The following is the presentation made during the Island Council Meeting on July 21st 2010 on the issue of the Constitution, by Member of the Island Council Of the Island Territory of St. Maarten, Mrs.Maria Buncamper-Molanus.
Island Council Meeting July 21, 2010
Maria Buncamper-Molanus
DP Faction
THE CONSTITUTION OF ST. MAARTEN
Allow me to start by expressing my appreciation to the people of St. Maarten for having granted me the privilege of being part of this milestone in the birth of a new country, our country, country St. Maarten. Think about it, not every generation experiences constitutional reform, let alone be part of the decision making process.
This milestone I speak of is most naturally the constitution of Country St. Maarten. When we speak of building foundations, there are very few as important as this. I must emphasize today that the Democratic Party faction in the Island Council of St. Maarten, albeit from the opposition benches have handled this essential document with the seriousness it deserves. And while the same cannot be said for the others in this council, I am honored to say that I am one proud democrat who has given the people the representation they deserve in the absence of Government properly involving the people of St. Maarten in building this foundation – the constitution.
The constitution of St. Maarten consists of 9 chapters and 130 articles and 7 more transitional articles, 36 pages including the cover.
Chapter I: The territory/area
Chapter2: Fundamental rights
Chapter 3: The Government and the minister plenipotentiary
Chapter 4: The Parliament
Chapter 5: Advisory Council, General Auditing Chamber, Ombudsman and other permanent advisory councils.
Chapter 6: Legislation and government
Chapter 7: Judiciary, Public Prosecution and Police
Chapter 8: Constitutional Court
Chapter 9: Final Provision
Additional Articles
Transitional applicable (Is)land regulations
Transitional draft regulations
Transition popular representation
Transition pending draft Federal Ordinances
Implementation New Penal Code
Initial appointment of members of the Constitutional Court
Transitional regulation suspension and dismissal political office holders
PREAMBLE/INTRODUCTION
The constitution is based on Christian Principals;
Exercising our universal right of self determination as expressed in the June 23 2000 referendum in which we freely choose for the status of country within the Dutch Kingdom;
Resolved to cooperate with each other, with our partners in the Kingdom of the Netherlands, with our neighbours in French St. Martin, and with all the people in the world based on freedom, equality, peaceful co-existence and international solidarity;
We declare that we are a people that believes in the fundamentals of democracy, sovereignty of law, the principals of the separation of powers, dignity and value of the individual, the right of all people for the fundamental rights and freedoms;
Resolved to continuously conserve nature and environment;
Declaring that we are desirous of establishing a constitutional status based on open and accessible government;
And therefore, to achieve these goals and beliefs the following provisions are legally applicable as the constitution of St. Maarten.
Chapter I: The territory/area
The Dutch side of St. Maarten as we now know it becomes Country St. Maarten, the official languages are Dutch and English and by ordinance the Flag, Crest and anthem will be established.
Chapter2:
1 Fundamental rights
Freedoms such as the right to life; no death penalty; no one may be subject to abuse or violence; inhumane or humiliating treatment or punishment.
Slavery is prohibited, human trafficking is prohibited.
The individuals’ personal information is protected and private and the use thereof is regulated by ordinance.
Permission for intrusion/to enter a home by the authorities without prior permission of the occupants is regulated by law. I will get back to this issue.
Content of communication by Letters, telephone and by any other modern means of communication used are secret and this cannot be violated except for those authorized by law to do so under the conditions whereby it is allowed by law (suspected criminals activities).
The right to practice religion and freedom of speech; There is no censorship on TV and radio programs.
Freedom to provide education under legally established rules of supervision by the government; every child has the right to general primary education; the right to gather/congregate.
Everyone has the right to freely move around and to establish within the parameters of the law.
The rights to peacefully enjoy your belongings/property.
2 Equality
Everyone on St. Maarten are treated equally under equal circumstances. Discrimination based on religion, philosophy of life, political beliefs, race, skin color, gender, language, national or social heritage, belonging to national minorities, wealth, birth, or based on any other grounds is not permissible.
Every Dutch national has equal rights to be appointed into public service.
3 Solidarity
The Government is responsible to protect the children and the youth and to promote the right to education, welfare, cultural development and recreation.
The government must continuously ensure that people can provide for their existence. And those who cannot must be provided for. Government must promote sufficient employment, protect workers and recognize the freedom of every Dutch citizen to choose employment.
The government is responsible to ensure that healthcare is available, housing, cultural development, recreation and to preserve cultural heritage.
The government is responsible for ensuring that the environment is livable and for the protection and improvement of the environment and welfare of animals.
4 Citizenship
Every Dutch citizen living/registered in St. Maarten has equal rights to be elected to public office, except for in the cases where this is prohibited by law.
Everyone has the right to submit written questions and government or parliament is obligated to reply in accordance with established regulatons.
Immigration: Admittance and expulsion are regulated by law.
Judiciary
Everyone has the right to due process, within a reasonable time and by an impartial judicial entity.
Everyone has the right to freedom. Detention, arrests, are regulated by law.
Anyone arrested or detained must be taken before a judge and must within a reasonable time either be tried or released during the trial.
Chapter 3: The Government and the minister plenipotentiary
1 The government: Formed by the King and ministers. The king is represented by the governor and the (7) ministers are accountable to the parliament. (It is not possible to be a member of parliament while being a minister.
Chapter 4: The Parliament
1 Composition
The parliament represents the entire population and it consists of 15 members and has a 4 year term. If the population exceeds 60 000 the it goes up to 17, over 70.000 it becomes 19 and 80 000 or more parliament will consist of 21 members.
Articles deserving of being highlighted are article 36 pertaining to the ministers and 50 pertaining to members of parliament. These articles regulate under which conditions a persons cannot be a minister or member of parliament.
1. A member of Parliament that has received an irrevocable sentence of:
a) Jail term of at least one year because of having committed a crime whereby the judge can impose an additional punishment such as depriving the member of parliament of his voting rights; Jail term as a result of committing a crime that damages the foundation of our constitution
b) Irrevocable jail sentence because of having committed a crime involving the political function such as accepting a bribe or fraud. The Executive Council in this very last draft of July 18th have included an exemption for Lt. Governors and Commissioners as they are irrelevant for country St. Maarten. As explained in the explanatory notes to the constitution.
The explanatory notes of the draft constitution continues to state that:
c) Irrevocable jail sentence because of having committed a crime in connection with article 46 of the penal code. This referrers to a "common" crime ( for which the consequences are applicable to everyone equally).
Persons holding political office have an exemplary function (voorbeeld funktie). Ministers and members of parliament should stay far away from criminal activities. In first instance if such does happen the politician should do the honorable thing and resign because this will cause great dissatisfaction by the population and damages the international image of the government or the parliament of St. Maarten. The judge however can impose an additional punishment depriving the guilty minister of Member of Parliament from the right to vote, but the accused politician will quickly argue that it is political victimization.
Transitional regulation regarding the suspension and dismissal of political officials. This article was added in the draft constitution after the debate started in the Central Committee, although it was not discussed during the meeting.
Article VII
The articles 36 and 50 are only applicable as it pertains to crimes committed after the Constitution of Country St. Maarten goes into effect. In other words, if we approve the constitution today any crime committed before the approval is not a ground or reason for not being able to participate in the upcoming elections for the first parliament of St. Maarten. Nor does it prevent a person who has committed a crime, or is under investigation or has been sentenced and or awaiting the outcome of an appeal from taking part in elections or assuming the position of a member of parliament or minister.
According to the explanatory notes to the draft constitution, article 36 and 50 have far reaching consequences for ministers and members of parliament. According to article 7 sub 2 of the European Treaty for the protection of Human Rights, further reaching or more severe punishment can be applied, than those that were applicable at the time the crime was committed.
Thank everyone who has in one way or the other made it possible to reach this far in this process of constitutional reform.
Questions:
1. Why was it deemed necessary to add this article to the constitution of Sint Maarten;
2. What will be the case/scenario if an official elected to serve in country SXM and already assumed his/her position is convicted for a crime that was committed prior to the enactment of this constitution? Will he/she be allowed to continue in his/her position?
Second Round:
3. What if the verdict of the Judge in the case mentioned above, includes a ban from holding political office for a X period of time. Would the official in question have to resign or be dismissed? Please clarify answer.
4. Will he/she have as an option to challenge this dismissal and is this the only option left for the convicted official to re-assume the position previously held.