The Ombudsman not referring any laws to the Constitutional Court (see Thursday newspaper) last year may lead some to question the latter’s need. After all, St. Maarten is so far the only country in the Dutch Kingdom with such an institution.
However, it serves as an important tool in upholding the Constitution, regardless of who is in political power. As a matter of fact, both Aruba and Curaçao expressed an interest in joining in the past.
The court has made several rulings that uphold fundamental rights including free speech and peaceful assembly, affirming that government prohibiting a public demonstration violated these.
Another recent ruling affirmed the Governor's constitutional authority in relation to a matter involving the Chief of Staff at the Ministry of VSA. The court concluded that while the Prime Minister (General Affairs) had authority to impose an initial order measure, the power to suspend the official rested with the Governor and not with the Prime Minister acting alone.
On November 1, 2021, the court did not support a request filed by the Ombudsman concerning three temporary national ordinances to cut the employment benefits of civil servants, (semi) public sector workers and political authorities due to the COVID-19 crisis.
In a 2013 challenge to the then proposed new Penal Code, it said the draft did not provide any provision for parole for people convicted for life and government explained that also no informal parole system existed. The court found such a penalty without a "possibility for review" and "prospect of release" inhuman in line with European Court of Human Rights (ECHR) case law.
These are just a few examples, but they would seem to prove the court’s right of existence. There is obviously a significant cost involved, but checks and balances that effectively help guarantee the rule of law usually don’t come cheap.
