Recently, we represented an employer during a summary proceeding initiated by an employee. In the court decision, the court included a comment in the footnote that inspired me to write this article. During the summary proceeding we argued that in the context of the case, everybody should know the law. The court responded in the footnote of its decision that this rule is not present in any legal code, and moreover this rule in not from this time. My first feeling after reading the court decision was, that I clearly remember having learned this at the university. Nevertheless, it prompted me to think about the significance of the above for the Sint Maarten legal system.
This rule is derived from an expression of Aristoteles in Latin: “nemo censetur ignorare legem”. Which means: “nobody is thought to be ignorant of the law”. This rule is used as a general adage in our legal system. The translation should already inform you that this is fiction. Even lawyers cannot know all the law.
Sint Maarten is a “rechtsstaat”. With that is meant that the powers of government are limited in the law to protect the rights of the people. In a rechtsstaat, the adage that nobody is thought to be ignorant of the law can be accepted if the people are informed of the laws of the country. According to article 89 of the Constitution of Sint Maarten, laws must be publicised before they can take effect. Sint Maarten complies with this obligation by publicising new laws in the National Gazette.
Legal language as contained in publicised legislature, is difficult to decipher for someone without legal knowledge. In Sint Maarten it is more difficult to understand legislature as the primary language of most citizens is English. Furthermore, the legal rules are also derived from caselaw, which is also in Dutch.
That implies that for a lot of people in Sint Maarten it is impossible to know the law. Can we then continue to live with the fictionalised rule that nobody is ignorant of the law? I am afraid that we have no other choice. It would be chaos if everybody could defend their lack of compliance with the law, with the fact that they had no knowledge of the law.
Regularly I represent clients in court cases, that if the persons involved would have just adhered to simple laws, it would have not escalated to a court case. It is my opinion, that the lack of easy access to information regarding their rights and obligations, make people adopt the attitude that Sint Maarten is a lawless country. Sometimes I even encounter persons that created their own applicable legal rules.
Clients sometimes feel helpless because they must participate in a legal procedure of which they do not understand the rules, sometimes not because it is too difficult to understand, but because it is in a language they do not understand. This is even more striking, because having their day in court should give clients the satisfaction of being heard. It is also remarkable, because the courts are making efforts to explain their decision in a language a normal person should be able to understand. But again, it is in Dutch.
With this article I am not necessarily arguing to have the language of our legal system changed, as that would be extremely difficult. But it is the task of the government of a country to keep its citizens informed, regarding their responsibilities and rights, in a language that is understandable for the citizen. I did not do a scientific research on this, but logic dictates that the first step to have citizens adhere to law, is to create knowledge of the law that these citizens must adhere to.
The government has made a significant effort to keep us informed regarding coronavirus COVID-19. The knowledge accumulated doing this should not go to waste when this crisis has passed. It should be used not only to inform citizens during times of crisis, but also to inform citizens of the laws that may affect their daily life.
For those wondering, the footnote in the court decision did not have major ramifications for the outcome of the case.