Published On: Thu, Aug 23rd, 2018

Justice Delayed is Justice Denied

By Fabian Badejo

The decision of the Joint Court of Justice to grant the Public Prosecutor’s Office permission to prosecute United Democrats (UD) leader, MP Theo Heyliger, continues to generate public discussion. However, the whole judicial system as it operates on St. Maarten, needs to be further scrutinized vis-à-vis the dispensation of justice.

Justice, in a colonial setting, is different from justice in a sovereign nation. Throughout the history of colonialism, the judiciary functioned as one of the pillars upholding the system, usually under the pretext of maintaining “law and order”. But whose law? And whose order?

St. Maarten, as a so-called “autonomous country within the Kingdom of the Netherlands”, is nothing more than a glorified colony. The current constitutional arrangement creates the illusion that the Kingdom Government (read the Dutch Government) is only responsible for defense and foreign affairs, while ALL the other matters are in the hands of the “autonomous” countries. The reality, however, shows clearly that this is not so. The judicial system is a perfect example. The judges are appointed for life by “royal decree”, in other words, by the Dutch Government. The same goes for the Attorney General, who, in the case of St. Maarten, does not even reside on the island.

But what is more germane to the current discussion is the mantra that we should “let justice take its course.” Nobody would have any problem with that if, indeed, we were guaranteed that such a course would not deviate in any form or fashion from the principles of natural justice. These include that you will be judged by your peers, in other words, by people who look like you, speak your language, are part of your community and culture, and are sworn to fairness and impartiality.

This is absolutely not the case on St. Maarten. Let me illustrate my point. Would any Dutchman or woman agree to be judged by a court in Amsterdam composed of Zulu judges and prosecutors, speaking Zulu, (oh, of course, with interpreters) and with the highest court to which they can appeal located in the KwaZulu-Natal province of South Africa?

I can hear the outcry already with shouts about this being an infringement of human rights. But the situation gets even worse on St. Maarten when other factors are taken into consideration. For example, in the pending prosecution of Theo Heyliger, the Public Prosecutor’s Office states that the politician is alleged to have committed bribery between 2012 and 2013. That is some six years ago! And only now did the Prosecutor seek authorization to go ahead with the case?

In another well-publicized case involving Regina LaBega, the former Managing Director of the Princess Juliana International Airport and yours truly, the allegations of criminal wrongdoing go back to 2010, when she was Director of the St. Maarten Tourist Bureau; that is eight years ago!

The so-called “Constitution of Sint Maarten” acknowledges the adage, “justice delayed is justice denied,” when it states in Article 26 that “In the establishment of their civil rights and obligations and on prosecution for a criminal offence, all persons have the right to fair and public handling of their case, within a reasonable time, by an independent and impartial judicial institution.”

Is six years a “reasonable” time to handle an investigation of alleged “bribery”?  Is eight years a “reasonable” time to bring a case of alleged “fraud and embezzlement” to court? Let us put this in broader perspective: we are talking of a jurisdiction (St. Maarten) with a population of 40,355 inhabitants (according to official figures) occupying a territory of 16 square miles! Even in countries with infinitely larger populations and geographic areas, five years wait for a case to be brought to court would be seen as a violation of the human rights of the accused.

The British author and poet, Walter Savage Landor, once said, “Delay of justice is injustice.” But in St. Maarten, the delay of justice is not only injustice, it is punishment, even torture, which is proscribed not only by the United Nations, but also by the island’s “Constitution”. How do you live a normal life, with the Sword of the Prosecutor hanging over your head for years? How can your family live a normal life while they’re expecting that early morning knock on your door, Gestapo-style, for you to be shackled away in front of your children and loved ones, for so-called pre-trial detention? How do your children go to school as if nothing happened?

It was Cicero who said, “the foundation of justice is good faith”? How can anyone have “good faith” in this justice system?

I shall reserve the discussion of the presumption of innocence until proven guilty for another day. Meanwhile, let me take some poetic liberty to conclude with a variation on an African proverb: A hen cannot expect justice from a court comprising of foxes.


Related letters:
This is not just about Theo
Guilty Until Proven Innocent