THE CONSTITUTIONAL LAW OF ST. MAARTEN

According to constitutional law it is simple and difficult at the same time

The following is simple:

Section 33 Constitution of St. Maarten:

  1. The Prime Minister and other Ministers are appointed and dismissed pursuant to a national decree.
  2. If a Minister no longer has the confidence of the States, he will resign from his post.
  3. With regard to the second subsection further rules can be laid down in a national ordinance.
  4. The States can only reject a draft national ordinance or decide not to put forward a proposal of such a draft with two-thirds of the votes of its current members.

Section 40 Constitution of St. Maarten:

  1. National ordinances and national decrees are signed by the Governor and by one or more Ministers.
  2. The national decree by which the resigning Minister President is dismissed and by which his successor is also appointed, will also be signed by the latter. The national decrees by which the other Ministers are appointed or dismissed are also signed by the Minister President.

Section 59 Constitution of St. Maarten:

  1. The States can be dissolved pursuant to a national decree.
  2. The decree dissolving the States also includes the order for a new election for the dissolved States and for the assembly of the newly elected States within three months.
  3. The dissolution becomes effective on the date on which the newly elected States assemble.

This is more difficult:

Should the Gumbs Cabinet have consulted the States about the intention to dissolve the States? The question is here what one ought to do from the point of constitutional law. This would entail customary constitutional law (unwritten law) and that has not yet really developed in St. Maarten. The States are the highest political body in St. Maarten and therefore in principle have the final say. The question of whether the members of the States should have been consulted was answered negatively by the Gumbs Cabinet, supported in doing so by several constitutional lawyers. And there is something to be said for that answer. The right to dissolve the States and to submit the dispute with the States to the electorate is after all the mirror image of the power of the States to withdraw confidence in one or more Ministers. It is an autonomous power to which no conditions are attached in the Constitution either.

Another view is imaginable. After all, if it appears that there is a majority in the States in favor of another government, that majority should after all be enabled to form a new government. This would then fully justify the starting point that the (majority of the) members of the States ought to have the final say. For instance see in this respect C.E. Dip, De Ontbinding van de Staten [The dissolution of the States], Issue of the Hogeschool van de Nederlandse Antillen [the then University of Curacao](1975).

However, as mentioned above, the role of the Governor is limited from a statutory point of view and he is left with nothing to do other than to sign the National Decree dissolving the States.

This is again an easy one:

Is it possible to replace a demissionary cabinet by another? The starting point is that the States ought to have the final say in this discussion. It also went like this in Curacao where the demissionary Schotte Cabinet was replaced by the demissionary Betrian interim-cabinet. So a demissionary cabinet can be forced to resign. It is important to establish that the cabinet is demissionary, but not the States and the States will not become demissionary either when the States are dissolved. After all, the dissolution only becomes effective on the date on which the newly elected States assemble.

And this one is also easy:

The (second) Deputy Chairman of the States of St. Maarten prevented a new Chairman of the States and two Vice-Chairmen being elected. We also experienced something similar in 2012 in Curacao when the (then) Chairman of the States Asjes suspended the States assembly for an indefinite period of time. The (Deputy-)Chairman of the States is not entitled, but has the obligation to chair the sessions of the States. The solution here is an application for a(n) (emergency) session. If that application is not honored, the respective members of the States, just as in Curacao at the time, can convene a meeting themselves and if necessary have this take place outside the regular assembly hall. If the Chairman closes the meeting against the wishes of the majority of the States, it is after all no more than natural that this majority ignores this closure and continues the meeting under a different chairmanship.

Constitutional law is a fascinating and exciting subject!

Karel Frielink
(Attorney/Lawyer, Partner)

(20 October 2015)

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{Previously posted in Dutch on 14 October 2015}

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Ps (16 October 2015)

The second Vice President of Parliament Hon. Cornelius de Weever, on Thursday, 15th October, has sent a letter to the Members of Parliament (MPs) requesting additional information with respect to a convocation for an urgent meeting of the House of Parliament.

The letter reads as follows:

I have taken note of your Convocation for an urgent meeting of Parliament and hereby request that you provide the Chairman of Parliament with further information regarding the urgency of and reason for the meeting.

Notice is also taken of the fact that the meeting is scheduled for 6.00pm. Please explain the reason why the meeting is scheduled for such an uncommon and late hour. Given the current safety and security challenges I am cancelling this meeting.

I herewith request you to submit your request for an urgent meeting within our normal working hours and it will be convened within 4×24 hours, according to the Rules of Order. Awaiting your soonest response.

However, the coalition ignored this and continued with its meeting that had the majority of MPs present – eight of the 15, and Sarah Wescot-Williams was elected new Parliament Chair in spite of De Weever’s cancellation….

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