PHILIPSBURG--The Constitutional Court convened Friday for a more than five-hour hearing regarding the case brought by the Ombudsman pertaining to the National Ordinance to establish the Integrity Chamber, which was filed August 21, 2015.
During her pleadings in front of the Constitutional Court’s three-judge panel to have the Ordinance quashed, Ombudsman Nilda Arduin stated integrity is a matter of the entire community.
While the National Ordinance to establish the Integrity Chamber ratified by government in August 2015 is geared towards investigating integrity breaches by those holding public functions, everybody is subject to cooperation with the Integrity Chamber in such investigations, the Ombudsman cautioned.
According to her, the Ordinance lacks adequate provisions to protect and safeguard the fundamental rights of the people. Her grievances were primarily aimed at the relation and entanglement of administrative and criminal law and the lack of protection of the fundamental rights of persons submitted to an investigation by the Integrity Chamber, “whether it being a party of interest, witness, expert, service provider, or whistle blower.”
“Ratifying a National Ordinance whereby everyone has the duty to cooperate with an integrity investigation, -whether one is neither aware nor involved with the matter at hand-, without any recourse or possibility to be heard by an independent judge on the measures to be taken against you, is certainly not the intention of the many recommendations provided in the various [integrity-Ed.] reports,” Arduin said.
Catch 22
The various reports regarding integrity violations on St. Maarten brought government in a “Catch 22” situation, or in a position “between the devil and the deep blue sea,” as Court President Jacob “Bob” Wit put it, in which government was confronted with rumours of integrity breaches and a lack of proven facts to enable active measures to be taken against the perpetrators.
The government concluded that St. Maarten needed to establish an independent “Champion of public integrity” equipped with adequate authority, expertise and maximum transparency to investigate integrity in public administration and advise government regarding laws and regulations to curb integrity breaches.
However, matters are not properly dealt with when integrity breaches are in fact criminal acts, the Ombudsman claimed. “The core of the matter regards the question whether administrative supervision/investigation by the Integrity Chamber infringes on essential guarantees for a fair procedure, including the right to defend oneself.”
Whereas the right to remain silent and the principle against self-incrimination are not observed in administrative law, questionable is how information provided under the obligation to cooperate with an investigation of the Chamber, and the threat to be fined or imprisoned, is dealt with, the Ombudsman wondered.
While everyone, including “public figures” under investigation have the right to remain silent and be protected against self-incrimination in a criminal case, third parties may suffer the consequences of an investigation while the person under investigation may go free, the Ombudsman warned.
Government, represented in this case by attorney-at-law Richard Gibson Jr. and Department Head General Legal Affair Maarten van Rooij, dismissed the arguments of the Ombudsman in this regard and argued that acts deemed punishable by Article 32 of the National Ordinance are only prosecutable by the Prosecutor’s Office.
Integrity Chamber investigations may lead to a binding advice to the Council of Ministers, which may be reviewed by an Administrative Court. The Integrity Chamber can also opt to report the matter to the Prosecutor’s Office.
Breaches of integrity may include criminal offenses, such as offering or accepting bribes, fraud or theft.
Citizens’ rights
It is the task of the Ombudsman provided for by the Constitution of St. Maarten to guard that the rights of the citizens are safeguarded in the process. Not only politicians or civil servants may find themselves involved with investigations by the Integrity Chamber, the Ombudsman said.
Among such investigations may be searches of offices and businesses, -house searches are only allowed with permission-, it is stated in the Ordinance. The investigations may also include temporary confiscation of computers to extract information.
At the core of the Ombudsman’s grievances is that the law does not include sufficient protection of citizens against the danger of random investigations and searches in gathering information to establish integrity breaches by those in authority.
The Constitution provides for the Constitutional Court to review the content and procedures followed in establishing new laws and regulations as of October 10, 2010. Most important in reviewing the content of new laws and regulations are the so-called classical and social fundamental rights as provided for in the first 30 articles of the Constitution.
The classical rights include freedoms and protection of citizens against infringements by government and social rights concern instructions to government to safeguard and protect the wellbeing of the people.
In this, the Ombudsman also referred to international law, in particular the European Treaty on Human Rights.
The Ombudsman was critical of the fact that the Council of Advice was not consulted on the replacement of a Supervisory Council by Supervisory Commission for internal review of Integrity Chamber activities, which in her view does not provide “the guarantees required by the Constitution to protect the fundamental rights of the people.”
She pointed out that “most countries, including Aruba” had made provisions in legislation to clearly distinguish between the administrative and criminal systems, and their respective authority.
Gibson said in his rebuttal that in light of the frequency of allegations of integrity breaches and the fact that infractions of this nature undermine good governance and the rule of law, government considers it necessary that the Ordinance enters into force as soon as possible. In this regard the Integrity Chamber has been given the authority to demand information and to review documents and make copies thereof, when deemed necessary. Each person is charged with the obligation to cooperate and give statements, in certain cases under oath.
In response to the Ombudsman’s opinion that Integrity Chamber investigations could cross or interfere with criminal investigations by legal authorities, government stated that investigations by the Integrity Chamber and the Prosecutor’s Office are two different and distinct investigations. However, Gibson admitted that these two separate investigations may at times complement one another but added that Integrity Chamber investigations do not include criminal offenses.
“The mere fact that investigation by the Integrity Chamber may lead to possible suspicion of criminal acts does not automatically entail that a criminal investigation will follow,” said Gibson.
Government also did not subscribe to the Ombudsman’s objections to the Integrity Chamber’s authority to issue fines, its right to enter localities without a warrant and the fact that the Ordinance does not submit the Chamber to supervision by the Judiciary, but only to a Supervisory Committee.
“In weighing the public interest in placing the Integrity Chamber in the position to conduct effective and efficient investigations against the individual interest of the legal protection that was provided in Article 31 of the previous draft, the government is of the opinion that the capacity to carry out effective and efficient investigations into integrity breaches must be given priority in this regard,” said Gibson.
“It should also not be forgotten that a citizen or legal entity have under all circumstances the possibility to approach the Civil Court judge if one is of the opinion that their rights and/or freedom has been breached,” the lawyer added.
Confused
Even though government said to be confident that the Ordinance in question “will provide the required tools to address the integrity issues that our community may be faced with whilst at the same time the rights and freedoms of the citizens and legal entities on St. Maarten will be recognized and respected and demanded by the Constitution,” the Constitutional Court’s Judges seemed to have their concerns.
Stating they were at times “confused” about the actual meaning and reasoning behind certain articles and stipulations in the Ordinance, the Court’s three judges posed many questions to government’s representatives in efforts to obtain clarity. At the end of the televised hearing, President Wit announced that the Court will present its decision March 4.
