July 17, 2020
I listened to two radio programs on which matters of our constitutional nature were discussed. I don’t claim to be a constitutional expert, however it is expected of me as a representative of the people to be knowledgeable of the Constitution of St. Maarten, the rules of order of parliament and the Kingdom Charter amongst others. Note the order in which I listed them, however fact is, the Kingdom Charter is a higher organ than the Constitution of St. Maarten. A statement was made by this person dubbed the constitutional expert that St. Maarten is free.
I emphatically disagree with that statement. We are not free. Indeed, they are correct in saying that the majority of the people voted to remain part of the Kingdom of the Netherlands in the June 23 2000 referendum. Prior to this in 1994 they voted to remain within the constellation of the Netherlands Antilles. Though I was not involved in politics until 3 years later, in my opinion the people voted to remain as part of the Kingdom of the Netherlands because the leaders of the respective parties were united on this option and as a matter of fact campaigned for this status. The person dubbed the constitutional expert began the discourse on one of the programs by reading the preamble of the Kingdom Charter of October 28 1954 and placed emphasis on the statement “of their own free will”, in other words the majority choose this status.
Again this is true. I however want to place emphasis on another phrase of the same preamble which says “On the grounds of equality”. And here is where the difference will be highlighted. Although equality is mentioned, the Dutch government highlighted in Article 3.1 what their competences are and that these cannot be changed by stating that, regardless of what is mentioned elsewhere in the charter, competences of the Kingdom are and it goes on to list what those are in the article with the letters a to h. The same article states in point 2. Other subjects can in a general discussion be declared competences of the Kingdom.
This means they can add more competences if they so desire. Article 55 is applicable in such a case. Article 55.1 states; The amendment of this charter is done by Kingdom Law. Point 2 says, a proposal to make an amendment by the Second Chamber will not be approved by the King before it is accepted by Aruba, Curacao and St. Maarten. This acceptance takes place by National Ordinance of (Aruba, Curacao and St. Maarten). Keep in mind that the Charter is a higher law than a national ordinance.
What is noticeable is that if the proposal deviates from the Constitution (Grondwet) to be exact the Dutch constitution which is a higher law than the Kingdom Charter and higher than the national ordinances of Aruba, Curacao and St. Maarten. This is not being free, this is legal abuse, because if the charter is in conflict with the Dutch Constitution in which we have no say, the Dutch Constitution will be the deciding document as it regards changes to the kingdom charter.
As to the issue of the “Entity”, What the Dutch government is also trying to do with this proposed entity is force governments to bind the elected representatives to an agreement without due process. Article 38.1 of the charter says the Netherlands, Aruba, Curacao and St. Maarten can make agreements amongst themselves. But here is the catch, in mutual deliberations it can be determined that such regulations and amendment of such can be determined by Kingdom Law or Kingdom General Measures.
Let us look at article 15 to 22 of the charter as it relates to the process or procedure to be used when establishing a Kingdom Law. The process is started similarly to that mentioned in article 55.1 the difference being that the Ministers Plenipotentiary of Aruba Curacao and St. Maarten are authorized to submit a proposal of its handling to the Second Chamber. The representatives of the country where this law will become applicable can before its handling in the Second Chamber investigate this and if such is needed, make a report before a to be determined time frame.
The Minister Plenipotentiary can attend verbal deliberations of the First and Second Chambers and give information to the chambers if he so desires. The Minister Plenipotentiary can request one or more extraordinary delegates who are also authorized to attend the verbal meetings and give information. They are not liable for what they say or present in writing in the meetings of the First and Second Chamber. They can propose changes to the draft.
Article 38a says, the countries can among themselves make regulations/provisions to handle internal disputes. But the Kingdom council of Ministers decided unilaterally to shelve the different proposals for a dispute regulation for 3 years, is this being free? We talk about these charters and constitutions. My conclusion is that and I share the statement made with the young man who acted in the movie called “The Great Debaters” said “An Unjust Law is No Law at all.
George Pantophlet
Member of Parliament
