DEMISSIONARY OR INTERIM CABINET?

As a young country with its many political challenges, there is a need to understand the various mechanisms and tools available in a democracy laid down in our Constitution. The past seven and a half years have proven that certain provisions of the Constitution require further interpretation. The good news is that Sint Maarten does not have to reinvent the wheel, as we can learn from the experiences of other countries, and certainly from the countries within the Dutch Kingdom, of which we form part. After research and due deliberation it is up to the elected representatives of the people, Parliament – together with Government -, to give utterance to the preferred interpretations by approving required adjustments to our legislation, and subsequently having this ratified. The discussions regarding ‘elections or no elections’ and the recent intervention sought from the Kingdom government prompt a closer look at the phenomena demissionary and interim governments and their functions.

Sint Maarten is a Parliamentary democracy. This means that the majority in the elected body representing the people of the country, the Parliament, should form the government. The majority, which has thus far always been a coalition between two or more parties, presents and supports the Ministers, who are charged with the daily running of the country. Both the individual Ministers and the collective body, the Council of Ministers or Cabinet, need to have the confidence of a majority of the Members of Parliament to do their job. It is the task of Parliament to monitor and supervise the Ministers, and hold them accountable for the job they are charged to do. The moment a Minister or the entire Cabinet no longer has the confidence of the majority in Parliament, actions can be taken with the ultimate measure being a vote of no-confidence passed against a Minister or the entire Cabinet. Reasons for a vote of no-confidence vary from conflict among the coalition parties supporting the government, crisis within the Cabinet, or ‘ship jumping’ by Members of Parliament. The latter has been a rather frequent phenomenon on Sint Maarten. In case of a crisis, the Minister(s), or the entire Cabinet, may also make their positions available to the Governor. It is however ultimately up to Parliament to formally accept the resignation, or not, by forming a new Cabinet. The law does not indicate when a Minister or the entire Council of Ministers are deemed no longer having the confidence of the Parliament. However, article 33 sub 3 of the Constitution provides the possibility for the legislator to among others establish this by National Ordinance.

Since the birth of Sint Maarten as a country within the Kingdom of the Netherlands in October 2010, it happened just once that only one Minister received a vote of no-confidence by a majority in Parliament. In all other instances Parliament expressed no confidence in the entire Council of Ministers, as well as individual Ministers of the Cabinet. A vote of no-confidence past against a Minister or Council of Ministers requires the Minister(s) and or Cabinet to immediately put his/her function to the disposal of the Governor as provided for by the well-known article 33 sub 2 of the Constitution of Sint Maarten. However, the governing of the country must continue notwithstanding the fact that the Ministers made their positions available. What happens then?

Demissionary and Interim Cabinets explored

A Demissionary Cabinet, also called a Caretaker Cabinet, in general continues the current government after the term of a Cabinet has ended. This can either be:

1. After completion of the full term, between general elections (when the new Parliament is installed) and the formation of a new Cabinet;
2. After a Cabinet crisis.

In both cases the Prime Minister hands in the resignation of his Cabinet to the Governor. The Governor will not accept full resignation until a new Cabinet has been formed by Parliament. The Governor will keep the resignation under consideration and invite the Ministers to continue with the current affairs of the government until the resignation is accepted after a new government is formed. Between the moment in which the Prime Minister hands in the resignation and the Governor installs a new Cabinet, the Cabinet is labeled demissionary. The same Cabinet continues after the Ministers put their functions to the disposal of the Governor.

It is customary in our Parliamentary democracy, that the sitting government offers its resignation to the Governor a day before the elections. As a demissionary Cabinet is considered a continuation of the previous Cabinet, it is not regarded as a new Cabinet.

By constitutional convention, a demissionary Cabinet however has fewer powers than a conventional Cabinet. The main aim of a demissionary Cabinet is to organize elections and take care of ongoing business until the new Cabinet comes into power. Thus, besides organizing elections, it can only take care of urgent and pressing matters and not initiate controversial legislation. It is not clear yet in our young democracy who decides which affairs are urgent and pressing, and which are deemed controversial. Such matters are yet to be established either by a legal instrument or tradition. A demissionary Cabinet takes care of policy during elections and Cabinet formation.

An Interim Cabinet is frequently organized when there has not been time to nominate, designate, or elect a government formally. As such an Interim Cabinet has a temporarily status to manage a transition period. An Interim Cabinet enjoys more authority than a demissionary Cabinet. An Interim Cabinet is supported by a majority in Parliament, while a demissionary Cabinet usually does not have the support of the majority in Parliament. (Before the designated elections the Parliament needs a new mandate from the people). An Interim Cabinet assumes its position for a specific period of time till a new (majority in) Parliament sits and a new Cabinet is formed. This has been the case when the R. Boasman Cabinet was replaced by the Leona Marlin-Romeo Cabinet, pending elections on 26 February 2018.

Parliament vs Government

The Constitution of Sint Maarten provides for Parliament to sit for a period of four years, unless it is earlier dissolved. Every four years Parliament requires a new mandate of the electorate to represent the people. This means that the sitting Government, which is supported by the majority in the Parliament in principle also takes office for a period of four years. The right to determine who governs the country and its people is therefore provided to Parliament by the votes of the people.

Each Parliamentary year starts on the second Tuesday of September. In the period between elections and the start of a new Parliamentary year, the Cabinet of Ministers automatically becomes ‘demissionary’ on the date of the elections, as the Ministers traditionally present their resignation to the Governor on the eve of the elections. Parliament can be compared with the Board of Trustees of a company, representing the interest of the owners of the company, the people of the country. A majority in Parliament supports the government. During the governing period of four years Parliament can take action against a Minister or the entire Council of Ministers by passing a vote of no-confidence in the Minister(s) or the Cabinet. The Ministers are then compelled to make their position available/resign. Upon the request of the Governor, the Council of Ministers then becomes “a caretaker”, a Demissionary Cabinet, until a new Cabinet supported by a new majority in Parliament is appointed by national decree. The Ministers of the “caretaker” Cabinet resign when a new Cabinet of Ministers, supported by the new majority in Parliament is appointed.

Pursuant to the now equally famous article 59 of the Constitution, the balance of power within a democracy provides that the Prime Minister on behalf of the Council of Ministers may (immediately) call for new elections by National Decree as a counter move on Parliament.  The  Government becomes demissionary leading up to the elections. It goes without saying that such a situation may not last too long, as this will hamper the proper governing of the country. For that reason the Constitution stipulates that a new election should take place within 90 days.

The debate regarding the tension between the application of the authority of Parliament to express no confidence in an entire Cabinet and the right of the Prime Minister to dissolve Parliament by National Decree on behalf of the Cabinet has not been concluded yet. Reference is made to the so called “Mexican stand-off”;  the Marcel Gumbs Cabinet losing its majority support in Parliament on 30 September 2015, did not immediately tender its resignation to the Governor, and (subsequently) dissolved Parliament. But also the William Marlin Cabinet, losing the majority support on 2 November 2017, followed by dissolving Parliament and the Ministers making their positions available to the Governor, and subsequently a second motion passed by Parliament for the Prime Minister to immediately vacate his position.

While each Cabinet formed on Sint Maarten since 101010 at one point became demissionary either after the loss of the majority support in Parliament or an election, on 15  January 2018 Sint Maarten got its first Interim Cabinet after the Boasman Cabinet, which continued the William Marlin Cabinet as a “caretaker”/demissionary Cabinet, was replaced by the Leona Marlin-Romeo Cabinet. This Cabinet, supported by a new majority, maintained its interim status until the election of 26 February 2018, and continued thereafter as a Demissionary Cabinet. The status of the Leona Marlin-Romeo Cabinet after a new majority was formed by the newly elected members of Parliament on 5 April 2018,  would be an interesting discussion for scholars today.

As indicated above, a Cabinet can also become demissionary in case of a crisis within the Council of Ministers, followed by making the positions of the Ministers available to the Governor, the Ministers resign. This situation never occurred on Sint Maarten. In such a case the Governor would probably only accept the resignations of Ministers after consultation with the political parties represented in Parliament. During this period the Cabinet may only handle current matters, and may not engage in new controversial decision-making. The moment political parties forming a majority in Parliament support new Ministers, the status of the Cabinet changes.

While the difference between a Demissionary and Interim Cabinet is materially minor, some main differences are that a demissionary Cabinet is not a new formation, it is the continuation of the sitting government, but the Ministers have made their positions available to the Governor.

An Interim Cabinet is supported by a majority in Parliament. Parliament can pass a vote of no confidence against the Council of Ministers of an Interim Cabinet, or any Minister, compelling the Minister(s) to resign. An Interim Cabinet has the absolute authority to govern, but can also be charged with the execution of specific tasks.

There are various options to the basic models described above, whereby not all Ministers resign and or are replaced. These options are not further discussed in this article. An outline of the main issues when a government ‘falls’, or is replaced, and new elections are called, gives ample food for thought and discussions on constitutional matters in our young country.

Trivias

1. What is your opinion about a Demissionary Cabinet applying article 59 of the Constitution to dissolve Parliament in accordance with article 59 of the Constitution?
2. What is your opinion about Parliament passing a vote of no confidence against a demissionary Council of Minister or Minister(s), who in principle already resigned?