Citizen petitions constitutional court, wants February 9 election to go ahead

PHILIPSBURG--Local resident Lisa Alexander has petitioned the constitutional court to conduct a lawful assessment of the publication and entering into force of the National Decree of December 14, regarding the shifting of the date of elections from February 9, to September 26.

Alexander claims that there was a procedural error resulting in the Decree being in contravention of Article 89 of the Constitution.

In her petition, Alexander urges the Constitutional Court to instruct the William Marlin cabinet to continue preparations for the February 9 elections as per National Decree of October 29 (from the Marcel Gumbs Cabinet). She also recommended that Parliament be informed that it has been dissolved as of December 15, to take effect on March 14, and she also wants the Council of Ministers to tender their resignations immediately to the Governor for consideration, to be signed when the new Cabinet is installed.

Alexander also recommended that the Marlin Cabinet be declared a caretaker Government as of December 15, and wants the Electoral Council to be instructed to continue final preparations for February 9 election and that the Central Electoral Committee be instructed to finalise preparations for elections.

Alexander said despite the National Decree of December 14 being erroneously enforced, the impact of the actual and legal consequences of overturning it on the Election process would be very limited. “This is so because the general public, statutory bodies and political parties were acting under the National Decree… (of October 29) until December 15, 2015.”

In her petition dated January 6, Alexander said on October 28, 2015, the National Decree (LB-15/0951) was “enacted” by the Marcel Gumbs Cabinet in accordance with Article 59 of the Constitution, which states that parliament may be dissolved by national decree. The dissolution shall also require new elections to be held for Parliament which has been dissolved and the newly elected Parliament to meet within three months and that the dissolution shall take effect on the day on which the newly elected Parliament meets.

In that National Decree, it was stipulated that the dissolution of parliament was to take effect on Monday, March 14, 2016 and election for Members of Parliament (MPs) would take place on February 9. This national decree was to enter into force on December 15, 2015 and was to have been published in the National Gazette. The National Decree was published on October 30.

The National Decree of October 28 contained an error as it enumerated 47 days between the date set for the nomination of candidates and that of voting as the Election Ordinance Article 40 states: “The date of voting for the election of Members of Parliament shall be enacted by national decree on the proposal of the Minister of General Affairs, in such a manner that at least 48 days lie between the date of nominations and that of voting.”

To meet the requirements of the Election Ordinance the error had to be corrected, this was done and a new decision made on October 29, and with the correction made, maintained the same purpose, which related to the dissolution of Parliament.

The second decree stipulated that the dissolution of parliament will take effect on Monday, March 14, 2016, and election be held on February 9.

Alexander said, however, that the current government (the William Marlin Cabinet) proposed an amendment to the National Decree of October 29 suggesting that the dissolution shall take effect on October 31, 2016, and elections be held on September 26.

The National Decree was to have entered into force on the date of signing and would be published in the National Gazette. Alexander said contrary to this, Article 89 of the Constitution of St Maarten states the publication and entry into force of national ordinances shall be regulated by national ordinance. They shall not enter into force until they have been published.

“Additionally, from the Explanatory Memorandum to the National Ordinance publication entry into force…Pursuant to Article 89 of the Constitution, national ordinances do not enter into force before they have been published. This provision also applies to national decrees containing general measures, pursuant to Article 91 (4) and to ministerial regulations, pursuant to Article 91 (5). Finally, the provision regarding publication of orders enacted by public bodies or independent administrative authorities pursuant to the national ordinance, referred to in Articles 97 (2) and 98 (2) respectively applies before they enter into force.”

Alexander contends that the National Decree of October 29, and the National Decree of December 14, were subject to the procedural regulations of Article 89 of the Constitution.

She said because both National Decrees (October 29 and December 14) contained the same general measures, the National Decree of December 14, should have been published (made available to the public) on a date prior to midnight of December 15, 2015, before the National Decree of October 29 entered into force on this same date.

Alexander said the statement that the decree would enter into force on the date of signing and would be published in the National Gazette is being erroneously acted upon by Government, not taking into account the National Decree of December 14 was realized as a result of new decision making with a new decree number and was subject to Article 89 of the constitution as was previously done with the National Decree from October 29 in order to eefectively replace the one from October 28.

“This procedural error contravened the publication and entry into force regulation, Article 89 of the Constitution of Sint Maarten,” Alexander concluded. “This procedural error allowed National Decree (Landsbesluit) 29 October 2015 LB-15/0992 to enter into force “as is” i.e. as published in the National Gazette No 23 of 2 November 2015.”

 

 

 

The Honorable Judge Jacob Wit,

I, Lisa L. Alexander, a Dutch National (Exhibit 1) residing in Sint Maarten, hereby exercise my fundamental right to petition the relevant authority, according to the Constitution of Sint Maarten, Article 24 paragraph 1“Everyone shall have the right to submit petitions in writing to the competent authorities” and I clearly understand that the petition rights laid down in the first paragraph of Article 24 entails a guarantee that I can address written petitions to the competent authorities without restriction. The right encompasses the obligation of the competent authorities to view and process these petitions; setting petitions aside, unread, is in contravention of the Constitution of Sint Maarten.

The Constitutional Court is the competent authority according to Article 127 of the Constitution of Sint Maarten..

“1. There shall be a Constitutional Court.

2. The task of the Court is to assess the compatibility of a legal regulation that has been ratified but has not taken effect as referred to in Article 81(g), with the exception of uniform national ordinances, 81(h), 81(i) and 81(j), with the Constitution. Assessment shall not take place if the provision of the Constitution does not lend itself for assessment.

3. Legal proceedings may be instituted only through a written request from the Ombudsman on the grounds of incompatibility with the Constitution, filed within six weeks of the ratification of the legal regulation, referred to in paragraph 2, except in the case of an urgent interest. In the event of an urgent interest, the Ombudsman is not admissible. By or pursuant to national ordinance further rules shall be laid down on urgent interests. Parliament may not approve such a draft national ordinance, or resolve to propose it for endorsement, without a majority of at least two thirds of the votes cast by the serving members.

4. A legal regulation, referred to in paragraph 2 shall not take effect until at least six weeks after its ratification, unless there is an urgent interest, as referred to in paragraph 3. If the Ombudsman has instituted proceedings within this term, the regulation shall not come into force until two weeks after the decision of the Court.

5. If the Court finds that a legal regulation, referred to in paragraph 2 is not consistent with the Constitution, it may overturn the legal regulation. As a result, the legal regulation shall not take effect.

6. By national ordinance other tasks may be assigned to the Court..”

Whereas Article 127 paragraph 3 states “Legal proceedings may be instituted only through a written request from the Ombudsman on the grounds of incompatibility with the Constitution, filed within six weeks of the ratification of the legal regulation, referred to in paragraph 2”and whereas Article 78 paragraph 2 of the Constitution of Sint Maartenstates that “The Ombudsman shall investigate, on request or of his own accord, actions taken by administrative authorities of the Country and other administrative authorities designated by national ordinance”. Articles 127 paragraph 3 and 78 paragraph 2 are not applicable in this case as this petition relates to a national decree containing general measures that has entered

into force, therefore the Ombudsman’s authority to act has lapsed.

From that time on, according to the Constitution of Sint Maarten, Article 119, the ordinary courts can assess an underlying regulation in terms of the Constitution in the handling of a dispute……., furthermore, the Constitutional Court can also review the realization of statutory regulations as outlined in the Explanatory Memorandum to the Constitution of Sint Maarten.

The Constitutional Court can also assess the method of realization of a legal regulation in terms of the Constitution. This means that the Court is competent to decide on procedural errors.

COMPLAINT:

Procedural error on publication and entry into force ofNational Decree (Landsbesluit) 14 December 2015, LB-15/1110 in contravention of Article 89 of the Constitution of Sint Maarten

On 28 October 2015, the National Decree (Landsbesluit) 28 October 2015 LB-15/0951, (Exhibit 2), was enacted by the previous government (The Marcel Gumbs Cabinet) in accordance with Article 59 of the Constitution of Sint Maarten.

“1. Parliament may be dissolved by national decree.

2. An order for dissolution shall also require new elections to be held for Parliament which has `been dissolved and the newly elected Parliament to meet within three months.

3. The dissolution shall take effect on the day on which the newly elected Parliament meets.”

In that National decree it was required that:

The parliament of Sint Maarten would be dissolved according to Article 59 of the constitution of Sint Maarten. The dissolution shall take effect on Monday 14 March 2016.

The election to elect the Members of Parliament would take place on 09 February 2016

The Date for nomination of candidates for the election of Members of Parliament shall take place on Wednesday 23 December 2015.

The newly elected Members of Parliament shall take meet on Monday 14 March 2016 on a time set by the President of parliament.

This national decree shall enter into force on the 15 December 2015 and would be publish in the National Gazette (Landscourant)

The National Decree L.B.-15/0951 was published on 30 October 2015 No. 22 in the National Gazette (Landscourant).

However, the National Decree (Landsbesluit) 28 October 2015 LB-15/0951contained an error. It enumerated 47 days between the date set for the nomination of candidates and that of voting but according to the Election Ordinance Article 40: “The date of voting for the election of Members of Parliament shall be enacted by national decree on the proposal of the Minister of General Affairs, in such a manner that at least 48 days lie between the date of nominations and that of voting.” Thus, in order to meet the requirements of the Election Ordinance the error had to be corrected. Therefore, the body that enacted it made a new decision on 29 October 2015, which was National Decree (Landsbesluit) 29 October 2015 L.B. 15-0992(Exhibit 3) and with the correction made, maintained the same purpose, which related to the dissolution of Parliament.

In this National decree it was required that:

The parliament of Sint Maarten would be dissolved according to Article 59 of the constitution of Sint Maarten.

The dissolution shall take effect on Monday 14 March 2016.

The election to elect the Members of Parliament would take place on 09 February 2016

The Date for nomination of candidates for the election of Members of Parliament shall take place on Tuesday 22 December 2015.

The newly elected Members of Parliament shall take meet on Monday 14 March 2016 on a time set by the President of parliament.

This national decree shall enter into force on the 15 December 2015 and would be publish in the National Gazette (Landscourant)

The National Decree was published on 02 November 2015 (no.23) in the National Gazette

(Landscourant) as a special edition.

However, the current Government (the William Marlin Cabinet) proposed an amendment to National Decree (Landsbesluit) 29 October 2015 L.B. 15-0992.

Thus, National Decree (Landsbesluit) 14 December 2015 LB-15/1110 (Exhibit 4) enacted by the current Government of Sint Maarten (The William Marlin Cabinet) was intended to amend the contents of National Decree (Landsbesluit)29 October 2015LB-15/0992.

The National Decree (Landsbesluit) 14 December 2015, LB-15/1110 was enacted in accordance with the Constitution of Sint Maarten, Article 59 which states:

“1. Parliament may be dissolved by national decree.

2. An order for dissolution shall also require new elections to be held for Parliament, which has been dissolved, and the newly elected Parliament to meet within three months.

3. The dissolution shall take effect on the day on which the newly elected Parliament meets.”

A summary of the contents of the National Decree (Landsbesluit) 14 December 2015 LB-15/1110 is as follows:

The dissolution shall take effect on 31 October 2016

The Elections to elect the Members of Parliament will take place on 26 September 2016

The Date for nomination of candidates for the election of Members of Parliament shall take place on 08 August 2016

The newly elected Members of Parliament shall meet on Monday 31 October 2016 at a time set by the President of Parliament.

This national decree shall enter into force on the 15 December 2015 with the exception of article 1 to 4 that would enter into force on 01 August 2016.

The National Decree further stated “this national decree would enter into force on the date of signing and would be published in the National Gazette” but contrary to this statement, Article 89 of the Constitution of Sint Maarten states:

“The publication and entry into force of national ordinances shall be regulated by national ordinance. They shall not enter into force until they have been published..”

Additionally, from the Explanatory Memorandum to the National Ordinance publication entry into force…“Pursuant to Article 89 of the Constitution, national ordinances do not enter into force before they have been published. This provision also applies to national decrees containing general measures, pursuant to Article 91(4) and to ministerial regulations, pursuant to Article 91(5). Finally, the provision regarding publication of orders enacted by public bodies or independent administrative authorities pursuant to the national ordinance, referred to in Articles 97(2) and 98(2) respectively applies before they enter into force”.

Furthermore, according to the Constitution of Sint Maarten, Article 81, the legal regulations in force in Sint Maarten are:

a. the Charter for the Kingdom of the Netherlands;

b. agreements with other powers and international law organizations, to the extent that they have been ratified for Sint Maarten;

c. Kingdom Acts and Orders in Council for the Kingdom that are binding for Sint Maarten according to the Charter;

d. this Constitution;

e. mutual arrangements as referred to in Article 38(1) of the Charter for the Kingdom, to the extent that they have been assigned force of law by a competent body of Sint Maarten;

f. mutual arrangements as referred to in Article 38(2) of the Charter for the Kingdom;

g. national ordinances, including the uniform national ordinances;

h. national decrees, containing general measures;

i. ministerial regulations;

j. ordinances of public administrative bodies as referred to in Article 97(2), and independent administrative bodies, as referred to in Article 98(2).

According to Article 3 of the National Ordinance on Publication and Entry into Force, which is the National Ordinance to Article 89 of the Constitution of Sint Maarten, the publication of:

a. Kingdom Acts;

b. orders in council for the Kingdom;

c. mutual arrangements as referred to in Article 38(1) of the Charter for the Kingdom, to the extent that these are granted legal force by a competent body of Sint Maarten;

d. mutual arrangements as referred to in article 38(2) of the Charter for the Kingdom;

e. national ordinances, including the uniform national ordinances;

f. national decrees, containing general measures;

g. ministerial regulations;

h. orders of public bodies and independent administrative authority as referred to in Article 97(2), Article 98(2) of the Constitution respectively, occurs through placement in the Official Publication. Article 81 paragraph (h) of the Constitution specifies that national decrees containing general measures is a legal regulation and is subject to Article 89 of the Constitution of Sint Maarten.

Therefore, both National Decree (Landsbesluit) 29 October 2015 LB-15/0992 and National Decree (Landsbesluit) 14 December 2015 LB-15/1110 were subject to the procedural regulations of Article 89 of the Constitution.

Because both National Decree (Landsbesluit) 29 October 2015 LB-15/0992 and National Decree (Landsbesluit) 14 December 2015 LB-15/1110 contained the same general measures, National Decree (Landsbesluit) 14 December 2015 LB-15/1110 should have been published (made available to the public) on a date prior to 0:00 AM, 15 December 2015 before National Decree (Landsbesluit) 29 October 2015 LB-15/0992 entered into force on the 15 December 2015 which carried with it the dissolution of Parliament. The statement in the National Decree (Landsbesluit) 14 December 2015 LB-15/1110 “this national decree would enter into force on the date of signing and would be published in the National Gazette” is being erroneously acted upon by Government, not taking into account that the National Decree (Landsbesluit) 14 December 2015 LB-15/1110 was realized as a result of new decision making with a new LB number and was subject to Article 89 of the Constitution as was previously done with National Decree (Landsbesluit) 29 October 2015 LB-15/0992 in order to effectively replace National Decree (Landsbesluit) 28 October 2015 LB-15/0951. This procedural error contravened the publication and entry into force regulation, Article 89 of the Constitution of Sint Maarten.

According to Explanatory Memorandum to the National Ordinance publication and entry into force, “Article 3 regulates the manner of publication. Recording in the Official Publication constitutes the publication. This implies that the Official Publication must be generally accessible and that the date on which the publication becomes available to the public must be deemed to be the publication date. Obviously, a publication cannot be reversed. If an error is made in the preparation of an Official Publication, a correction sheet can be published. An error in the regulation itself must be corrected through new decision-making by the body that enacted the regulation. The layout, design, publication and the like of the Official Publication are regulated by national decree, containing general measures.”

The National Decree (Landsbesluit) 14 December 2015 LB-15/1110 is considered to be the result of a new decision making process by the Government of Sint Maarten and should have been published and made available to the public in a timely manner as a new Decree in order to enter into force and therefore is subject to Constitutional procedures and regulations and on publications and entry into force.

This procedural error allowed National Decree (Landsbesluit) 29 October 2015 LB-15/0992 to enter into force “as is” i.e. as published in the National Gazette No 23 of 2November 2015. Therefore, the accidental entry into force of National Decree (Landsbesluit) 29 October 2015 LB-15/0992 at 0:00 AM, 15 December 2015, under Article 59 of the Constitution of Sint Maarten, caused the dissolution of Parliament which takes effect on the 14 March 2016 and requires elections to be held on 9 February 2015. Failure to proceed with the requirements of National Decree (Landsbesluit) 29 October 2015 LB-15/0992 would be in violation of Article 59 of the Constitution of Sint Maarten.

Recommended actions

I am requesting that this honorable Court mandate the following actions:

1. That the Government of Sint Maarten (the William Marlin Cabinet) be instructed to continue preparations for the February 9^th elections as per National Decree (Landsbesluit) 29 October 2015 LB-15/0992

1. That Parliament be informed that it has been dissolved as of 15^th December 2015 (to take effect on 14^th March 2016) as per National Decree (Landsbesluit) 29 October 2015 LB-15/0992through a procedural error.

1. That the Council of Ministers having lost their majority support in the now dissolved Parliament, be instructed to tender their resignations immediately to the Governor for consideration (to be signed when the new Cabinet is installed) and also be declared to be a caretaker Government as of 15^th December 2015.

1. That the Electoral Council be instructed to continue final preparations for Elections to be held on 9^th February 2015

1. That the Central Electoral Committee be instructed to finalize preparations for Elections to be held on 9^th February 2015.

1. That the Central Electoral Committee be instructed to, invoke Article 23 of the Election Ordinance and have all political parties submit their list within 48 hours (National Decree (Landsbesluit) 14 December 2015 LB-15/1110was signed a mere 7 days before the submission of lists, all political parties would have finalized their lists by this time)

1. Despite the fact that National Decree (Landsbesluit) 14 December 2015 LB-15/1110has been erroneously enforced, the impact of the actual and legal consequences of overturning it on the Election process would be very limited. This is so because the general public, statutory bodies and political parties were acting under the National Decree (Landsbesluit) 29 October 2015 LB-15/0992 until 15 December 2015.

Closing Statement

Please take into consideration the fact that timing of the publication of regulations is of extreme importance. Please see attached National Decree 387 (Exhibit 5) dated 23^rd September 2010, clearly showing how timing played a major role in the dissolution of the Netherlands Antilles and the entry into force of this very Constitution of Sint Maarten, which now governs us and is currently being upheld as the highest law of the land.

I humbly submit that this Honorable Court, Guardians of the Constitution of country Sint Maarten, must allow me to execute my fundamental right to vote on 9 February 2015.

I, Lisa Alexander, AFFIRM that I acknowledge the guiding principles of Almighty God as the core of my values.

Sint Maarten, 6 January 2016

____________________________

Lisa L Alexander