An Elected Prime Minister for Sint Maarten

Legal opinion piece titled “An Elected Prime Minister for Sint Maarten” by attorney at law and member of our legal review committee, Mr. Reynold Groeneveldt.

Introduction:

In our current Governmental system the Prime Minister is chosen and appointed by the majority in Parliament. It is in fact the coalition in Parliament that determines who will become the Prime Minister of the Country after an election. Traditionally this position should go to the Political leader who obtained the majority of votes during the Parliamentary election. As this is not a written rule in our constitutional system, parties have often times deviated from this traditional custom or norm.

After an election the Governor will consult with the parties that have obtained seats in the Parliament, an “informateur” can be appointed to explore which parties are interested in forming a coalition and working together. Subsequently the Governor will appoint a “formateur”, based on the indications of the Political Parties forming the coalition, to guide the negotiation process between the coalition parties and prepare the formation of a new Government/Council of Ministers.

This will include the determination who will be the Prime-Minister and the to be appointed ministers and which portfolio’s will be allotted to which parties as well as the Governing Accord and the Governing Program. Traditionally the “formateur” would usually become the Prime Minister. In recent times however the Political Parties here on Sint Maarten have on several occasions deviated from this custom. The current system gives the general public very little insight, control and or influence in the process resulting often in an unexpected surprise as to who will become the Prime Minister and who the appointed Ministers will be.

The position of the Prime Minister

Consequently, the position of the Prime Minister is vulnerable as it is directly influenced and determined by the Parliament. While the Trias Politica Doctrine dictates that there should be a separation of powers between the Executive Branch the Council of Ministers, the Legislative Branch the Parliament and the Judiciary, there is a close and direct relationship between the Executive Branch and the Legislative Branch. In order for the Prime Minister as well as the Cabinet of Ministers to function and remain in function they must have the political support of the majority in Parliament (the Coalition) as required in article 33 of the Constitution.

One of the main functions of Parliament is to oversee and control. This means that the Parliament has to exercise oversight and control over the actions/ non actions and the overall functioning of the Executive Branch. Given the above-mentioned described process of selecting the Prime Minister and the Cabinet of Ministers, it is difficult for Parliament to exercise its oversight function objectively and effectively. One would often notice that the Parliament is reluctant to call one or more Ministers or the entire Cabinet of Ministers to order or to account for their performance.  It would appear as if Parliament is thinking, we are the ones who put him/her there we do not agree with the actions, but we have to protect him/her.

Or he/she is from my party so I can’t go hard on him/her. In other words, the ability for Parliament to exercise its oversight and control function is severely compromised. This can result in a Government that is not performing or under-performing and not taking the interest of the general public sufficiently into consideration without being called to order or to account for their actions by the majority in Parliament.

The causes of the Cabinet’s crisis:

In the event of a serious conflict between the Government and the Parliament, or in the event the Coalition looses it majority as a result of ship jumping or one or more members declaring themselves independent and withdrawing their support for the Government, parties are not inclined to negotiate and resolves their political difference.

Standard has become the scenario that the Parliament will make use of article 33 sub 2 of the Constitution and table a Motion of No Confidence against the Government and the Government in return will invoke article 59 and dissolve the Parliament, resulting in the frequent changes of the Government and the Country having to on a very frequent basis organize new and costly elections. In the past 9 years we have had 9 different Cabinets of Ministers and 4 elections while elections are regularly due to be held every 4 years.

In the cases where the Prime Minister does not have a legitimate support in Government for instance the party that supplied the Prime Minister does not command a substantial amount of seats in Parliament it becomes more difficult for the Prime Minister to command and maintain the support of the Coalition. In other words, the Prime Minister does not have sufficient legitimacy to govern, resulting in an indecisive and often unproductive Government.

As a result of the foregoing, our Country has experienced much instability in Government since obtaining the status as an Autonomous Country within the Kingdom. Government has not being able to govern for a full period of 4 years but instead Governments are in office on average for just one (1) year.

It is evident that under these circumstances the progress of our Country and the wellbeing of our people are severely affected. Our economy and our lively hoods are severely threatened by this trend and it speaks for itself that this situation can not be allowed to continue with making the necessary adjustments.

Transplanted legal norms and structures:

We have taken over and transplanted the current Constitutional structure from the Netherlands, this is a result of our Historic/Colonial ties and the fact that we now form part of the Kingdom of the Netherlands.

I am of the opinion that the Constitutional structure (Trias Politica) is not working for us on account of several reasons. In particular the separation of powers between the Executive Branch and the Legislative Branch is not regulated rigid enough. There exists a too close political relationship between the both branches. The Trias Politica as we know and apply it is not the original doctrine as was designed by Montesquieu. The original doctrine calls for a strict separation of the 3 branches of Government so that each branch can control the other and in so doing avoid excessive use/abuse of power by any one particular branch. This system we have implemented was developed and adjusted by the Netherlands to suit their culture and historic political development. The Dutch Political historic development is significantly different to our development in the Caribbean part of the Kingdom.

Our political culture is significantly different our politicians think and act differently and apply politics in a very different way than their counterparts in the Netherlands. In short politicians in the Netherlands are more tempered, rational and practical than the politicians in the Caribbean who act more impulsive and are less rational or open for dialogue when searching for the best solution in the interest of the general public and the country. Politicians always profess to act in the best interest of the Country while their actions oftentimes do not coincide.

As a result of the aforementioned considerations I am of the opinion that taking into account the political developments and the number of times we have experienced a constitutional crisis since October 10^th, 2010, it is now high time and the appropriate moment to review our Constitutional structure and make the necessary adjustments/ adaptations that are more in line with our Caribbean culture in order to create a system that will result in a more stable government, that will better serve and benefit the people of our country.

Article 39 of the Kingdom Charter:

Recently on September 13^th, 2019, prof dr. mr. Douwe Jan Elzinga published a lecture he gave at the University of Aruba in which reference was made to the Principle of Concordance/Uniformity (Concordantie Beginsel) within the Kingdom. Article 39 of the Kingdom Charter stipulates that the legal arrangements in the 4 countries within the Kingdom should be as much as possible similar.  In this publication Elzinga refers to certain advantages of having the legal arrangement similar but listed a major disadvantage of this practice as it relates to the countries in the Caribbean part of the Kingdom. These “legal transplants” as he refers to the transplanted laws and norms are introduced in the Caribbean countries of the Kingdom without any adjustments while the circumstances here are different than in the Netherlands where the laws were developed. As a result of this, often it is felt that the Dutch policies and norms must be adhered to as the functioning of the Caribbean entities are judged according to Dutch standards. This situation is hindering to a great deal the further development of the Caribbean counterparts and the countries, according to prof Elzinga.

Deviation from the Structure:

Several years ago prof dr.mr. Arjen van Rijn stated in one of his books about the Constitutional Law of the Caribbean countries that our Constitutional Structure and Constitutional Law does not have to be similar to or uniform with that of the Netherlands. He made reference to a discussion paper of November 25^th, 1993 prepared by a Sint Maarten delegation for Constitutional Talks between Sint Maarten and the Netherlands in which it was proposed that Sint Maarten will have an Elected Prime Minister.

I totally concur and agree with the statements of prof. Elzinga and the statement of prof van Rijn. Article 39 of the Kingdom Charter does not form any impediment and no other law restricts the Country of Sint Maarten from creating a Constitutional Structure that deviates from that of the Kingdom and or the other Countries within the Kingdom.  Article 39 of the Kingdom Charter lists the legal arrangements pertaining to: civil law, criminal law, criminal and civil law procedures as the areas in which concordance/similarity is desired and suggested. The Constitutional- and Administrative Law are not mentioned. Consequently there are no legal impediments that prohibit or restrict Sint Maarten from developing a Constitutional Structure that deviates from the rest of the Countries within the Kingdom, providing that all existing Human Rights provisions and all the Generally Accepted Universal Legal Principles, are maintained.

In the Netherlands for many years there have been discussions of implementing the structure of an Elected Prime Minister in the Netherlands. Several political parties have indicated their support for such while others are against and are of the opinion that such a system will not work in the Netherlands. The reasons listed for and against this proposal are not based on legal/practical considerations and are furthermore not relevant for us here in Sint Maarten, and therefore will not be further elaborated on in this context.

The fact that it may not work in the Netherlands does not mean that it will not or can not work in Sint Maarten. Taking the events of the last 9 years into consideration and the recent fall of the Leona Marlin-Romeo II, cabinet it behooves us to seriously look at this proposal and begin making the necessary preparations for Constitutional change.

The Proposal for an Elected Prime Minister for Sint Maarten:

On page 8 of the Position Paper of November 25^th, 1993 the following is stated:

Form of Government:

The Government of Sint Maarten shall be formed by the Prime Minister and by the ministers assigned by him/her after consultation with the Parliament. The Ministers are dismissed by the Prime Minister.

The Governor shall not form part of the Government.

The Prime Minister shall be directly elected. He/she can only be removed from office by means of an “impeachment procedure” in which the grounds for impeachment shall be limitedly enumerated.

The objective of this paper is to present a proposal to adjust our Constitutional structure/Form of Government that will eliminate the frequent occurrence of Cabinet’s crisis and limit the use of article 33 sub 2 and the invocation of article 59 of our Constitution.

The proposal concerning the Governor in the Position Paper of November 25^th, 199, does not have any direct relation to the objective of this proposal and shall consequently not form any part of this proposal and will be further disregarded.

Recommendations/Points of departure:

• The proposal is to elect the Prime Minister during a regular election. This will be stipulated in the Constitution and further regulated in the Electoral ordinance.
• Candidates who wish to take part in the election for the position of Prime Minister shall be required to register with the Central Voting Bureau and meet the requirements set by the Electoral Council.
• A person who has registered to take part in the election for the position of Prime Minister may also take part in the election for the members of Parliament.
• On the day of election two (2) ballots will be distributed in the voting bureau, one ballot will be for a vote for the Prime Minister and on the other ballot will be for the members of Parliament.
• Another possible option is to use one ballot on the day of election, as presently done.
• The candidate who receives the majority of the votes is declared the Prime Minister-elect.
• The Prime Minister-elect shall be appointed as the “formateur” by the Governor.
• The “formateur” shall form the cabinet of ministers after consultation with the Majority (Coalition) formed in Parliament. The members of the Cabinet are subsequently appointed and dismissed by the Prime Minister by National Decree.
• The members of Parliament shall be elected in accordance with the procedures that are established in the existing Electoral Ordinance.
• The appointed ministers must have the support of the majority in Parliament (Confidence Rule)
• Article 33 sub 2 will still apply for the appointed ministers.
• The procedure of a Motion of No Confidence will be further developed, regulating the presentation of the facts, the reasons, the circumstances and the stipulated procedure for submitting and handling such a motion, as mentioned in article 33 sub 3 of the Constitution.
• The principle of proper procedure and a fair hearing of the minister affording him/her the opportunity to explain and defend himself/herself will be further developed.
• The Parliament cannot except for serious/extra ordinary reasons and circumstances as regulated by law, impeach/ dismiss the Prime Minister.
• This will strengthen the position and legitimacy of the Prime Minister as he/she will have a legitimate mandate of the electorate and shall in principle be only removed by the electorate during an election.
• Should a Motion of No Confidence be moved and accepted against one or more ministers, the Prime Minister can replace the minister(s).
• The Prime Minister can resign and or be removed from office and shall be replaced by the next candidate in line with the second highest number of votes.
• Only in the rare event that the Prime Minister is impeached and a Motion of No Confidence is moved and accepted against the entire Cabinet of Ministers, can a Cabinet Crisis occur that could lead to invoking article 59.
• Ship jumping will not necessarily lead to the fall of Government and shall not result anymore in a Cabinet Crisis and the invocation of article 59 to dissolve the Parliament. It will become obsolete.

Closing remarks:

By implementing such a system of government the stability of government shall be better insured, in any event the frequent crisis in government resulting to frequent changes and elections shall be avoided while the phenomenon of ship jumping will not have any negative effects of the system as it does now.

In any system there will be positive advantages and possibly also some disadvantages. At this moment any possible negative advantages are not be foreseen. In any event it is my firm belief and opinion that the positive advantages of the proposed changes to our system will grossly outweigh any negative advantage that may eventually present itself in the future.

The purpose of the proposal is to make it difficult to destabilize Government by creating a crisis which will lead to the fall of Government and the dissolution of Parliament, other than for grave legal reasons and or extra-ordinary circumstances.

Sint Maarten, September 30^th, 2019

Reynold A. Groeneveldt, attorney at law