St. Maarten Cabinet objects to integrity investigation strategy of Dutch Kingdom government; but: Standing orders have option to instruct the governor

POSTED: 10/2/13 12:54 PM

St. Maarten – In a memorandum to the Second Chamber dated July 15, 2011 the Dutch government gave an extensive explanation about the so-called guarantee-function – an article in the Kingdom Charter designed to protect basic rights and freedoms, legal security and good governance in all countries of the Kingdom. Prime Minister Wescot-Williams and Justice Minister Dennis Richardson fiercely oppose the way the Kingdom Council of Ministers now has used this article to instruct the governor to order an integrity investigation.

The two ministers traveled to the Netherlands to present their position on the proposed integrity investigation, but to no avail. Earlier, Wescot-Williams had already said that there is no legal basis for an instruction to the governor. That, of course, remains to be seen, given the fact that the Kingdom Council of Ministers did issue such an instruction.

Back home, Wescot-Williams and Richardson immediately went on the war path with a joint appearance on Oral Gibbes Live TV-show, where they once more refuted the measure. Words like neocolonialism, illegal and unconstitutional were used in the broadcast to describe the action by the Dutch government.

The cabinet received some form of support from Ronald Bandell, the chairman of the Progress Committee Sint Maarten who labeled the actions from the Kingdom Council of Ministers as “some sort of ambush” in an interview with Jamila Baaziz of Caribisch Netwerk. (see related story: Bandell unhappy with imposed investigation).

The sore point for the government is that the council used a royal decree as its instrument to issue the investigation-order to Governor Holiday. “Prime Minister Rutte believed and still believes that he could give an instruction to have an investigation carried out in an autonomous country within the Kingdom,” Wescot-Williams said.

The 2011 memorandum to the Second Chamber – a ten-page report – emphasized that article 43 is about securing or guaranteeing. That is a tad different from taking action to provide those basic rights and good governance, because that is a task that befalls the individual countries, as article 43 states: “The care for the realization in the countries of the fundamental human rights and freedoms, the legal security and good governance is a task of the countries.”

There is of course a condition to all this: “It is however in the interest of the Kingdom that this task is indeed executed. The Kingdom must be able to take the appropriate measures if in a country these rights and freedoms, legal security and good governance do not exist.”

The text furthermore notes that the Kingdom has to take into account the resources the country has at its disposal and that “not the failure of any one country institution can cause such a measure. Only when in the country itself there appears to be no redress possible, taking a measure can be considered.”

This is of course the point where the government in St. Maarten balks at what it considers a draconic initiative: the instruction to the governor.

The reaction depends on the circumstances, the article furthermore points out: “Intervention may not go any further than what the circumstances strictly warrant.” An intervention must also be designed to restore the normal situation as soon as possible.

Justice Minister Richardson said in the Oral Gibbes broadcast that Prime Minister Rutte and Minister Plasterk are using article 43 for a purpose for which it was not intended.. “We believe this is against the principles of good governance and we believe it is illegal. That is ironic considering what they are saying.”

Minister Richardson said that the Kingdom Council should have used the article about higher supervision and that they should have subsequently involved the Council of State. St. Maarten could appeal such a decision. “It is clear that political games are being played since this was not done,” Richardson said.

The justice minister maintains that initiating the guarantee function involves the use of article 51. That article reads: “When an institution in (the country involved – ed.) does not or not sufficiently provides what it has to provide based on the Charter, an international regulation, a Kingdom law or a general measure of national administration, based on the legal grounds and the motivations a general measure of national administration can determine in which way this will be remedied.”

Minister Richardson maintains that the Dutch “cannot justify that our systems are not working. All allegations are in the public prosecutor’s system. Therefore we need to ask ourselves: what is it that the Dutch really want?”

Prime Minister Wescot-Williams added that because none of the proper procedures were followed, the government will continue to object. If we had something to hide, the PM said, we would not have brought in Transparency International. What does it come down to? “It was about meddling in our own affairs to begin with. Our governor is being put in a very awkward position with this decree.”

Back to the 2011 memorandum. It notes that the governor plays an important role in assessing whether the guarantee function can be applied. “As the head of the country-government he has the right to be informed, to encourage and to warn,” the memorandum states.

The governor guards the general interest of the Kingdom. “In doing this he has to take instructions from the Kingdom government into account that have been given to him by royal decree.”

Here the memorandum refers to article 15 of the standing orders for the governor. Paragraph 1 of this article reads: “The governor represents the Kingdom government and guards the general interest of the Kingdom based on the articles in these orders and considering the instructions given by royal decree. He is accountable to the Kingdom government.”

In 2012, the Ministry of Home Affairs and Kingdom Relations published yet another report about the guarantee function that reflects on the 2007-October 2010 period – so up to the moment that St. Maarten and Curacao obtained autonomy within the Kingdom. This report describes the “general purpose” of the guarantee function like this: “Guaranteeing the legal security and human rights in the Netherlands Antilles and Aruba.”

Note that good governance was not part of the equation, at least not in the minds of the writers of this report. Good governance was already part of the text of article 43 though.

While Ministers Wescot-Williams and Richardson are of the opinion that the Kingdom government  is using “thin, baseless and ungrounded explanations” for issuing a royal decree, the governor’s standing orders seems to suggest that the Kingdom government is free to give instructions to the governor and also that this is done by royal decree.

Minister Richardson sees this differently: “The backdoor is forced wide open for Dutch ministers to interfere with anything on St. Maarten, Curacao or Aruba. And they want us not to do anything about it.”

Richardson says that the measure sends St. Maarten straight back to “the old days of colonialism and ruling people indirectly.” That, the minister adds, is not what we fought for. “The people of St. Maarten, Curacao and Aruba did not leave their autonomy in the hands of the Dutch government so that the Bosmans and the Wilderses out there can complain and say that PM Rutte is not doing his job politically and use St. Maarten as political pawn.”

Richardson also refers to the end to Dutch funding for social development and to the part of the debt relief the country never received. “They have left us no room to maneuver. We never received the money promised to us because of the famous statement that the door is closed.”

The Dutch have a hard time to stay within the European 3 percent budget deficit standard, but St. Maarten is not allowed to have a deficit. “We receive no aid and to nail the coffin shut now they want to investigate us?” Richardson said.

The Justice Minister said that St. Maarten will go ahead with Transparency International’s National Integrity System assessment but that it will not cooperate with the instruction until it has a statement from the Kingdom Council of Advice.

The cabinet has requested a meeting with the parliament to provide information about the situation to parliamentarians.

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St. Maarten Cabinet objects to integrity investigation strategy of Dutch Kingdom government; but: Standing orders have option to instruct the governor by

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