The far-reaching consequences of the state of emergency

PHILIPSBURG – The state of emergency has far-reaching consequences for the civil rights of St. Maarten’s inhabitants. The national decree that declared the state of emergency refers rather casually to article 112 of the Constitution, but that article actually puts civil rights established in ten different articles on hold. The decree furthermore mentions eight specific articles from the national ordinance emergency situation (Landsverordening uitzonderingstoestand) but it is currently unclear whether other articles from this ordinance also apply without prior notice.

First, let’s take a look at the LV uitzonderingstoestand. Article 3 stipulates that terminating the state of emergency can be done by the parliament or at the initiative of the prime minister. Article 7 states that the minister of general affairs is authorized to ask Curacao and Aruba for military assistance.

And then there is article 10 – one that is not mentioned in the decree. It contains a ban on publishing thoughts or feelings and on transmitting, collecting and receiving information. In other words: a ban on freedom of expression and by extension a ban on freedom of the press. The government has not taken this road, given the curfew-exception for media outlets and the issuance of disaster passes to journalists.  But it could still happen in the near future.

Article 11 is mentioned in the decree; it refers to a ban on public protests and on the participation in meetings. But there is more to it: the article notes that the government can declare places off-limits for the purpose of protecting information. The article also allows the government to clear areas, partially or completely.

Article 12 is mentioned in the decree, but the explanation is not complete. The decree notes that police officers are authorized to enter any building and conduct investigations and searches there. The LV uitzonderingstoestand adds to this stipulation that the officers do not need authorization, that they do not have to identify themselves and that they do not have to disclose the purpose of their visit.

Article 15 (also mentioned in the decree) allows for the requisitioning of buildings. Not only that: the government is also allowed to make changes to those buildings – but that only becomes apparent from the national ordinance.

Article 16 allows the authorities to confiscate items that could put the country’s security at risk or that are required for truth-finding.

Article 18 is not mentioned in the national decree but it is part of the national ordinance. It regulates that the government, if necessary, can identify places to be used for holding citizens who do not obey the emergency-rules. Violators can be held for a maximum of twelve hours.

The punishments for violating the emergency-rules are prison sentences from 1 to 4 years and fines of the third category (maximum 10,000 guilders or almost $5,600) or the fourth category (maximum 25,000 guilders or almost $14,000).

While these rules are by themselves already intimidating enough, article 112 of the constitution mentions another ten articles that can be put on ice during the state of emergency.

The first one is article 2.1: the right to life. “Nobody will be robbed randomly of his life.” But the state of emergency justifies death as a result of a lawful act of war.

Under article 12 citizens also lose protection against law enforcement entering their homes without a warrant, confidentiality of mail and the right to practice religion.

Furthermore article 112 can potentially put freedom of expression (and thereby freedom of the press) on hold as well as the rights of association, meeting and movement.

Lastly, the article could infringe on the ‘undisturbed enjoyment of property” – meaning that if push comes to shove the competent authorities could requisition privately owned buildings.

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Related links:
State of emergency: island on 24/7 lockdown
National Decree State of Emergency
National Ordinance Regulating State of Emergency