PHILIPSBURG--The Constitutional Court of St. Maarten in its public sitting on Friday rejected a petition filed by local resident Lisa Alexander to conduct a lawful assessment of the publication and entering into force of the National Decree of December 14, 2015, regarding the shifting of the date of general elections from February 9, to September 26. The Court said it holds no jurisdiction in this matter and also stated the petitioner has no right to bring this case.
In her petition which was filed on January 6, Alexander challenged the Decree in which the government of St. Maarten announced its decision to dissolve Parliament per October 31, 2016, and to have elections on September 26.
She wanted the Constitutional Court to instruct the William Marlin cabinet to continue preparations for the February 9 elections as per the initial National Decree of October 29, 2015, issued by the then Marcel Gumbs cabinet.
Alexander also recommended that Parliament be informed that it has been dissolved as of December 15, 2015, to take effect on March 14, 2016, and she also wanted 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 requested the Marlin Cabinet be declared a caretaker government as of December 15, 2015.
President decision
The Constitutional Court, however, stated in a so-called “Decision of the President” that in accordance with Section 127 of the Constitution of St. Maarten it is exclusively charged with assessing the compatibility with the Constitution of legal regulations which have been ratified but have not yet entered into force.
“This jurisdiction does not include all legal regulations, but is limited to assessing National Ordinances (with the exception of uniform National Ordinances), National Decrees containing general measures, ministerial regulations, and Ordinances by public bodies…and administrative bodies,” Court President Jacob “Bob” Wit explained in reading out a written statement.
“From this followed that the Constitutional Court has no jurisdiction to entertain a petition seeking to challenge the constitutionality of a regular National Decree…Although the National Decree under challenge is of a general character and the issue before the Court is of great general interest, it is not a National Decree containing general measures with the meaning of Section 81(h) of the Constitution. Such a National Decree would be one which contains rules that apply generally and are binding to all and sundry,” Judge Wit explained to Alexander, who was present at the Courthouse.
“I must further note that even if the National Decree could have been challenged, the Court could not have entertained the case as the National Decree has already entered into force. It is therefore crystal clear that the Constitutional Court has no jurisdiction to entertain this petition,” the Court President said.
“Beyond doubt”
It was also stated “beyond doubt” that the Constitution provides that a review can only be brought before the Constitutional Court through a written petition by the Ombudsman, and not, as was the case here, through a written petition by an individual citizen.
“It would appear from the Explanatory Note to the Constitution that it was never intended, given also the abstract nature of constitutional review ex ante [before the event - Ed.] and the possibly serious consequences resulting from this kind of review, to give individual citizens direct access to this Court,” it was explained to Alexander.
Instead, the Ombudsman, as an independent and impartial authority, was given a gatekeeper’s role. It is, therefore, exclusively by, or through, the Ombudsman that petitions for constitutional review must be brought before the Constitutional Court.
This, however, does not exclude the possibility that such petitions may be drafted and filed by individual citizens provided that they have been expressly authorized by the Ombudsman to do so and that the petition is filed on behalf of the Ombudsman, it was said.
As the petition in question has been filed within the constitutionally prescribed time limit of six weeks, the Court could in principle have instructed the registrar to forward Alexander’s petition to Ombudsman Nilda Arduin requesting her to consider taking over the petition, with or without amendments. But in this case, the Court said, this approach would have been improper given the fact that the Court has no jurisdiction to entertain the matter anyway.
The Court President also explained why a decision was made without any hearing. “In a matter as the present one, Section 19 (1) of the National Ordinance Constitutional Court provides that the President of the Court may, by reasoned decision, without any hearing before the Court being required, declare that the Constitutional Court has no jurisdiction to hear the case,” Wit said.
