Published On: Thu, Nov 30th, 2017

Court ruling

The news about the landmark ruling in the court case against Windward Islands Bank shows that not everything that is considered common practice here in St. Maarten, especially after we achieved Country Status on 10-10-10, has a legal basis for it.
Windward Islands Bank (WIB) charges clients a 1% foreign exchange fee. This 1% license fee is what the bank has to pay the Central Bank of Curacao and St. Maarten (CBCS) in order for it to operate as a currency exchange bank. The bank passes this fee on to the clients. The court ruled there is no legal basis for this.
We also know for a fact that the WIB bank charges clients for the 5% turnover tax for its banking services. Is there a legal basis for this? We dare not say yes. The government has always maintained the standpoint that this is a turnover tax and not a sales tax and therefore should not be charged to the clients, at least not openly. However, the government cannot stop a business from raising their prices to cover the extra 5% tax.
Yet, here also we are making the assumption that the government stance has a legal basis as well. If this WIB court ruling has taught us anything is that we must not take common practices for granted.
Parliament has its work cut out for it, because there remain many legislation that still need updating after 10-10-10. On average Parliament has passed one law per year since 2011. Usually, that is when they pass the approval of the government’s budget into law.
Therefore, basically no new laws have been enacted since 10-10-10. Amendments don’t really count. And certainly not motions. Even if we did count amendments, such as those to the criminal and civil codes, we would still be able to count these on one hand for the yearly average since 2012 when the first updates took place in Parliament to the aforementioned codes.
Parliament normally relies on government to take the initiative when it comes to proposing new laws and amendments. However, Parliament does have the right to bring forward proposals for new laws and amendments. But we all know the legal minds within Parliament are few and far between. The same goes for new initiative laws from Parliament.
Nevertheless, we are inviting legal minds in the community to email us their commentaries and opinion pieces on this landmark court ruling and the consequences for the banking community on St. Maarten, the precedents it will set and what our Parliament needs to do in order to correct that legal and financial quagmire post haste. We will be studying the ruling carefully and we will publish our informed opinion on it as well.