PHILIPSBURG – There is no justification for spending half a million guilders on a parliamentary inquiry into Mullet Bay of which the outcome will be that the beach is public. That is the opinion of civil law attorney Wim van Sambeek who dissected the inquiry proposal MP Rolando Brison submitted to parliament last week.
In spite of his critical remarks, Van Sambeek has a positive message as well: “One must congratulate MP Brison for all his efforts to bring to our attention that the Mullet Bay area has been undeveloped for almost 22 years.”
But the attorney notes that Brison’s assumption about the beach is wrong: “The beaches are public, based on the beach policy, but the government does not always uphold it. The parliament controls the government and it should make sure that the responsible minister upholds the policy.”
There is however a more basic flaw in the proposal: “Brison lacks understanding of the legal instrument of a parliamentary inquiry. Based on long-standing case law, his proposal fully misses the point.”
A parliamentary inquiry is a far-reaching instrument. “It is only used if it is clear that the other parliamentary rights to pose questions to the government or to request or obtain information from the government are not functioning properly,” Van Sambeek says.
Referring to the explanatory notes with article 64 of the constitution, he points out that a parliamentary inquiry is an instrument “to control and an instrument for determining the truth.”
The inquiry proposal’s objective is at odds with this principle. “There could be no more tunnel vision than drawing the conclusion that – whatever the outcome of the inquiry – Mullet By must be given back to the people.”
In an aside, Van Sambeek wonders whether the desire to give Mullet Bay back to the people has anything to do with the rights of local entrepreneurs who ply their trade on the beach – David and Leopold York (Deleo’s Beach Bar) and former MP Romain Laville (Majula Water and Beach Activities).
Both the Yorks and Laville have licenses to operate their business on the beach. That does not always settle the matter in their favor: “It is a misunderstanding to think that holding a license based on public law creates civil law entitlement. A permit to have a booth somewhere does not imply any right by civil law to be there.”
Brison’s objective to “come up with a solution” – as his proposal states – “shows that he does not understand that a parliamentary inquiry should only be done if the outcome is unclear,” Van Sambeek says.
That the inquiry will also focus on the ownership of Mullet Bay is odd, given the reference to the “current owner” in the proposal. Determining what is what in this respect is the task of the Cadastre, the attorney says.
The inquiry-proposal also mentions the need for government to intervene but Van Sambeek says that this can be done without an inquiry: “Just uphold the current policy.” Not that this is a surefire way to get results, given the fact that the government violated its own beach policy in 2015 by putting six market vendor booths on Great Bay Beach in front of the Passanggrahan Hotel.
And then there is the issue of the ownership of Mullet Bay. “Brison wrongly states that the claimed ownership by Mullet Bay is in conflict with the law. But the state is the presumed owner of the beaches and the sea. This is a legal presumption; the opposite side has to prove ownership. Brison’s misunderstanding is that ownership implies that one can do as one pleases with a property all the time.”
Van Sambeek concludes that the proposal “does not meet the basic understanding of a parliamentary inquiry. The beach is public, even if Mullet Bay (that is: Sun Resorts – ed.) turns out to be the owner.”
And what about the ownership of the Mullet Bay property? The inquiry-proposal hints at the possibility of expropriation but there it could very well come into conflict with St. Maarten’s constitution and with the European Human Rights Treaty.
Article 15 of the constitution states that everyone is entitled to the unencumbered use of his property, safe limitations stipulated by national ordinance.
Dr. Tom Salemink teaches Corporate Law at Radboud University in Nijmegen. He is an expert in corporate governance and corporate litigation. In an article published on navigator.nl he notes that the European Human Rights Treaty relatively quickly assumes that someone – or some entity – is violating somebody’s property rights. In case of expropriation there is no doubt, Salemink wrote: that is a violation of property rights.
Therefore, expropriation must be properly motivated and answer three basic questions. The first one is whether expropriation is regulated by law; the second question is whether the general interest justifies expropriation. The last question is whether there is a just balance between the promotion of the general interest and the protection of the rights of the individual citizen.
Photo captions: Images above taken from Wim van Sambeek’s Facebook profile page.
###
Related articles:
Editorial: “Mullet Bay to take center stage”
MP Rolando Brison refutes legal review of his inquiry-proposal by Dutch attorney
MP Rolando Brison submits proposal for Parliamentary inquiry into Mullet Bay
Mullet Bay Parliamentary Inquiry proposal – full document
Video recording of MP Rolando Brison on Mullet Bay
