Philipsburg: Reacting to a recent ruling of the Grand Chamber of the European Court of Human Rights (ECHR) in the case Murray versus the Dutch Kingdom, the Ombudsman Dr. Nilda Arduin pointed out the relevance of the Constitutional Court of Sint Maarten.
Constitutional review is a task and authority of the Constitutional Court. The Ombudsman is an independent facilitator contesting – supported by legal arguments – the constitutionality of a law in the general interest of the people, by bringing new laws to the attention of the Constitutional Court. The main authority of the Constitutional Court is to rule on whether or not laws that are challenged by the Ombudsman are in fact in conflict with constitutionally established rights and freedoms.
The question to be answered by the Ombudsman as “Guardian of the Constitution” and ‘Protector of the rights of the people” is, when to take a case to the Constitutional Court. When convinced that a law contravenes the Constitution, or when there is a possibility that a law is unconstitutional?
In the first case brought before the Constitutional Court regarding changes to the Criminal Code, the Court agreed with the Ombudsman that not providing an opportunity for parole in case of a life sentence, to be irreducible with art. 3 of the International Treaty for Protection of Human Rights (“EVRM”), and incompatible with art. 3 and 30 of the Constitution. Subsequently, Government adapted and ratified amendments to the Criminal Code, approved by the Parliament of Sint Maarten in accordance with the instructions of the Constitutional Court. The pertinent decision finds support in a recent ruling of the Grand Chamber of the European Court of Human Rights (ECHR) dated April 26, 2016 in the case Murray versus the Dutch Kingdom. It has been reported in the media that as a result of this ruling the Kingdom Agent at the ECHR in Luxembourg has asked Aruba and Curacao to indicate in what manner they will give follow up to the Court’s ruling. Hence the relevance of the Constitutional Court; Sint Maarten having adapted the Criminal Code to match international law before it took effect.
The Constitutional Court operates outside the regular court system. It conducts normative review in abstract proceedings before laws come into force. The relevant legal provisions are reviewed without reference to a particular case in which the provisions were applied. It behoves the Court to consider legal instruments of a higher order, such as international treaties ratified by the Netherlands, including Sint Maarten, in the process.
Though in light of separation of powers between the judiciary and the legislator the Court considered judicial restraint appropriate pertaining to the issue regarding ‘prostitution with a permit’ brought forward by the Ombudsman in 2013, it behooves Government to consider arguments discussed in the case in the presently ongoing deliberations pertaining to this matter.
Dr. Arduin emphasizes that she will address the Constitutional Court on behalf of the people whenever there is a legitimate possibilitythat a law contravenes the Constitution, notwithstanding any personal opinion. In this way the Ombudsman is of the opinion to fulfill her roles as Protector of the rights of the people, and Guardian of the Constitution in a more democratic way. The Ombudsman is presently awaiting a decision from the Constitutional Court pertaining to arguments brought forward in September 2015 regarding the National Ordinance Integrity Chamber.