TUESDAY, 31 DECEMBER 2013 15:03
Team Ombudsman: Guarding the Constitution
PHILIPSBURG–In a democratic state people delegate their authority to elected representatives, but the basic rights and freedoms of the citizens are safeguarded by laws and institutions that provide the necessary checks and balances. In 2013 the Ombudsman Bureau headed by Nilda Arduin made history in that sense by presenting to the Constitutional Court for its judgement several political decisions that were deemed to be in contravention of the Constitution.
St. Maarten is also the only country in the Dutch Kingdom to have established such a court, which enabled the filing of a first-ever constitutional case in January, with a hearing on July 2 that was followed by a milestone verdict on November 7. These events are particularly noteworthy in light of the past year’s discussion on integrity within the local public administration.
The case concerned adjustments made by Parliament to the new draft Penal Code which appeared to infringe on stipulations in the nation’s basic organic law but, in some cases, also on international treaties signed by the Kingdom of the Netherlands and thus applicable on the island as well.
Four of the Ombudsman’s seven complaints were considered well-founded. Two regarded technicalities, but two led to annulments.
The court found sentencing a convict to life without a mandatory review every five years after serving 20 years was unacceptable, a view strengthened by a ruling from the European Court of Human Rights (ECHR) around the same time.
Because that requirement had been removed from the Penal Code passed in Philipsburg and government was not willing to entertain a pardon in such cases, the court struck down several provisions for life-sentencing.
An earlier-than-normal release by the Justice Minister of undocumented immigrants who had been sentenced to less than five years in prison, on the condition they leave the island, was considered unconstitutional because it favours them over residents, is arbitrary and violates the principle of equal treatment.
The latter also applies to illegal aliens with longer sentences not qualifying for the usual conditional release after serving two-thirds of their terms. Both provisions were struck down.
Regarding increasing the maximum penalty for theft if the victim is a visitor, the court did not see an equality issue and considered the need to protect the tourism economy a valid argument. Nevertheless, it said this should be limited to simple theft, not robbery or burglary.
Animal activists may have been a bit disappointed with the ruling on organised cockfighting, because creating that possibility in itself was not considered to be in direct violation of the Constitution. However, a great deal would depend on permit conditions and until legislation for such is in place the practice will remain an offence.
Finally, former minister Roland Duncan’s idea to legalize prostitution also was not found to be against the Constitution. As the practice already is tolerated, a permit system may help to better regulate and control the local adult clubs.
The Ombudsman is more than the guardian of the Constitution. It is also where people who feel wronged by government and its entities can seek recourse.
A total of 52 complaints were filed in 2013 up to November 1, most regarding the Ministries of General Affairs and of Justice. The Ministry of Health, Labour and Social Affairs was down to just two complaints during that period after a total of 14 for all of 2012.
The Ministry of Public Housing, Spatial Planning and Environment also saw a reduction from 21 in 2012 to 10 for the first 10 months of 2013, and the Ministry of Tourism, Economic Affairs, Transport and Telecommunications from nine to five.
Judging by latter, the Ombudsman seems to be succeeding in having government address complaints and, consequently, prevent more. To further put the figures into perspective, the number of complaints in the previous year had grown from 119 between April and September 2011 to 137 during the same period in 2012.
There is always room for improvement, however. The bureau has announced “stepping up its game” next year. Its intentions include a massive awareness campaign, a survey, a sounding board and better information-window service, in line with the bureau’s Strategic Plan 2011-2021.
All in all, the Ombudsman has proven to be a valuable safeguard and watchdog in 2013 for the people of St. Maarten, including its future generations. For that reason, Team Ombudsman is The Daily Herald’s undisputed Person of the Year.
Source: The Daily Herald of December 31 2013