10.10.10. 20
Sint Maarten’s First Decade as a
Constituent State of the Kingdom of the Netherlands
A Turbulent Constitutional Odyssey
Julio R. Romney
Sint Maarten Institute for Public Policy Studies
Abstract: A constituent state is an integral part of a larger sovereign nation and hold regional jurisdiction or local authority in the form of a local government, within the larger) sovereign nation. On 10.10.10, with the dissolution of the Netherlands Antilles Sint Maarten in its own right became a constituent state of the Kingdom of the Netherlands. A decade later, this constitutional odyssey could be best described as turbulent in nature. This white paper provides for a brief historical perspective on the constitutional constituent state odyssey of Sint Maarten, its constituent state preparedness and challenges and proposes a way forward.
Keywords: Constituent state, Kingdom, development administration, fiscal policy
Date of presentation: October 10, 2020
I. HISTORICAL PERSPECTIVE
The historical legacies of colonialism create some challenges for the constituent state construction in Sint Maarten. From this historical legacy, Sint Maarten was subjected to governing infrastructures and institutions (prototypes) of their colonial government (The Netherlands), with no regard for ethnicity. Here ethnicity implies much more than skin color and/ or characteristics, but the embodiment of a people’s customs, values, and historical traditions in building their own post-colonial governing administration. This historical legacy among other things reinforces a sense of national identity and interventionist action with respect to Development Administration
Sint Maarten’s constitutional relationship with the Netherlands began in 1815, as part of the West Indian Colonies. i.e., the Colony of Curacao and Dependencies, with the Dependencies comprising of Aruba, Bonaire, Sint Maarten, Saba and Sint Eustatius. This constitutional relationship changed in 1954, with the decolonization of the colony of Curacao and Dependencies. The decolonization of the colony of Curacao and Dependencies led to Sint Maarten becoming a Territory of the Netherlands Antilles which in turn was an integral part of the Kingdom of the Netherlands. In essence, a “composite state” was created, by the Netherlands, to be known as the Kingdom of the Netherlands, consisting of the Netherlands and its former colonies of Curacao and Dependencies and Suriname, governed by the Charter for the Kingdom of the Netherlands.
Under the provisions of the Charter, the former colonies were granted internal autonomy. Sint Maarten’s autonomy or administrative rule was specified in the Island Regulation of the Netherlands Antilles, within a federal governing structure. This condition remained so until tension arose within the constellation and mainly perceived by Aruba, and Sint Maarten that the Federal Government of the Netherlands was dominated by Curacao. Consequently, in 1986, Aruba seceded from the Netherlands Antilles and became a separate part/ constituent state of the Kingdom of the Netherlands.
By 1990 a similar constitutional arrangement (separate status) within the Kingdom was being considered for the remaining Territories of the Netherlands Antilles. To this end, the then, Kingdom Minister of Aruba and Antillean Affairs, Ernest Hirsh Ballin drafted a proposal in which the Territories of Curacao and Bonaire would form a constituent state of the Kingdom of the Netherlands, and Sint Maarten, Saba, and Sint Eustatius would form another. However, this proposal was met with mixed responses by all of the Territories and came to a “dead end”.
To best determine the preferred constitutional status a status referendum was held on each of the Territories with 4 options:
Option A: maintaining or remaining part of the Netherlands;
Option B: becoming a self-governing country within the Kingdom of the
Netherlands;
Option C: integrating into the Netherlands and
Option D: becoming an independent country.
A majority (59.6%) of the electorate of Sint Maarten voted for Sint Maarten remaining part of the Netherlands Antilles. The other Territories of the Netherlands Antilles also voted for “restructuring/ remaining part of the Netherlands Antilles”. As such, in 1993, a committee (Committee for the Restructuring of the Netherlands Antilles) was formed to study and come up with recommendations for a “restructured” Netherlands Antilles. After 40 plenary sessions across the remaining Territories of the Netherlands Antilles, a “Make it Work” report was prepared and presented to the Government of the Netherlands Antilles – with proposals for a sustainable restructured Netherlands Antilles, to be implemented. However, much like the draft proposal of Ernest Hirsh Ballin this too did not get far.
Consequently, in 2002 (June 12, 2002) Sint Maarten held another status referendum, and this time the results were in favor of becoming a country within the Kingdom of the Netherlands (69.9%). The other Territories of the Netherlands Antilles soon thereafter followed suit with another status referendum of their own, with Curacao also opting for an autonomous country within the Kingdom of the Netherlands (67.8%).
During a Round Table Conference, on November 26, 2005, the governments of the Netherlands and the Netherlands Antilles agreed to grant Sint Maarten and Curacao their referenda results of “autonomous country”/ “constituent state” of the Kingdom of the Netherlands. The transitional date for Sint Maarten (including Curacao) to become constituent states was scheduled for December 2008, however, this date turned out to be unattainable and a new date for October 10, 2010, was set. Article 55 of the Charter required any changes in the Charter (i.e., Sint Maarten becoming a constituent state) to be proceeded by an amendment to the Charter. Thus, said Kingdom Act amending the Charter of the Kingdom of the Netherlands was enacted (September 7, 2010); therein noting that:
“So … into consideration … Sint Maarten acquire the status of the constituent state of the Kingdom of the Netherlands … and it is, therefore, necessary to amend the Charter for the Kingdom of the Netherlands.”
“… Sint Maarten … have the capacity of the constituent state in the Kingdom.”
“The constituent state of the Netherlands Antilles has been dissolved.”
and
“The Kingdom Act shall enter into force on the day after the date of issue of the Official Gazette in which it is published.”
In addition, to the amendment of the Charter there were a number of Kingdom Acts rules and regulation initiated by the Kingdom as pre-requisites for Sint Maarten (including Curacao) becoming a constituent state. These included the following:
Financial Supervision of Public Finances
Committing to a Board for Financial Supervision/ College Financieel Toezict (Cft), composed of one member each from Sint Maarten, Curacao and the Netherlands. The purpose of the Financial Supervision Board is to supervise the financial activities and ensure Government produce balance budgets. (The Financial Supervision Board was intended to be temporary, however, is still in existence (and was extended for another 3 years early in 2019).
Joint Court of Justice
Maintaining the Joint Judiciary court system within the Kingdom of the Netherlands. There would be a Court of First Instance on Sint Maarten. The formation of a Joint Court of Justice of Aruba, Curacao and Bonaire, Sint Eustatius, and Saba – responsible for handling appeals in civil, criminal, and administrative matters. The Netherlands Supreme Court will remain the highest court of instance, in civil and criminal matters. (There have been expressed intentions between the Netherlands, Curacao, and Sint Maarten to keep procedural legislation as uniformed as possible.
Council for Law Enforcement
Forming part of an umbrella law enforcement organization that will supervise all aspects of law enforcement within the Kingdom, from the police to judicial authorities.
Legislative Framework
The Legislative framework or Legislation as applicable in the Netherlands Antilles will be adopted by Sint Maarten, as a constituent state. Further establishing that where there is a reference in legislation to the Netherlands Antilles it shall be replaced by a reference to the constituent state of Sint Maarten. As for the legal currency or with reference to the Antillean Guilder, in due time it shall be replaced by reference to the Dutch Caribbean Guilder, and that any other legislative amendments required to reflect the new constitutional status of a constituent state shall be implemented.
Financial Matters
There shall be a shared central bank between Sint Maarten and Curacao which shall be authorized to issue the official currency (The Dutch Caribbean Guilder), regulate all banks, provide financial services including economic development/ forecasting research and conduct monetary policy for both constituent states. (This replacement currency, the Dutch Caribbean Guilder, was expected to replace the Netherlands Antilles Guilder by 2012, which to-date has not been the case, and to be remained pegged to the US Dollar)
European Union
Sint Maarten will maintain its European Union status as an Overseas Country and Territory (OCT), with the exemption of not having to adhere to the vast majority of European Community Laws.
With the enactment of the Kingdom Act of September 7, 2010, amending the Charter for the kingdom of the Netherlands to dissolve the Netherlands Antilles, as well as Sint Maarten agreeing to adhere and/ or implement other stringent Kingdom Acts, the result was the legal existence of the constituent state of Sint Maarten in the Kingdom of the Netherlands. The illusive question remains, was the Territory of Sint Maarten adequately prepared for this new Constitutional Order of constituent state of the Kingdom of the Netherlands?
II. PREPAREDNESS
It should be emphasized that constituent state construction/ building does not happen automatically or without preparation, it is constructed by political leadership with a vision and resolve. In many ways, the “preparedness” for constituent state construction is an antecedent task (a precedent event to constituent state construction) and is in constant need of nurturing and re-invention.
Firstly it is about preparing or constructing the fundamentals under which this new constituent state edifice (governing structure) is accepted and ought to operate, which is provided for in the Charter for the Kingdom of the Netherlands, as amended by Kingdom Act (November 2010).
Secondly, it is also about building institutions which symbolize Sint Maarten – institutions such as effective political and administrative administration (bureaucracy) to facilitate democracy and good governance, educational institutions at the highest level promoting social progress and viable economic
Above all else, the preparedness of constituent state building is about reaching out to the population to foster unity, promote constituent statewide consciousness, that is, a sense of pride in being a national of Sint Maarten as an integral part of the Kingdom of the Netherlands.
Failure in the constituent-state preparedness process could result in the fragility of Sint Maarten as a constituent state (of the Kingdom of the Netherlands) with a strong focus on being truly a legitimate part of the Kingdom, a sense of belonging.
Taking the level of preparedness advanced by the indiscriminately falling of government (4 times) in the first decade (10years) of Sint Maarten as a constituent state of the Kingdom of the Netherlands, the experience can be best described as a turbulent odyssey. I suggest we should look for answers in the challenges posed by the environment for constituent state construction.
III. CHALLENGES BEFORE SINT MAARTEN’S
CONSTITUENT SATE CONSTRUCTION
In our quest for constituent state status in the Kingdom of the Netherlands, we have recorded some success such as local unity, in the face of many challenges, but these challenges continue to keep us from achieving our full potential. Challenges remaining include the following: (1) the challenge of our post-constituent state status political development; (2) fragility of the socio-economic development; (3) the challenge of national identity within the Kingdom; and (4) the challenge of legitimacy with the Kingdom of the Netherlands. We also need to evolve a system of leadership selection and accountability which produces the sort of leaders that will confront the challenges of the environment in a way that is beneficial to our constituent-state construction.
1. The challenge of political development
Since obtaining its new status as a constituent state of the Kingdom of the Netherlands, Sint Maarten has been facing the challenge of elected governments not being able to serve out its full elected term – political development crises – before falling due in part to where individual members of the ruling coalition party indiscriminately withdraw their support from the coalition, declare themselves as an independent member of Parliament, align themselves with the opposition party in Parliament thus causing the government to fall. This phenomenon has become affectionately known as “ship-jumping” and has largely contributed to or caused the government to fall and require new elections 4 times and 5 new governments in the last ten years. Under these conditions, the constituent state construction has suffered immensely as the people have lost all confidence in the system, the electoral process, and good governance, all elements needed for effective and sustainable constituent state construction. Sint Maarten needs electoral reform, the amending of the Election Ordinance (Article 95 thru 98) to bring about clarity and depth to the Ordinance, thus averting ship-jumping, ensuring integrity to the election process and government as well as standing to political development.
2. Fragility post-constituent state status economic development
An important aspect of constituent state construction is the building of institutional economic development capacity for the maintenance of the constituent state. This requires identifying strategies, programs, projects, and setting policy directions for economic growth to ensure the continued welfare of the population.
In Sint Maarten, however, post 10.10.10 the Island has been facing the challenges of deteriorating economic activity and growth. Consequently, it has seen its Moody’s rating downgraded from a Baa1 to a Baa3. Moody’s rating represents a nation’s credit rating and provides a measure of the country’s creditworthiness. A Baa3 rating indicates a high level of concern that the deteriorating economic conditions could hinder the Island’s ability to meet its financial obligations. Based on news reports, Sint Maarten could find itself in the precarious position of not being able to meet its financial obligations due to economic hardship and government revenues falling by some 25 percent. What’s telling about this is that after 10 years as a constituent state the Island has appeared only to have amassed 10 months of financial reserves.
On the grounds of both economic activity and growth, Sint Maarten needs to develop and implement a comprehensive economic revitalization plan. Unlocking the potential for economic growth through engaging in diverse economic development projects, leveraging public and private funding opportunities/ investments and government incentive programs are necessary parts of a strategic financial plan.
3. The challenge of national identity within the Kingdom
The historical legacy of colonial administrative rule has created some challenges to the constituent state construction of Sint Maarten. The colonial administrative rule has divided the constituent states of the Kingdom of the Netherlands into the European part and the Caribbean part, with no reference to unity during the decolonization process.
It is almost as if the constituent states are only held together by a shared Constitutional Agreement (The Charter for the Kingdom of the Netherlands), which apparently does not address the ethnicity or ethnic differences of the delineated parts that make up the Kingdom. The division did not take into account that maintaining a successful sovereign political unit of constituent states involve the building of a sense of “common share of purpose, working towards eradicating the divisions and injustices of the past, fostering unity and promote constituent sate wide identity and a conscious sense of being part of the sovereign political unit. Very importantly, the local identity, values and norms of the Caribbean parts of the Kingdom were and are not readily recognized within the European part of the Kingdom.
From this historical legacy national identity has been a major challenge to the constituent state construction of Sint Maarten. Consequently, there are those that see this historical legacy as an impassable stumbling block in constituent sate construction and therefore advocate full independence from the Kingdom. While this is a noble perspective, it needs to be recognized that today’s world order does not necessarily dictate independence, but rather the formation of economic blocks of which we are part of and/ or have some association with, those being two of the largest economic blocks. I.e., the European Union and the US - Mexico - Canada Agreement, formerly known as the North American Trade Agreement (NAFTA) / Caribbean Basin Initiative (CBI). Are we to give this up and swim the “world order” alone?
We also have to be mindful that less than half of the Island (the Southern half) would be independent and consider what our political association or non-association with other regional independent islands, will do for our sustainability as an independent island-nation. Further compounding the issue, given our small economy of scale with a one pillar economy and negative trade how are we to provide the population with needed goods and services? Equally important is our capacity to finance the expenses that come along with being an independent island-nation. These are not considerations of discouragement but rather considerations of political reality – the reality of independence.
If the answer to the challenge of national identity within the Kingdom is independence today’s focus should be on seriously addressing the questions and concerns that come along with independence, not the talking points of advocating independence. Alternatively, our efforts should be focused, collectively, on consciously building bonds between the European and Caribbean parts of the Kingdom through motivational programs and open public dialogue. While we should learn lessons from history, we must never see ourselves simply as victims of our history, but make it our responsibility to overcome the challenges posed by our history (to become an efficient and effective indigenous political entity.
4. The challenge of legitimacy within the Kingdom
In order to truly feel part of the Kingdom, political legitimacy is essential. This has become a major challenge of Sint Maarten's constituent state construction. The challenge here relates to the political authority of the Kingdom (government) to unilaterally enact national Kingdom laws that could have a profound effect locally without the direct input of Sint Maarten thus nullifying the role of Sint Maarten as an “equal partner” within the Kingdom.
In essence, this governing structure is decidedly anti-democratic as the constituent states, by statute, are subject to laws enacted by the Kingdom with no legislative vote in the governing body of the Kingdom/ The Kingdom Council of Ministers. When a matter of common interest arises the Council of Ministers of the Netherlands, aided by non-voting Minister(s) of Plenipotentiary of the other state(s), transforms itself into the Kingdom government. The law(s) passed here to become the law of the land. This lack in democratic governance undermines constituent state construction while being in discord with the Charter/ Statute for the Kingdom of the Netherlands which states that “common interests are to be carried out on the basis of equality”.
It is important to note here that with the dissolution of the Netherlands Antilles, on October 10, 2010, and the birth of the constituent state of Sint Maarten (and Curacao) the rare post-colonial opportunity to renegotiate this deficit in democratic governance should have presented itself. However, this opportunity seemed to have been missed as the marked deficit in democratic governance is still a fundamental part of the constituent states statutory agreement, as amended, and governs the Kingdom of the Netherlands.
Beyond the challenges of political development, the fragility of economic development, national identity within the kingdom, and the challenge of legitimacy within the Kingdom, there is the issue of “personal” or “personality politics”, with respect to elected leadership in confronting the challenges of constituent state-building. Personality politics is where the focus on electing political leadership is based on the personality of the person(s) contesting the election. Historically, in Sint Maarten, voters’ political choices have depended on their personal preference and less on the political ideology of the candidate. (Political ideology is virtually non-existent in Sint Maarten.) Political ideology ascertains the best practice of ideas, ideas, and approaches to policy issues thereby addressing challenges. In contrast personality politics has no coherent and/ or defined principles/ ideas, ideals, and approaches when dealing with policy issues. Sint Maarten has reached a point where personality politics cannot suffice in mapping out an efficient and effective social, political, and economic way forward.
IV. PROPOSED WAY FORWARD
Building a sense of belonging (legitimacy) and overcoming the challenges of constituent state building to overcoming the turbulence of the last decade – all require innovative steps, which bring about a different way forward approach:
- Building a true partnership with the other constituent states. Essential to constituent state building is building and interpersonal communication relationship among the states that would see the planning and establishing of formal structures and instruments to collectively address and show responsiveness to the concerns of the other states.
- Revenue imperative. An important aspect of constituent state construction is a reliable revenue stream, a sound economic base to foster economic growth/ economic activity to ensure the independent welfare of the population of the new constituent state. This has been and continues to be the fundamental challenge for Sint Maarten in its constituent state construction process. This is evident by the downgrading of its Moody’s rating over the past 10 years. There is also the current down-turn of the economy, caused by the Covid-19 pandemic. Based on the news reports we could find ourselves in the precarious position of not being able to adequately and independently meet our financial obligations and further provide needed goods and services to the population. To this end, we should immediately embark on seeking the advice of knowledgeable persons with experience in the subject matter in developing a Revitalization Plan for Sint Maarten. The plan should focus on creating a more conducive business environment, inclusive of increased economic opportunities/ activities and expanded investment and trade; developing and strengthening partnerships between the public and private sectors to promote local broad-based entrepreneurial growth, and, improving the responsiveness of public authorities to demand a more supportive business environment. There is also the need for government to adopt and implement a sound fiscal policy to guide and stabilize the economy. Equally, there should be an incorporation of an explicit budgeting approach to enhance the efficiency of government spending and a balanced budget. Acceptable budgeting approaches available include incremental budgeting, zero-base budgeting, and performance-based budgeting, to mention a few.
- Capacity building. The capacity building or development of capacity is paramount to the constituent state-building of Sint Maarten. It is the process of obtaining and improving the necessary skills, knowledge, tools, and resources needs for the sustainable building of Sint Maarten as a constituent state. There is also the need to engage in whatever is needed to be more efficient and effective, these include advancement in administration & governance; goods and services delivery; policies for sustainable social, political, and economic development. Capacity building is not a one-time effort but should be a continuous improvement strategy towards the creation of a sustainable and effective constituent state, with the focus on building the capacity of people and institutions.
- Building the local Sint Maarteners skill capacity should be a critical constituent state construction objective. Relying on the capacity of international consultant or non-committed persons to Sint Maarten, while the people of Sint Maarten remain disempowered is a risky approach. Such an approach leaves the constituent state of Sint Maarten weak and the position of turbulence will continue. However, it is important to remain open to outside capacity building approaches.
References
The Charter for the Kingdom of the Netherlands, December 5, 1954, as amended 2010
Hippler Jochen (2002). Ethnicity, State, and Nation-Building: Experiences, Politics, and Conceptualization Retrieved July 26, 2015, from http://www.jochenhippler.de/html/ethnicity-_and_nation-building.html
Pye, Lucian W. (1966). Aspects of Political Development. Boston: Little, Brown, and Company.
