Legal Perspective

Legal Perspective (815)

BES Island, St. Eustatius - The arrest of 4 minors on St. Eustatius, earlier this week was carried out carefully and according to the rules. The Public Prosecutor’s Office has read reports in which the opposite is claimed and even versions are given which are not in accordance with the truth.


It is common in the case of detentions in these types of cases that the suspects are first arrested by order of the Public Prosecutor and then the places and homes are searched for evidence. Think for example of stolen property, clothing or other attributes used in criminal offences and, for example, data carriers such as phones or cameras. Such a house search looking for evidence takes place under the responsibility of the investigating judge and at the request of the Public Prosecutor. That is, of course, the case in this matter.

The action of the police to arrests the suspects, prior to searching the homes, is legal and common. First, the suspect is taken away and then the property is carefully searched.

In the case where an investigation involves minor suspects, the procedures related to the entry of a house to arrest and for the house search; do not deviate from other cases. The procedures in this case were carried out correctly and as described under the responsibility of the investigating judge.

Of course, during the interrogation and detention the minority of the suspects was taken into account. That is what has happened in this case. The suspects, contrary to what was reported in the news, were not interrogated before they had their lawyer's assistance and the parents were also given the opportunity to be present during the interrogations; as prescribed. Naturally, not the whole family could be present.

Transferred to Bonaire

It was decided by the Public Prosecutor that two suspects would be transferred to Bonaire. That was obvious because the possibilities of detainingmultiple suspects during the interrogation and investigation on Statia are limited. For example, it is very difficult to prevent suspects who are locked up in adjoining cells from discussing what they will tell the police. As a result, the investigation is seriously hampered and it is difficult for the truth to come to light or not at all.

Of course, the parents of the young people who are transferred to Bonaire were informed. That was done by the Police Chief on Statia.

The young people were transferred to Bonaire under the guidance of police officers. Regular scheduled flights were not used for this.

As applies for all suspects, the reason for, the manner of the arrest and the detention of suspects for more than 6 hours, are controlled by the investigating judge. That has happened with all detained suspects on 29 October. The investigating judge has ruled that there are enough strong suspicions against all suspects for them to be detained. The investigating judge on Statia has also stated explicitly that there were no unnecessary violent arrests.


In the reports about the experiences of the family of the suspects it is reported that the families were not informed what evidence was found against the suspects. The Prosecutor understands that this situation brings uncertainty among parents who find it difficult to believe that their children may have been guilty of criminal offences and have questions about what is going on. But at this stage, the interest of the investigation comes first. And therefore the police and the Public Prosecutor's Office do not want not provide all information. That would mean that through the family and parents information may already become available to the suspects, which detectives would still need to use in the interrogations.

The aim of the investigation is to sketch a clear picture of who in which way is involved in which crimes. And that requires investigating techniques in the interrogations. At this stage looking for the truth weighs heavier than the needs of the parents to know exactly what evidence is collected against their children. That the crimes are cleared up is a general interest that weighs heavily for the victims, for the island and of course also for the suspects themselves. Good investigating is in everybody's interest.

Continuing investigation

Now the investigating judge has ruled that the arrest and the detention of longer than 6 hours are lawful, the investigation can be continued. Continually, a comparative assessment will be made if the investigation will require a longer detention; and whether there may be other reasons than the interest of the investigation to detain the minors longer. Those interests will continue to be carefully weighed against the interests of the suspects to be detained as short as possible. That last interest weighs heavily for prosecutors, but very heavy when it concerns minors.

At which time, longer detention is no longer necessary, cannot be said and may vary per suspect.

The Public Prosecutor’s Office concludes that this investigation has taken carefully executed taking into account all legal rules. The Public Prosecutor’s Office also realizes that arrests of minors raises many questions among their family and perhaps misunderstanding; but points out that also the independent investigating judge has deemed sufficient reason exists to proceed with these detentions.

As with all investigations, the results obtained are the fastest and most clear if the police is allowed to carry out the investigation focused, undisturbed and, where possible, with the cooperation of those involved.

PHILIPSBURG, St. Maarten - Political parties who are desirous of contesting the upcoming elections have been advised of their responsibilities by the electoral council of St. Maarten.

Chairman Attorney Bert Hoffman told our news room on Monday that new parties need to submit a written application to register the party with the Electoral Council.

He also gave an outline of the needed paperwork that has to accompany the documents which are to be submitted. The matter of the deadline for the registration of political parties is however not known.

This will become known when the date for postulation and elections are announced.

Chairman of the Electoral Council Attorney at Law Bert Hoffman also told our news room that he does not see any possibility for delaying the process which leads to new elections.

PHILIPSBURG, St. Maarten - Citizens are not adequately protected, stated former Minister of Justice, attorney Rolland Duncan.

According to Mr. Duncan, citizens should be allowed to protect themselves.

Whilst addressing that subject during the programme “Breakfast with de Robert” on Sunday, the former Minister specifically mentioned of a 1930 law, which he says is not against gun ownership.

More now via PodCast.

PHILIPSBURG, St. Maarten - The measures taken by the Police Force of St. Maarten following the killing of Officer Benjamin on Wednesday, August 5th has led to a decline in criminal activities in Philipsburg.

Whilst addressing that issue on Wednesday, Minister responsible for Justice, the Honorable Denis Richardson also spoke of the positive impact that the joint patrols in Philipsburg have been having. 

The Justice Minister who was at the time addressing the crime situation on the island at a press conference, also indicated that the police will continue to do their work in the most effective way that they possibly can.

It is against this back drop that the Minister stated that assistance is also being sought from the Ministers of Justice of Aruba and Curacao in getting additional officers from the two countries in an effort to efficiently deal with the crime situation.

More now via PodCast.

Harbour View, St. Maarten - Governor Holiday, having considered the political developments of September 30, 2015 involving:

  1. the current Council of Ministers losing its majority support in Parliament;
  2. the passing of a vote of no-confidence in Parliament against the current Council of Ministers;
  3. the subsequent decision of the Council of Ministers later the same day to call for new elections and dissolve Parliament;
  4. his consultations with all the parties involved; and
  5. the persistent opposing political positions and debate and associate legal concerns regarding the actions taken,

deemed it prudent to seek urgent independent advice regarding the constitutional conformity of the political positions. The issue before us is an issue of national importance for the current as well as the future governance of the interest of our people. It concerns the following fiercely contested positions:

  1. the constitutionality of the decision of the Council of Ministers not to make their positions available after a motion of no confidence;
  2. the right of the new majority in Parliament based on the constitution to form a government after a vote of no confidence was passed; and
  3. the right of the Council of Ministers based on the constitution to dissolve Parliament after a motion of no confidence was passed against it.

Decisions that address these issues touch the foundation of our Constitution and as such the interest of our people. No decision regarding the interest of the people should be taken lightly. The Governor therefore emphasizes that the decision to sign a Parliament dissolution national decree, on the one hand, or not to sign and sent it to the Kingdom Council of Ministers, on the other hand, as well as to request a formateur to form a new government should never be taken lightlyand even more so considering the potential implications of the developed situation for an orderly constitutional process.

It is the obligation of the Governor to safeguard an orderly constitutional process and thus to encourage all parties to act in keeping with the fundamental principles of our parliamentary democracy based on the rule of law. This obligation follows from the Regulations for the Governor as well as the oath taken by the Governor that he cannot execute, ratify, or mandate, a decision that is in violation with the laws of Sint Maarten.

Based on information gathered during consultations the risks of a disorderly process became evident. As a result the Governor met with and discussed the need to be prudent and to seek independent advice with the Prime-Minister, the leaders of the political parties in Parliament and the independent Members of Parliament on Friday October 16, 2015.Governor Holiday advised this path given that it is imperative to obtain clarity regarding the constitutional conformity of the political positions and to arrive at a balanced and sustainable solution to the differences of opinions. The Governor, based on those discussions and given the urgency requested a special panel of three judges to evaluate the constitutionality of the implementation of the political positions and advise him about it within 5 workings days. The panel consists of the President of the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba, Mr. E.J. Van der Poel, the President of the Constitutional Court of Sint Maarten, Mr. J.Th. Wit, and a judge serving on both courts recommended by the presidents of both Courts, Mr. J. de Boer. Based on the current situation the independent panel was requested to evaluate the Constitution of Sint Maarten in the context of Sint Maarten’s constitutional law and provide a clear legal position regarding articles 33 paragraph 2, article 40 paragraph 2 and article 59 of the Constitution of Sint Maarten. Specifically the panel was requested to answer the following constitutional questions:

a.   Is the (Council of) Minister(s) pursuant to article 33, paragraph 2, of the Constitution required to make their position(s) available when confronted with a motion of no-confidence passed by Parliament against it?

b.   If the answer to (a) is yes, when, at which moment or within what timeframe, is the (Council of) Minister(s) required to make their position(s) available?

c.   If the answer to (a) is yes, can (the Council of) Minister(s) make any reservations to the requirement to make their positions available? More specifically; can (the Council of) Minister(s) make this requirement dependent or contingent on another action?

d.   If the answer to (a) is yes and the (Council of) Minister(s) make their position(s) available, what is the legal status of the (Council of) Ministers(s) at this time? Can the Council of Ministers under these circumstances continue to (legally) govern the country?

e.   If the answer to (a) is yes, and the (Council of) Minister(s) do not make their positions available, are there any legal or constitutional impediments to forming a new government and, conclude this process by the dismissal of the Council of Ministers and the appointment of a new government in accordance with article 40 paragraph 2?

f.    If the answer to (a) is no, what, if any, effect does the motion of no-confidence by Parliament have on the ability to govern by the (Council of) Minister(s)? Does the motion of no-confidence by Parliament constrain the (Council of) Ministers in their decision making?

g.   Is the (Council of) Minister(s) pursuant to article 59 paragraph 1 of the Constitution authorized to call new elections and dissolve Parliament after a motion of no-confidence was passed by Parliament against it?

h.   Are there any legal or constitutional impediments to forming a new (interim) government after a national decree dissolving Parliament and calling for elections has been ratified?

i.    Can a national decree regulating the holding of elections and the dissolution of Parliament be changed, adjusted or withdrawn at a later date? Are there any legal impediments, in comparison to other national decrees, to doing so?

Today, October 21, 2015, the Governor received the requested advice of the judges and discussed and shared the content with the Prime-Minister and the leaders of the political parties in Parliament and the independent Members of Parliament that form the new majority. In view of transparency in the constitutional process a copy of the advice has also been provided to the media along with this press release. The key conclusions of the advice are:

  1. That the Council of Ministers when faced with a motion of no confidence based on article 33 paragraph 2 of the Constitution must make their positions availableas soon as possible and without reservation;
  2. That article 40 paragraph 2 of the Constitution, provides the basis, following the motion of no confidence, for the new majority in Parliament to form an interim government and dismiss the existing caretaker Council of Ministers;
  3. That the Governor is not obliged to sign a national decree based article 59, paragraph 1, of the Constitution provided by the caretaker Council of Ministers to dissolve Parliament and call for new elections, until they make their positions available in keeping with the Constitution; and
  4. That the task of the interim government would then be to, among others, prepare the new elections.

Having discussed the advice of the independent panel of judges with the Prime-Minister and the leaders of the new majority in Parliament the Governor wishes to confirm:

  1. That there is no basis not to form a new government and that he shall, should the new majority decide to do so as expressed, take steps to facilitate the formation of an interim government based on the new majority in Parliament;
  2. That he has repeated his call on the Council of Ministers to make their positions available;
  3. That he is repeating his call on the Council of Ministers in the interest of Sint Maarten to continue their duties by doing that which is necessary for the day to day operations of government until a decision has been taken concerning their resignation; and
  4. That once the Council of Ministers make their positions available he shall sign the national decree to call for new elections and dissolve Parliament once it is in compliance with the electoral laws.

In light of the political and constitutional debate of the past 3 weeks the Governor wishes to encourage all parties to study our Constitution and the panel’s advice carefully and reflect. We have a strong and balanced Constitution one that provides us with important democratic freedoms, rights, obligations and safeguards. With regard to the discussions concerning the authorities of Parliament and of the Council of Ministers, it is essential to note that in our dualistic system of government the authorities of both branches of government are separate and independent but limited by the rule of law. It is regrettable that both branches did not meet in Parliament and debate their respective positions. Over the past three weeks a lot has been said and written. Our People, Parliamentarians and Ministers have voiced their opinions. Emotions have ran high and at times certain harsh things were said which will call for us to heal as we move forward. As we do so, we should be reminded that for our parliamentary democracy to function effectively and protect our cherished freedoms and rights, we need people to serve as parliamentarians and ministers. In that regard the Governor wishes to reemphasize that political debate is a prerequisite for growth in any democracy. And the Governor stresses that it goes without saying that for growth to take place it is our obligation to conduct this debate based on facts, peacefully, with mutual respect for each other and the opinions of all sides and with due consideration of the laws governing Sint Maarten.

As already stated, it is not the role of the Governor to dictate the results of differences of political opinions but rather, as he has in the past three weeks, to work with and encourage parties to arrive at a constitutionally sustainable solution. Where there is significant disagreement between the parties in regard to the constitutionality of their actions, the Governor deems it his obligation to encourage parties to arrive at constitutionally sustainable solutionsin the interest of a stronger country. It is the Governor’s hope that this constitutional advice will serve to resolve this situation and functions as a guide for the handling of future political differences of this nature. Governor Holiday is herewith appealing to all stakeholders to do all that is necessary to maintain and protect the integrity of our constitutional democracy and to foster actions in accordance with our Constitution to safeguard our common cause: Sint Maarten.

PHILIPSBURG, St. Maarten - The system is not at fault as far as this perceived constitutional crisis is concerned stated Attorney and former Justice Minister Roland Duncan.

The Attorney at Law stated on Sunday that the resolution of the council of ministers which calls for fresh elections should be signed by the Governor according to the law.

He also stated that the vote of no confidence against the council of ministers by the Parliament of St. Maarten must also be honored and that the council of ministers should resign.

Duncan’s comments came on the PJD2 radio program “breakfast with the Robert”.

According to Duncan, if all the players follow the rules then we will mature, another indication that the system is not at fault but that the players are.

More now via PodCast.

PHILIPSBURG, St. Maarten - A young man in the district of St. Peters was arrested on Monday. The suspect has been charged with rape.

The arrest of the suspect was executed after the suspected victim filed charges against the suspect that was arrested on Monday.

Details on this case is not extensively known and reports on rape cases are not usually released. It is also not known just how prevalent the crime of rape is within our society.

Monday's arrest was conducted by the  Multi-Disciplinary Team (MDT).

This team was seen at various locations across the island Monday conducting controls.

On Tuesday the Police Spokesman Inspector Ricardo Henson, released a short statement on Monday's arrest which provides more insight into this case. His report can be viewed below.

On Monday October 19th, a young man suspected of rape has been arrested by police. This criminal act took place earlier this year. The suspect was arrested and released due to the lack of evidence. Due to the continuation of the investigation and new technical information that has come forth, the suspect was re-arrested. The suspect remains in custody for further investigation.

Control 2IMG 20151019 WA003

GREAT BAY, Sint Maarten (DCOMM) – A new Certificate of Conduct (Verklaring Omtrent het Gedrag, VOG) form (formerly Police Record) has been introduced on St. Maarten.

The new form requests additional information of the applicant, which will help to better facilitate the decision-making process with regard to the issuance of a Certificate of Conduct.

The new form, which went into effect September 19, 2015, has been sanctioned by the Minister of Justice, Dennis Richardson by means of a ministerial decree.

A “Certificate of Conduct” is required for various purposes including: employment, business licenses application, adoption, residency, foreign visa application, or school placement.

A petit committee consisting of representative of the Ministry of Justice, the Attorney General’s Office, the Public Service Center and ICT departments of Government has been charged with the redesign of the application process to ensure a smooth implementation.

Citizens requiring a “Certificate of Conduct” (Police Record) will soon have to apply for this document at Public Service Center Department in Simpson Bay.

This new approach, which includes an online component will help reduce lengthy processing delays experienced in the past and will accelerate the application process.

More information about the start date for the new application procedure will be provided to citizens in a subsequent release.

BES Islands - On Monday, October 19th the Dutch Caribbean Police Force (KPCN) has started a recruitment campaign for aspiring police officers. The Force is looking for candidates for the two-year training for police officer which starts soon. With the theme: “Do you have the guts? We have the job!” candidates were called upon to apply on Bonaire, St. Eustatius and Saba. On all three islands information sessions are going to be held

OnTuesday, October 27th there will be an information session at Jong Bonaire.

On the Windward Islands an information session will be held on Monday, October 26th at the Police Office on Saba and on Tuesday, October 27th at the Police Office on St. Eustatius. All three information sessions are from 6.30 PM to 8.30 PM.

Interested persons have till October 31st to react. KPCN hopes that, just like during the recruitment campaign in 2014, a lot of interested persons from Saba, St. Eustatius and Bonaire and the neighboring islands will react.

After October 31st a committee specially designated for this within KPCN, will start working on the letter selection. Afterwards the first interviews will take place.

With the candidates coming out of the first round of talks, various tests and examinations such as the sports test, the language test and the medical examination will then take place.

Applicants will receive notice within two weeks whether or not they have past the first selection round, the letter selection.

PHILIPSBURG, St. Maarten - This morning the court of first instance has handed down a decision in the case that the Harbour Holding had submitted an appeal against the building permit of Dock Maarten.

The court declares the Holding non-admissible, in essence because the appeal was submitted too late.

Click on the Judgement below in PDF format for download.

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