Good Governance and the Didam Arrest: Implications for Sint Maarten
Dear Editor,
When discussing good governance, many typically think of government and governmental organizations. Several scientific definitions could be cited, but in daily life, it boils down to a few principles. Good governance encompasses transparency, accountability, responsibility, and the rule of law. For government and its subsidiaries, this means that their decisions should be transparent, procedures must be understandable and open to at least the involved parties. Accountability implies that people must be held responsible for their behavior and actions, carrying the consequences of such actions. Responsibility, on the other hand, pertains to the fact that besides accountability, people must behave and act in ways that do not affect the government’s interests. These three principles converge in the rule of law, which generally means that the government has an obligation to apply the law to everybody without exception, meaning the law applies to all.
The Didam Arrest and St. Maarten (SXM)
Recently, an article was published alleging that the above-mentioned verdict of the Dutch Supreme Court will have consequences for SXM. The crux of the said verdict is that when the government wishes to engage in any transaction concerning governmental real estate, it must adhere to the general principles of good governance, known as “de algemene beginselen van behoorlijk bestuur” in Dutch. I will confine my discussion to cases involving the issuance of long leases and building rights for public works projects, where the principle of transparency holds significant importance. Particularly when close relatives and/or economic entities are involved, the government must act transparently. This implies that the government should provide clarity about the procedure that led to the decision to issue long leases or grant building rights for infrastructure, housing, and other public works projects. Failure to do so would result in not only the government but also the individual governmental official(s) responsible for adhering to good governance principles being held accountable and facing legal consequences. The rule of law must be objectively applied, and those involved must accept the consequences. In cases where close relatives and business associates are granted long lease land, the Minister of VROMI, through the head of Domain Affairs and the VROMI director, should be accountable to the public, ensuring that there is no nepotism, fraudulent activity, conflicts of interest, or any other irregularities in the procedure leading to the final decision to issue long leases or any other rights on government-owned lands. Engaging with the public and providing information to help them understand the decision-making process will make it more acceptable and reduce misunderstandings and misinterpretations.
In cases of wrongdoing, those involved should take responsibility and face the consequences of their actions.
The Role of the Notary
Notaries cannot be considered guardians of good governance because their role is defined by the law. The primary task of a notary is to ensure that the title being transferred, including cases involving the government, is legally obtained by the party receiving it and that it is not burdened in such a way as to make the transfer impossible or to limit the recipient in exercising their rights. Personally, I believe that notaries should not be tasked with policing the government’s adherence to good governance. It is the mindset of the politicians that needs to instill an awareness that practicing good governance is in the country’s best interest. Politicians must understand that they are public servants, accountable to the people rather than the other way around. In other transactions not involving real estate, notaries have a different role, but all their responsibilities are outlined in laws and regulations.
Pels Rijcken analysis: granting long lease has to be in accordance with Didam-arrest
Implications of the Didam Arrest
As part of the Dutch Kingdom, SXM must follow the direction outlined in this verdict. The government must feel obligated to account for its actions and decisions to the public, extending beyond land issues to encompass areas such as social affairs, health, and education. To take this matter seriously, the government must establish procedures that allow the public to access information, gaining insight into the actions and decisions of government officials at all levels.
ir. Clemens Roos, MA
ir. in Geodetic Engineering, specialized in Cadastral systems and Land registration
MA in Public Administration, specialized in Governance
Certified in Operational Safety (VCA-VOL)
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Related articles:
Supreme Court-decision affects long lease-rules in St. Maarten
Pels Rijcken analysis: granting long lease has to be in accordance with Didam-arrest
