Second opinion supports dissolution of parliament: Governor Holiday’s decision under increased pressurePOSTED: 10/9/15 2:22 PM
St. Maarten – Governor Holiday’s decision not to sign the national decree that would dissolve the parliament and call for new elections has come under increased pressure, after another constitutional expert joined the chorus of those who emphasize that dissolving the parliament is an autonomous authority of the cabinet and that the governor cannot refuse to sign such a decree. To add to the confusion, Minister Ronald Plasterk (Kingdom Relations) wrote in a brief letter to the Second Chamber: “The withdrawal by the parliament of the confidence in the government can be reason for that government to dissolve the parliament. In that case elections follow.”
Plasterk does not take an explicit position on the actions of Governor Holiday and he does not react to the fact that the Gumbs cabinet in fact has already submitted the national decree to dissolve the parliament. “It is first of all up to the institutions (parliament, government) of the country itself to find a solution for this political crisis. Whether the governor sees the need to act as a kingdom body, is up to him.”
Prof. Tijn Kortmann, a professor emeritus of constitutional law at the Radboud University Nijmegen supports the “well-founded opinion of prof. Arjen van Rijn.”
Kortmann writes in his two-page advice to Prime Minister Marcel Gumbs that Governor Holiday and Ernst Hirsch Ballin – a former minister of justice – consider the dissolution of the parliament unlawful.
However, Kortmann shares Van Rijn’s opinion that the government has the right to dissolve the parliament. Prof. dr. Joop van den Berg, a former professor Dutch Politics and Parliamentary History is on the same line: Governor Holiday does not have the authority to refuse signing this national decree.
Remarkably, both Van den Berg and Kortmann present the same argument to support the position that the cabinet has the right to dissolve the parliament after parliament has withdrawn its confidence in the cabinet. “If the confidence in the government expires, the government must step down, except for a decree to dissolve the parliament,” Van den Berg says in an article that appeared earlier this week in Antilliaans Dagblad.
Kortmann agrees with this pint of view and he brings it up in his advice. He furthermore notes that the arguments former Minister Hirsch Ballin fielded are “not convincing.” The fact that a conflict-dissolution has not occurred in the Netherlands for decades cannot be considered as an indication for a rule of law, Kortmann writes. “A fact is not a standard.” He adds that the Netherlands has not seen a motion of no confidence against a complete cabinet for decades. “This does not mean that therefore such a motion has become constitutionally improper. In this case fact is not a standard either and this is also true for St. Maarten.”
Kortmann repeats Van Rijn’s argument: “If the parliament hits, the government is allowed to hit back.”
There is more criticism for the advice from Hirsch Ballin, who argued that the governor is tasked with guarding the constitutional process and that he is authorized to act without backup from a minister. “This reminds of the earlier acts of the king. This role is not for the governor as a national body. Some individuals in the Netherlands have in the past attributed the role of guardian of the constitutional process to the king. This position is in my opinion at odds with the ministerial responsibility. It is not up to the king to determine what is correct according to constitutional law. That is up to the government, ministers, parliament and in certain circumstances, the court.”
Dissolution is done by national decree, Kortmann points out. “The governor then acts as a national body under the responsibility of one or more ministers. The governor is not allowed to act on his own, without a minister being able to take responsibility for it.”
In the situation at hand in St. Maarten, the governor turns as a national body against the prime minister. “That is constitutionally improper. It could possibly be maintained that the governor is allowed to do this if one or more ministers seriously violate the law, but that is not the case here. The ministers only want to use a constitutional authority that belongs to the government. If this is their wish, the governor has to cooperate.”
Governor Holiday sent a letter to the prime minister (Rutte – ed.) saying that the ministers of the Gumbs cabinet have to offer their resignation and that they are only allowed to handle current affairs. Dissolution is not a part of this, the letter states.
“This opinion is only correct if a conflict-dissolution as such would be improper,” Kortmann writes in his advice. “If a conflict-dissolution is allowed – and that is the position of Van Rijn, Van den Berg and I – then the ministers obviously do not offer their resignation.”
Kortmann adds that he is aware that Piet Hein Donner, the vice chairman of the Council of State, has also presented an advice, but that he is not familiar with its contents.