Discrimination of non-Antilleans is a time-tested practice

~ Non-Antilleans must apply for a business license when registering a sole-proprietorship in St. Maarten ~

PHILIPSBURG — Ministers and parliamentarians swear allegiance to the Kingdom Charter and the Constitution of St. Maarten when they take office. However, history shows that when it comes to making rules and regulations, politicians have a tendency to forget this and basically do whatever they like. A case in point is the violation of article 16 of the Constitution.

This article states: “Everyone who is in St. Maarten will be treated equally in equal circumstances. Discrimination based on religion, political affiliation, race, skin color, language, national or social descent, belonging to a national minority, wealth, birth of any other ground is not permitted.”

Article 41 of the Constitution contains the pledge ministers and politicians make when they take office. Part of this pledge is expressing their allegiance to the Kingdom Charter and maintaining the Constitution of St. Maarten.

That’s clear, isn’t it?

The researchers of the Economic Research Foundation who put together the report about the business climate in St. Maarten found that the local bureaucracy does not pay heed to the Constitution. Rules for establishing a business are different for Antillean-born and non-Antillean born entrepreneurs, their report states.

Related article: Doing business in St. Maarten: bottlenecks and solutions (part 1)

Antillean-born entrepreneurs can set up a sole proprietorship simply by registering it at the Chamber of Commerce. Non-Antilleans (this includes Arubans born after 1986 and those born on the French side of the island) must apply for a business license.

For a limited liability company, non-Antilleans must apply for an operational license, a director’s license, a license for their business activities and a hindrance permit.

Discriminating against foreigners is a time-tested practice in St. Maarten because the additional requirements for foreign entrepreneurs are nothing new.

This appears from a ruling of the Council for Tax Affairs from August 20, 2004. Yep, that’s almost twenty year ago. Six companies filed an appeal against a decision by the Executive Council at the time about the payment of retribution.

The companies had obtained permits to open a business for an undetermined period of time. But after they had paid for the permit, the island territory imposed annual fees based on the precario- and retribution ordinance of 1946. St. Maarten levied retribution for, among other things, services provided to third parties by or on behalf of the island territory.

The companies lost the appeal, but that is the reason for referring to this ruling. The companies argued that the legislator discriminated based on nationality because Dutch citizens born in the Antilles do not need to have a permit to establish a company. Dutch citizens born elsewhere were required to have such a permit and they were therefore also subject to paying retribution.

That rule was put in place to protect Antillean entrepreneurs against Europeans who fled Europe during or after the Second World War.

The Council of Appeal ruled that this discrimination had become “obsolete” but it declined to solve the issue because it did not want to make political choices.

“Therefore the Council offers the legislator of St. Maarten the opportunity to adjust the relevant article in the regulation for the establishment of a business or establish that there is still a reasonable and objective justification for the existing distinction between Dutch citizens based on their place of birth. If the legislator does not take this opportunity, the judge will provide a solution.”

We know now that the rule remained and that the court never intervened.

The companies furthermore pointed in their appeal to the difference in tariffs for entrepreneurs based on their place of residence. The Executive Council denied that this is discrimination and in this case, the Council for Tax Affairs agreed: “This does not violate the equality principle. The Executive Council’s supervision of a permit holder who lives outside of the Netherlands Antilles is not as simple as supervising a resident. This justifies the difference in tariffs.”

###

Related articles:
Doing business in St. Maarten: bottlenecks and solutions (part 1)
Does the goal justify the means?