Published On: Sun, Oct 27th, 2019

The law on long lease

By Hilbert Haar

The Christophe Emmanuel case begs a lot of questions. The first one is of course whether a crime was committed at all.

From the currently available information it is hard to answer this question one way or the other.

Emmanuel’s attorney Zylena Bary has a point when she says that the Prosecutor’s Office is not there to deal with government policies. The prosecutor’s office deals with crimes.

After the MP’s arrest, the prosecutor’s office said in a statement that suspicions against Emmanuel and his former Chief of Staff Marisha Richardson have to do with “abuse of function and forgery or complicity to forgery.”

Furthermore, the statement contains the following lines: “The suspects are accused of unlawfully long leasing land to acquaintances at the end of their tenure in 2017. As a result other applicants were disadvantaged.”

Attorney Bary has been making a big point of the lack of a long lease policy. Minister Giterson has said as much in Parliament: “Domain Affairs actually is devoid of long lease policies.”

The question is now whether this matters. After all, there is a National Ordinance in place that regulates the issue of government-owned land in long lease. A policy would only provide further specification of how the government intends to execute that ordinance.

In my opinion, the lack of a policy does not excuse ministers from following the law. And the national ordinance on the issue in long lease of land belonging to St. Maarten is quite clear. It states in article 1 simply that the Minister of Public Housing, Urban Planning, Environment and Infrastructure “is authorized to issue land in long lease.”

While this seems to settle the matter in favor of the embattled former VROMI-Minister Christophe Emmanuel, there is a catch. Chapter 2, article 1, of the ordinance states the following: “The minister is authorized to lease, grant in long lease or allow use in any other way of property of St. Maarten for longer than five years if this is done by public tender and followed by granting (the land) to the one who has tendered for the highest amount.

A minister therefore cannot just grant land in long lease to anyone of his choosing without following proper procedure.

Policies are usually the product of a specific ministry – and that’s okay, providing of course that such a policy does not overstep limitations laid down in a national ordinance. Such policies should also be made public – through publication in the National Gazette. That gives all citizens the opportunity to take a look at the rules they have to follow and at the proper actions they may expect from their government.

I am not familiar with the intricacies of criminal law to the point where I could say for sure that abuse of function is a criminal offense. I just don’t know. My best guess, based on the press release from the prosecutor’s office, is that yes – it is a crime. Forgery is another matter altogether and that sounds to me like an accusation that could stick in criminal court.

The argument from some local pundits “that other ministers have done the same in the past” does not make any sense to me. When you are caught overspeeding the argument that others have done the same does not exonerate you either.

There seems to be however a notable flaw in the actions undertaken by the Prosecutor’s Office and the National Detective Agency. Unless I have missed it I did not see any report about a request for permission to investigate MP Emmanuel to the Common Court of Justice. That permission is required by law.

If this has indeed been an oversight, the case against Emmanuel and his co-suspect Marisha Richardson will fall apart before it even started. Then the good MP will have good reason to get mad at his most unpopular institution on the island: the Prosecutor’s Office.


Related links:
Domain Affairs is devoid of long lease policies
Exclusive interview with Gromyko Wilson of 721news.com
These are the three videos that the lawyer Zylena Bary spoke about in the interview:
Video # 1
Video # 2
Video # 3