CONSTITUTIONAL CHAOS

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Hurricane Irma destroyed our country, displaced our people and exposed our government. Governing now appears to be dominated by politics. Decisions that should be made in the interest of the people seem to be solely politically motivated. Take for example the decision to hold elections at a time when people are roofless, homeless and suffering. Apparently, the coalition members knew months ago that if parliament gave government a vote of non-confidence, due to ship jumping, government would retaliate by dissolving parliament. This was purely a political choice and had absolutely nothing to do with what was best for the people of Sint Maarten at this time. In the eyes of the government, calling for snap elections may have been a smart political move, but from the perspective of the people it was a very bad governance decision.

Limited space in this paper will not permit me to chronicle all the details leading up to the vote of non-confidence and the retaliatory decision by the Council of Ministers to dissolve Parliament. Neither will I be able to detail the process of tinkering with the constitution by our Governor in order to accommodate the political decision to have snap elections.

In the aftermath of hurricane Irma, one could clearly observe the buildup of political tension in the
NA/DP/USP coalition. In Parliament, DP Members, Sarah Wescott-Williams and Perry Geerlings, were very critical of the Prime Minister, the honorable William Marlin, and his government. Consequently, the DP stepped out of the coalition together with another member of the coalition and joined with the UP Party, to form a majority coalition of eight members of Parliament, the so called Magic Eight. On November 2nd 2017, the Magic Eight, made use of Article 33 of the Constitution and passed a motion of non-confidence in the government. That same day, Prime Minister Marlin tendered the resignations of his entire Cabinet to the Governor and simultaneously submitted a draft national decree to dissolve parliament.

One week later, November 10th 2017, the Magic Eight passed another motion discharging Prime Minister Marlin of his duties with immediate effect and resolving to install Acting Prime Minister Rafael Boasman as the new Prime Minister. Popularly speaking, parliament fired the Prime Minister twice and then requested the Acting Prime Minister, in whom, one week prior, they had no confidence, to become the new Prime Minister. What makes this matter even more ridiculous is that parliament has no authority to enforce their decision or motion to dismiss the Prime Minister or to appoint a new Acting Prime Minister. According to article 40 of the constitution, Prime Minister Marlin has to prepare his own dismissal decree as well as the appointment decree of the proposed Acting Prime Minister after which, he would then have to send these two documents to the Governor to be co-signed. You can imagine Prime Minister Marlin thinking “what chaos, they haven’t a clue of the power of the Prime Minister.”

Since 10-10-10, article 33 of the constitution has become a very controversial article. It states that “if a minister no longer has the confidence of Parliament, he SHALL resign. SHALL is the operative word and is subject to various interpretations. However, article 33 need not be controversial or disputable because the constitution allows for parliament to enact further rules to regulate this matter. Isn’t it strange that despite the regular contention caused by this article not one of the past parliaments or parliamentarians have done anything to ease the execution of this article! We surely love chaos!

If Prime Minister Marlin and his Cabinet had refused to resign then parliament had one big stick in reserve. According to the explanatory notes of article 33, if a minister refuses to resign “he will be acting beyond the rule of constitutional law”. This means that Parliament could then take the matter to court and eventually be able to evict that minister using the strong arm of the law. But is our Parliament up to this?

The motion of non-confidence triggered government to draft a national decree to dissolve parliament. It must be noted however, that the constitution does not oblige the government to dissolve parliament. Article 59 of the constitution reads “parliament MAY be dissolved by national decree”. The operative word here is MAY. Two years ago, then Member of Parliament, William Marlin, condemned Prime Minister Marcel Gumbs for dissolving Parliament but two years later he does the said same thing.

Furthermore, we did not have to be in this constitutional chaos because the Governor is not obliged to sign the dissolution decree. Seeing the damage done to the island and the resulting social circumstances he should have refused to sign it or he should have sent it to the Kingdom government for annulment according to article 21 of the Governor’s Regulation. Moreover, if he had consulted with the institutions involved in organizing and facilitating the elections, such as the Main Voting Bureau and the Post Office, he would have known that elections at this time was not a good choice. But no, the Governor upheld a bad government’s decision, seemingly motivated by politics and retaliation and signed it into law within 24 hours without considering the hurt and suffering of the people. The fact that ten days later the Prime Minister and the Governor modified their decision goes to show that it was not a carefully considered decision!

 

Wycliffe Smith
Leader of the Sint Maarten Christian Party

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