Published On: Mon, Aug 29th, 2022

Sympathy for the Devil

By Hilbert Haar

Wrestling through a press release issued by MP Rolando Brison, leader of the United People’s party (UP), a couple of things stand out. First of all this statement: “The constitution can never be sidelined.”

This seems to indicate that MP Brison wishes to live up to the oath he took when he became a Member of Parliament: allegiance to the King and the Kingdom Charter, maintaining the State Regulation of St. Maarten and promoting the wellbeing of St. Maarten to the best of his abilities.

But there are also a few statements that offer a glimpse into the way MP Brison is really thinking and they both relate to the suspension of MPs Theo Heyliger and Claudius Buncamper.

“I truly sympathize with the suspended MP,” Brison states about Buncamper. About Heyliger: “As much as I wanted MP Heyliger to rejoin us in parliament …”

And there you have it: MP Brison sympathizes with two suspended parliamentarians who both have been found guilty of lining their pockets with bribes at the expense of the people they are supposed to represent.

Sympathy or not, MP Brison emphasized that Parliament has no authority to disregard article 50 of the Constitution. This article regulates under which circumstances parliamentarians are suspended by law. “Whether we agree or disagree, this article must be applied.” You can almost feel the pain this reality is causing to our elected representative.

MP Brison also offers some kitchen table philosophy about Jus Cogens and Jus Dispositivum in his press release. What do these terms actually mean?

Full disclosure: I did not study law or Latin so I had to look it up. The Merriam-Webster dictionary defines Jus Cogens as “a principle of international law that is based on values taken to be fundamental to the international community and that cannot be set aside.” The dictionary offers a clear example for readers who are still mystified by this definition: “It is doubtful that any state has ever violated jus cogens norms on a scale rivaling that of the Third Reich.” Genocide and slave trade are violations of jus cogens.

Jus dispositivum applies to laws that have been adopted by consent. The principle is based on the self-interest of participating states and it only binds states that have consented to be governed by it.

MP Brison correctly points out that political rights are not jus cogens. Therefore it is not possible to change their application.

Is there then no way out of this situation that apparently does not please our politicians? MP Brison thinks that there is. “Our only recourse is to amend these articles.”

That is not as simple as it sounds, because changes to the local constitution require the approval of the Dutch Second Chamber, MP Brison states.

This is not correct: changes to the local constitution require the approval from the government of the kingdom (article 129, paragraph 4). Intended changes to articles that relate to the authorities of the parliament cannot be submitted to parliament and cannot be approved by parliament before its initiators have sought the opinion of the Kingdom government.

If a proposal to change the local constitution ever comes to parliament it needs a two-third majority (in other words: 10 votes) for approval.

This may feel like an uphill battle, but MP Brison encourages the Committee for Constitutional Affairs “to continue to be active in identifying the articles that need amend(ing) and prepare drafting these amendments.”

“This may be challenging as these changes would need approval in the Second Chamber,” MP Brison’s press release incorrectly states. “But I believe if properly motivated we will succeed.”

What do I think about all this? If the objective of any change is the protection of parliamentarians that have been found guilty of a crime, it is a bad idea that will set the wrong example. On the other hand, there is not much to worry about right now, because history shows that drafting laws, let alone drafting amendments to the Constitution, is not the strong point of our Parliament.

It is a comforting thought that the Kingdom government has the authority to withhold its approval from changes aimed at keeping criminally convicted parliamentarians like Theo Heyliger and Claudius Buncamper in their overpaid seats.

I put my money on the chances that nothing will change and that badly behaving politicians will just have to suck it up.


Related article:
Press release Brison: Brison: Constitution can never be sidelined