Published On: Wed, Oct 20th, 2021

Is the Constitutional Court such a good idea?

By Hilbert Haar

St. Maarten’s judicial system contains a unique institution: the Constitutional Court. No other country in the Kingdom of the Netherlands has such a court. Is that good or bad?

First of all it is good to remember that local politicians were soundly asleep when they approved a huge pile of legislation during the last meeting of the territory’s Island Council back in 2010. The Island Council members rubberstamped everything and made the establishment of the Constitutional Court a non-item.

Fact: not the local Parliament but the Constitutional Court is the highest authority in Sint Maarten. The Parliament legislates, but if it approves a law that violates the Constitution it will find the Constitutional Court in its way. One example: when Parliament wanted to change the criminal code and legalize life imprisonment, the Constitutional Court struck it down.

Constitutional Court rulings are binding and it is not possible to appeal them. The court is also entirely free in the way it judges evidence.

This alone sounds scary enough but it gets worse when you realize that the constitutional court consists of just three members. Three judges have complete control over what the local parliament can and cannot legislate.

Recently Geert Corstens, a former president of the Supreme Court in The Hague said in the TV broadcast Buitenhof that it is about time that the regular courts get the authority to review whether a ruling is in line with the constitution. Currently this is not possible under Dutch law.

Related article: Corstens pleads for judicial reform in the Netherlands

Corstens warns that this authority should not be given to a constitutional court. The best way, according to him, is to put constitutional review in the hands of three instances: the court in first instance, the court of appeal and, ultimately, the Supreme Court.

Constitutional Courts are easily politicized, Corstens pointed out. In the case of St. Maarten, one could wonder about this observation. Two of the judges are nominated by the (Dutch) Council of State and by the Common Court of Justice. The third candidate is nominated by the government of St. Maarten. This government has to consult with the Constitutional Court about its candidate, but the outcome of these talks is not binding.

Currently the court’s members are Bob Wit (Judge at the Caribbean Court of Justice), Jan de Boer (Judge at the Common Court of Justice in Willemstad) and Ben Vermeulen (member of the Council of State).

In this setting, Justice Wit is the candidate of the government of St. Maarten. In 2014 he chaired a committee that assessed the country’s troubles with integrity (Doing the right things right). Wondering up to which point Justice Wit tends to go soft on decisions that would go against the wishes of the government are a moot point, because Wit will retire per February 1, 2022, having reached the age of 70 a month earlier. More interesting will be which candidate the government will present as his successor.

While lifetime appointments would have been indicated to guarantee the independence of the three judges St. Maarten has opted for appointments for a period of ten year, with the option of one re-appointment. This was done to promote the judges’ connection with developments in the community.

Whether the Constitutional Court will continue to exist and keep its stranglehold on local legislation is an open question. So far, the new generation of politicians has not addressed this issue. That could mean one of two things: they are okay with the status quo or they simply don’t care.