeks.

Blackman request was denied, but he still won: the government has been forced to take a decision.

Immediately after the Blackman ruling on Wednesday, members of the James family were in court for a case that is only similar in the sense that it also concerns a fictitious refusal. The James family wants to develop a piece of land in Cay Bay, but a request for permission to build infrastructure hit a blank wall. On Wednesday the family learned that there is a preparatory decision about the area. This means that the government intends to develop the area and that as long as these plans are not ready, nothing else moves.

That was at least the explanation the family members heard in court. The thing is: they had to go to court to get that information.

Which brings us to a letter this newspaper wrote on September 3, 2009 to the Department of General Affairs of the island territory of St. Maarten.

The letter is about a request, based on the law on public governance, for information about the new government administration building. A first request for copies of all Executive Council decisions about this project since its inception was turned down. Instead, the government offered this newspaper a summary. Today turned down that offer and asked in the September 3, 2009 letter for an overview of all Executive Council decision that had been excluded from this summary (for which we would have had to pay), complete with the dates when they were taken and with the reason why they would not be released.

To this very day, this letter remains unanswered so for all we know, this could very well be the mother of all fictitious refusals.

The question that may people will have after reading all this is: can the government do this? (Do nothing – that is). The answer to this question is unfortunately: yes, the government can do this. It is of course a bloody shame that the government is doing this, and according to what we heard in court in Wednesday on a pretty large scale too, but the formal reaction to any form of criticism is that citizens have the right to go to court if this happens.

This makes us wonder if there is a conspiracy between the civil service and local attorneys, because the legal profession makes a nice business out of taking the government to court. Thus we have a situation whereby citizens have to pay to get their rights.

Of course, one could argue, if the court concludes that the complaining citizen is within his rights, it will sentence the government to pay for the costs of the procedure. That is little comfort for complaining citizens, because guess where the government got that money in the first place: from the pocket of the complaining taxpaying citizen.

The problem we have at our hands here is that civil servants are not personally accountable for the work they are not doing. It is not possible to sue a civil servant for damages because paperwork got stuck in the bureaucratic morass and caused a fictitious refusal. Not that that would be a solution, because guess where the salary of the not-performing civil servant and/or his political bosses comes from: the pocket of the complaining taxpaying citizen.

Would not paying our taxes count as a fictitious refusal?


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