Philipsburg, July 8, 2015; The Ombudsman, Dr. Nilda Arduin, considers the verdict of June 26, 2015 pronounced by the Court in Willemstad in the case of the Minister Plenipotentiary of Curaçao against the Ombudsman important for not only Sint Maarten, but for the entire Kingdom of the Netherlands.
Position of the Ombudsman
Dr. Arduin concludes that the verdict clarifies and established basic principles regarding the position of the Ombudsman and the authority of the institution. She compared the importance of the verdict to the decision of the Constitutional Court of Sint Maarten in November 2013, establishing the boundaries and principles regarding constitutional review.
The Court in Willemstad considered Wiels’ claim filed against the ombudsman inadmissible. The ombudsman is a body of the Country, so that the claims should be filed against the Country. The Court ruled that the institute of the ombudsman is an important instrument for legal protection of citizens against the government, and to promote proper government in general by the government itself. The ombudsman is appointed by Parliament, with a view to safeguarding her autonomous functioning. As High Council of State, she must assess with authority whether and when any behavior of administrative bodies is improper. In doing so, the ombudsman enjoys a high degree of discretion. The courts should therefore proceed with great restraint in reviewing the ombudsman’s actions.
Disclosure of Informants
Wiels demanded among others that the Court rule: that the names of the informants whose statements are part of the investigation file of the Ombudsman regarding the Minister, must be disclosed to her; that she must be allowed to examine these informants or cause them to be examined, whether or not under oath; that the ombudsman must be prohibited from expressing a final judgment until the pertinent demands have been met. Wiels alleges that the ombudsman – and therefore the Country– is acting unlawfully toward her by making use of anonymous informants, which she considered a violation of (the spirit of) Article 6 of the European Convention on Human Rights and of principles of proper government, or unwritten legal principles.
The Court ruled however that the standard for examining anonymous witnesses in a civil trial does not apply in investigations of the Ombudsman. It would have little effect if “whistle-blowers” could subsequently be subjected to interrogation or other actions by the very person they expect reprisals from. The conclusion is that, considering the ombudsman’s high degree of discretion, the nature of an investigation by the ombudsman, the limited use the ombudsman plans to make of statements of anonymous informants, and the reasons for not further revealing their identities, the ombudsman has not acted unlawfully.
Dr. Arduin stated that considering the constant undermining of the investigative authority of the Ombudsman by Kadaster, an entity with public authority, charged with the execution of government tasks, the principles and conclusions established by the Court in Willemstad are of great importance to Sint Maarten in understanding compliance by administrative bodies with investigations by the Ombudsman. On the other hand it behooves the community to understand that the Ombudsman investigates (non)actions of government to promote good governance in the interest of the people. Maintaining independence and objectivity is important in the process. As such the citizen should not expect to be favored, or expect judgments in favor of the citizen under pressure or threat by the citizen. The Ombudsman will never be intimidated by either government bodies or citizens in protecting the rights of the people.
Arduin concluded that democracy prevailed through the decision of the Court, emphasizing the independence and authority of the Ombudsman.