A closer look at the rules for suspending parliamentarians
PHILIPSBURG — On February 19, 2019, Theo Heyliger, then a member of parliament for the United Democrats party (UD) was arrested on suspicion of taking bribes from construction companies. The Public Prosecutor informed the Minister of Justice that Heyliger was therefore suspended by law as MP, based on article 50 of the Constitution.
MP Sarah Wescot-Williams, then President of Parliament, asked Rotsburg Juridische Dienstverlening en Onderzoek (Legal Services and Research) for an analysis of the interpretation of article 50. Prof. Gerhard Hoogers, who teaches constitutional and administrative law at Groningen University put the article under his microscope.
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The suspicions against Heyliger amounted to violation of two articles in the Criminal Code. Article 50 of the Constitution stipulates that these violations terminate someone’s membership of the Parliament in case of a conviction and that they result in suspension by law in case an MP ends up in pre-trial detention.
On March 7, 2019, the Parliament noted that Heyliger was no longer an MP. However, on May 21, the Public Prosecutor lifted his pretrial detention for medical reasons. “The suspicions against him were explicitly not terminated and there were conditions to his release,” Hoogers states in his analysis. Heyliger’s situation resulted in questions in Parliament about the interpretation of article 50.
Hoogers writes that article 50 is unique within the Kingdom. “It fundamentally violates the point of departure that membership of the Parliament can only be terminated by voluntarily stepping down, death or a fundamental constitutional objection like loss of Dutch citizenship as long as the Parliament to which the member has been elected is not dissolved. This is of significant constitutional importance because the electorate has gifted this person with the mandate to represent the people.”
Because this is so important, Hoogers considers it a good thing that St. Maarten had regulated the limitations in article 50. It describes that MPs who have been irrevocably convicted to a prison sentence of at least a year for a crime that allows taking away (passive or active) voting rights, lose membership of parliament by law. This is also true for MPs who have been irrevocably sentenced for a number of specific crimes.
The Constitution also stipulates that an MP will be suspended if he (or she) is in pretrial detention on suspicion of specific crimes that are mentioned in the Constitution.
An MP who loses his membership will be replaced. The seat of a suspended MP will be temporarily taken up by the next in line on his party list. “A suspended MP can return once his pretrial detention has been terminated or when his sentence is voided on appeal or in cassation,” Hoogers notes.
But does the termination of pretrial detention always mean that a suspended MP can return to his seat? Hoogers: “Based on the letter of the Constitution this is so. A grammatical, textual interpretation of article 50 leads to the conclusion that the suspension ends when the pretrial detention ends or is lifted.” This interpretation would have allowed Heyliger to return to Parliament per May 21, the day his pretrial detention was lifted.
But Hoogers points out that article 50 does not reckon with a situation whereby pretrial detention is lifted for other than penal reasons. “Heyliger was not released because the suspicions against him were dropped but because of his bad health.”
Hoogers refers to what the explanatory memorandum says about article 36 (which is also applicable to article 50): “It states explicitly that the regulation is meant to emphasize that politicians have a function as role models and that the legal consequences of these articles have to kick in in case of gross violations of that role. From that perspective, it is very relevant that the lifting of Heyliger’s pre-trial detention was not because the serious suspicions against him had been dropped; on the contrary. Therefore it stands to reason that the suspension had not ended and that was still impossible for Heyliger to function as a member of parliament.”
Another point is that Heyliger was not capable of doing his work as an MP anyway because of his medical condition, Hoogers notes. That makes it logical to let his temporary replacement continue. “But the Constitution does not contain an option for replacing a member of parliament because of illness.”
Hoogers suggest creating a national ordinance that would give a suspended MP the option to ask the Parliament for a decision about the termination of his suspension. “The disadvantage is however evident: it subjects the decision about the return of a suspended MP to a political judgment. Whether this is desirable, given the small scale of St. Maarten’s society and its associated political culture, is a question that will have to be answered by the legislator.”
Article 50 stipulates that a suspended MP continues to receive a salary, but it does not specify whether his replacement is also entitled to payment. Hoogers: “It is reasonable that this has to be so. Those who function as Member of Parliament execute a task of the highest social order.” Hoogers also refers to the memorandum of the Constitution that states that membership of parliament must be considered as a full-time job.
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