Opinion: Is the Public Prosecutor more important than parliament?

POSTED: 03/10/16 6:59 PM

Dear Editor,

An important part of my legal practice involves helping clients to combat the misuse of the criminal proceedings against them. Often these clients are successful foreign investors who have been targeted by authorities in countries in Africa, Asia, and Middle East, the CIS and even Central and Latin America. Occasionally, I have also assisted politicians in office against whom criminal proceedings were started.

What is striking in the latter situations is that the political consequences of law enforcement actions are obvious. The presumption of innocence notwithstanding, the functioning of politicians in question is immediately affected, sometimes rendering them totally ineffective. However, the situation that currently exists in St Maarten as a consequence of the detention of Mr. Matser (not my client) exposes an even more serious constitutional issue that touches upon the propriety of the use law enforcement powers against Members of Parliament in a democracy. Mr. Matser is a member of the governing coalition with a slim majority of one seat. The detention of Mr. Matser came within days that the Staten had to vote on the budget.

This fact, not only complicated the budget vote, but it also exposed the government to a potential no-confidence vote that would automatically compel the cabinet to resign. Was this inevitable? Arguably, the St Maarten constitution, which is unique in the Kingdom on this point, contains a mechanism that could have prevented both situations.

One reading of the Constitution could be that Members of Parliament can only be held in pre-trial detention (“voorlopige hechtenis”) after approval by the court. According to the constitution, as soon as the court approves the “voorlopige hechtenis” the suspension of the member kicks in and he/she will be temporary replaced with the next person in line.

In this theory, it would mean that a Member of Parliament cannot be placed into “police custody” (“inverzekeringstellingstelling”), as has occurred with Mr. Matser. The advantage of this interpretation is that it would have avoided a gap in the membership of the Staten and thus the disorderly situation that arose in parliament upon his detention.

It would not appear, however, that the Public Prosecutor’s Office adheres to this interpretation nor seems to care about the consequences of its law enforcement actions for the functioning of the parliament. The oddity is that if parliament were to act in any way that directly affects the functioning of the Public Prosecutors’ Office that would undoubtedly immediately trigger calls for the application of Article 43 of the Charter of the Kingdom.

However, numbness seems to prevail as far as it concerns the political effects of interventions of the Public Prosecutor. I submit that this cannot be glossed over with the assertion that nobody is above the law, because precisely by ignoring the political and constitutional implications of its decisions and actions the Public Prosecutor effectively takes side in the political process.

Indeed, the irony of the present situation is that a new majority emerged in parliament, which may imply a new government. This is not even in the interest of the Office of the Public Prosecutor as it can be accused of having timed its actions to produce certain political effects.

In many democracies, including in the Netherlands, provisions are made to impede or minimize political consequences of law enforcement actions, and hence preserve the political neutrality of public prosecution. Accordingly, in some countries Members of Parliament (and cabinet minister) enjoy immunity from prosecution while in office (e.g. France). In other countries, Members of Parliament can only be prosecuted after an impeachment procedure in the parliament (e.g. USA).

In the Netherlands the Public Prosecutor has no power to prosecute sitting Members of Parliament and/or cabinet ministers for so-called “ambtsmisdrijven”. That power is reserved to the parliament itself for members and former Members of Parliament and to the cabinet for members and former members of the cabinet. Moreover, they can only be tried in the Supreme Court of the country. Unlike the case in Aruba and Curacao, where no provisions are made at all, St. Maarten’s constitution also contains a mechanism that purports to strike the necessary balance. However, this mechanism will proof useless as long as the Public Prosecutor’s Office deems that Members of Parliament merit no deference.

Dr Rutsel Silvestre J. Martha,

London, March 8, 2016.

The author is a former minister of justice of the Netherlands Antilles and practices international law in London (UK).

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