Published On: Fri, Jan 17th, 2020

The Conspiracy to Rehabilitate Christophe Emmanuel

Hilbert HaarBy Hilbert Haar

An anonymous letter writer has posted several installments on the 721news website under the headline The conspiracy to ruin MP Christophe Emmanuel. The stories come across as exhaustively researched and the writer seems to have access – or has somehow obtained (legally or illegally) some internal government emails.

In the third installment, the writer addresses the topic of screening. To cut a long story short: the argument he makes is that there was no reason why Emmanuel could not get through the screening to become – again – minister of VROMI in the interim cabinet. In my opinion the writings amount to a conspiracy to rehabilitate Emmanuel. Let me explain…

After examining current legislation, the writer concludes: “Nowhere is it stated that a prospective minister can be denied the post of minister if one is a suspect in a criminal investigation. Democracy is being trampled – being a suspect means you cannot be a minister; based on absolutely nothing.”

Now if this was true it would be terrible for Emmanuel. But the reality is slightly different from what the anonymous writer wants his readers to believe.

I consulted the Handboek Caribisch Staatsrecht (Manual Caribbean Constitutional Law) by Prof. Arjen van Rijn to get a handle on this situation. First of all, Van Rijn notes that the national decree appointment ministers and minister plenipotentiary – the basis for the screening – only has the status of policy. It is not regulated by law in a national ordinance; this does not make the screening process illegal – it is, after all common and accepted practice in St. Maarten. That makes complaining about this process after you failed to get through it rather pointless.

Contrary to what the letter writer states, the screening process is therefore not a violation of the constitution.

So what does this screening process entail exactly? I refer again to Prof. Van Rijn. The basis is the national decree appointment ministers and minister plenipotentiary. It contains guidelines to prevent conflicts of interest, an integrity declaration and it demands the divestment of undesirable business interests. Furthermore the screening includes a judicial background investigation and a security investigation.

Does it say anywhere that someone who is the subject of a criminal investigation cannot be appointed as a minister? No, I’ll give that point to the anonymous letter writer, but there is more to this issue of course.

Van Rijn in his Manual Caribbean Constitutional Law: “Establishing whether an appointment is compatible with the results of the screening leaves logically some space for interpretation. The responsibility for this is with the formateur and the vice chair of the Council of Advice.”

This is a key element in the whole procedure. The formateur for the interim cabinet was Silveria Jacobs, the leader of the same party Emmanuel belongs to – the National Alliance. It is therefore fair to say that Jacobs had at least influence on the decision to prevent Emmanuel from a return to a ministerial post.

Currently, word on the street is that Jacobs apparently let Emmanuel know that he could return as a minister in the new government. However, Van Rijn’s manual makes clear that the formateur is not alone in this decision-making process. The vice-chair of the Council of Advice also has to come on board.

After the recent passing of its vice-chair Mavis Brooks-Salmon, that would be the acting vice-chair Mrs. M.M. Hazel.

The letter writer also refers to a Kingdom instruction from 2014 that ordered the governor to not sign off on the appointment of any candidate-minister until their integrity could be guaranteed. That instruction expired before the elections of 2016, but it has no effect on the authority of the governor to withhold his signature from the appointment of a candidate minister.

Ministers are appointed by national decree and the governor has the authority to withhold his signature from such decisions based on article 21 of the Regulation for the Governor. If an appointment conflicts with – among other issues – interests of which the provision or the guarantee is a kingdom-affair, the governor is entitled to withhold his signature.

And because guaranteeing good governance in St. Maarten is a kingdom affair, the governor could very well stand in the way of an appointment proposed by the formateur.

All this does not mean that the national decree appointment ministers and minister plenipotentiary is perfect. In 2014 the Committee Incorruptible Public Administration (Commissie Integer Openbaar Bestuur) concluded that the decree is “meager” and that the procedure is “fragmented and confusing” because some rules apply before an appointment and some apply after someone has already been appointed. The committee recommended remodeling the decree after the one that is in place in Curacao. But so far, Van Rijn’s Manual states that the legislation has not been amended.


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