Philipsburg: --- The island council of St. Maarten approved the draft Kingdom Laws which has to go to parliament for its establishment. The five laws approved unanimously are the Kingdom Law on the joint court of Justice, Financial Supervision of the countries Curacao and St. Maarten, the Kingdom Law on the Public Prosecution System of Curacao, St. Maarten and the BES islands. The Kingdom Law on the Police of Curacao and St. Maarten, and the BES islands as well as the council for the maintenance of Justice.
Following is the presentation given by leader of government and commissioner constitutional affairs William Marlin prior to the voting of the laws.
The word consensus means here that, given the Political Declaration of the 12th of November 2007, agreement must exist and be maintained between Curacao, St. Maarten and the Netherlands during the whole process of establishing of these laws.
This has proven to be a major challenge, with negotiations taking place up to late yesterday afternoon.. Never before in the history of the Kingdom have so many matters that reside with the authority of the countries within the Kingdom been regulated by Kingdom laws.
As we have experienced and probably will experience in the future the potential for conflict in the development, adaptation and application of these laws have been and are great.
That is why I will start out by stating that it is a pity that the Kingdom law on the changes to the Charter of the Kingdom of the Netherlands is not one of the laws that we are dealing with today. This Kingdom law presently is before the Council of State of the Kingdom for advice. Two main reasons to justify that concern:
1. The first being that in that law proposals have been included with the intention of creating the possibility of resolving conflicts between the governments of the Kingdom in an independent and more equitable fashion than is presently possible within the system of the Charter and;
2. Secondly and of even greater importance to us is because in that law the new statuses of the islands are established.
Let it therefore be known and clear, that - as the government of the Netherlands has frequently declared - the government of St. Maarten considers also as one package the content of these five Kingdom laws and the Kingdom law on changes to the Charter in which St. Maarten is declared a Country within the Kingdom.
The approval of these 5 laws is therefore as far as St. Maarten is concerned subjected to the unconditional establishing of St. Maarten as a country within the Kingdom!
A. Joint Court of Justice.
The consensus Kingdom Law on the Joint Court of Justice gives considerable credence to the division of powers – legislative, executive, judiciary - within the countries and the acknowledgement of autonomy of the courts to manage its own affairs. The establishing of the court as a legal, corporate entity is unique within the Kingdom and allows for self management without undue interference from the Executive Branch of government in the daily operations of the court. The law contains notwithstanding that measures that ensure accountability through an independent Management Council in which each country will have a representative that will function as a buffer between government and judiciary. Service level agreements with the Joint Court of Justice will allow the countries to influence the quality of service rendered to their communities. The court will be jointly financed on a user based system that is presently being developed and will be presented to this Island Council for approval in the near future. As is presently the case the judges will be appointed by Royal Decree for life and are retired at age 65. The Court Registrars and staff will be appointed by the Management Council. In each country there will be a Court of First Instance and a local Court Registrar and staff.
The Aruba issue
The draft consensus Kingdom Law is in its present form applicable to Aruba. However Aruba has not given its consent to this law. Aruba has consistently stated that as long as the constitutional changes of the Netherlands Antilles and for the islands do not have any consequences for that country it will honor the right of self determination of the islands. As far as the Joint Court of Justice is concerned Aruba has stated that if the seat of the court is not established in Aruba, Aruba prefers to regulate an autonomous Court in First Instance and court registrar in Aruba separate from that of the proposed entity in the present draft law for the Joint Court of Justice, but with a cooperation arrangement for the appeals court.
The Netherlands objects to this solution and as a result a proposal is incorporated in the draft consensus law to impose the system developed by Curacao, St. Maarten and the Netherlands on Aruba using article 43, sub two in conjunction with article 14 of the Charter of the Kingdom. Curacao, the government of the Netherlands Antilles but in particular St. Maarten have objected strenuously to the application of these articles of the Charter as there is no legal basis to do so based on the Charter and is not the correct way to resolve conflicts between the governments of the Kingdom, certainly not in cases where it concerns the legitimate authority over a task and responsibility of that country. It would constitute and unheard of and unacceptable precedent of the use of the Charter that could later be used against the vital interests of St. Maarten and/of Curacao for that matter.
The inclusion of the propose measure on Aruba also tarnishes the relationship between that country and new emerging countries of Curacao and St. Maarten and could very well induce Aruba to object to proposed changes to the Charter of Kingdom, thereby effectively blocking the establishing of the country status. Furthermore the Council of State of the Kingdom is of the opinion that the Kingdom law should be based solely on article 38, sub two, of the Charter (consensus laws).
It is with these considerations in mind that the Executive Council presents you with amendments to its original proposal with the clear intention of taking a solid stand against the proposed application of article 43, sub two in conjunction with article 14 of the Charter in the issue with Aruba. St. Maarten is furthermore pursuing arrangements with the government of the Netherlands Antilles, Curacao and if possible with the Netherlands to prevent and or curtail the in our opinion unconstitutional use of the Charter of the Kingdom in this way.
B. Financial Supervision of the countries Curacao and St. Maarten.
This consensus Kingdom law has been handled in a previous meeting of the Island Council and it concerns the continuation of financial supervision in a (slightly) different form that the present regulation in the General Kingdom Measure on Financial Supervision.
The Island and Executive Council at that time requested that the Council of State of Kingdom be asked to advice on the setting up of an independent system of appeals in the event of conflicts between the respective governments in the Kingdom by the execution and application of the consensus kingdom laws. In particular St. Maarten was a proponent that de Council of State become the institution to independently decide as the present setup calls for a decision of the Kingdom Council of Ministers in which the government of the Netherlands plays a predominant role.
The Council of State is however of the opinion that the system of the Charter does not allow for the Council of State to play such a role and advises to maintain the procedure and method of conflict resolution that is in the present Kingdom Council Measure and has been taken over in the Kingdom Law on Financial Supervision. The Council of State plays a crucial role in the decision making process and the possibility for the Kingdom Council of Ministers to deviate from an advice of the Council of State is severely limited.
With this in mind and in view of the fact that the Kingdom Law on changes to the Charter of the Kingdom will provide in the possibility of establishing an independent conflict resolution system, we propose to accept the consensus kingdom law as proposed.
Attention is drawn to the fact that this law includes procedures and criteria in article 33 for the termination of the financial supervision.
C. Public Prosecutor System.
This consensus Kingdom law was also debated on the floor of the Island Council in a previous meeting. At that time the main issues concerned the authority of the Minister of Justice of the Netherlands to - as a member of the Kingdom Council of Ministers - give instructions to the joint Attorney General of the countries Curacao and St. Maarten.
The Council of State of the Kingdom gave a scathing judgment on the proposals included in the draft law on the insistence and demand of the government of the Netherlands and that were consistently contended by Curacao, the government of the Netherlands Antilles and St. Maarten.
Subsequently political agreement was reached in the Political Steering Group for Constitutional reform, whereby the instruction authority of the Minister of Justice of the Netherlands was rescinded. To ensure due process of law and maintain appropriate application of the rule of law the authority of the Ministers of Justice of the countries will have to seek the blessing of the Joint Court of Justice for their intentions to give instructions to the Attorney General in specific cases. It is customary that ministers maintain a proper distance and exercise great restraint when it comes to intervention in specific cases.
For St. Maarten is also important that agreement was also reached on the – very likely possibility – of appointment of a Solicitor General stationed on St. Maarten who will be able to substitute for the Attorney General who will be stationed on Curacao.
D. Police.
This consensus Kingdom regulates the system police forces in the countries Curacao and St. Maarten and for the public entities of Bonaire, St. Eustatius and Saba.
The following aspects are the essence of the Kingdom Law:
- St. Maarten and Curacao will each have its own police force
- Bonaire, St. Eustatius and Saba will have one joint police force
- That all tasks that police forces normally have, these police forces are charged with
- In all of the countries the police corps will operate under the authority of the proper authorities, which means under the Minister of Justice as far as St. Maarten and Curacao are concerned
- Several arrangements have been made to ensure cooperation between the police corps and adequate planning and joint operations for the combating of several forms of serious organized and international crime. These tie into similar arrangements in the law on the public prosecutor system. The so called Joint Services will play an important role in the securing and allocation of resources for/to the police corps for the execution of these tasks.
In the meantime the in the final statement agreed upon trajectory for the improvement of the police corps is in full swing.
E. Council for the maintenance of Justice.
The Council for the maintenance of Justice is a crucial inspection institution and forms one of the cornerstones in the justice system that is being set up.
The tasks of the Council are to carry out general inspections of all institutions in the justice chain with the exception of the Joint Court of Justice. Important organizations that will be subjected to inspections by the Council are the police, the training of the police, the public prosecutor system, prison institutions, court of guardianship, probation institutions, etc.
The inspection task will cover the effectiveness, quality of the execution of the tasks and the management. Furthermore the Council will be charged with the general inspection of the cooperation on justice between the countries.
The countries can charge the Council with the task of advising over complaints by citizens over institutions subjected to its inspection task. It can also be charged with the supervision of the processing of police data/information.
In this way independent check and balances are built into the justice chain that will stimulate adequate performance and also through proactive measures ensure that the countries comply with international treaties (example: on the prevention of torture and such) and standards.
Through the above mentioned laws and executive measures that are presently being drafted and finalized, the completion of the process on the constitution for the country St. Maarten and the organic laws, St. Maarten will have nearly completely complied with the agreements made in de final statement of the 2nd of November 2006. The loyal compliance with the agreements of the final statement, the substantial role that St. Maarten has played in achieving these results and the guarantees that are built into the systems should way lay all the fears that have been expressed over the capability for St. Maarten to become a country.
The actual setting up of additional government organizations to carry out the tasks of country St. Maarten in accordance with the developed plans will soon be in full swing. The agreements made with the government of the Netherlands Antilles and with that of the Netherlands should greatly facilitate the timely development of those government organizations within the period available until the date of transition to the status of country.