PHILIPSBURG--Constitutional Change Project Director and the former Lt. Governor Dennis Richardson has weighed in on the upcoming Second Chamber debate on the role of the Kingdom guarantee function for St. Maarten and Cura�ao.
He told The Daily Herald over the weekend in an invited comment that his understanding of the purpose of the debate was to ascertain whether the Kingdom government could intervene at this moment in the ongoing decision-making process to balance St. Maarten's budget, based on the guarantee function of the Kingdom.
This guarantee function, he said, is provided for in Article 43 of the Kingdom Charter, which states: "The guaranteeing of these rights (basic human rights), freedoms (basic human freedoms), law and order, (the maintenance of law and order) and good governance is a Kingdom affair."
He said that in the event these fundamental matters of governing were systematically neglected and abused or not maintained, the guarantee function of the Kingdom kicked in and the Kingdom government could then intervene. St. Maarten experienced this once before on matters of good governance and was placed under higher supervision, he said.
Richardson said that in his opinion this newspaper was "on the ball" in its recent editorial that said the members of the Second Chamber of the Dutch Parliament were acting prematurely. He said, however, "If the action is meant to get official and public clarification on the relations between the diverse complex regulations in this regard, then naturally that is in itself good thing."
"Action can be taken by the Kingdom government using Article 51 of the Kingdom Charter, by which a general kingdom measure can be established aimed at correcting the situation.
"Article 50 of the Charter also offers the opportunity to intervene by annulment of measures (laws, decrees and such) taken by government that are in conflict with the Charter, international regulations, a kingdom law or a general kingdom measure, or that are in conflict with Kingdom interests or affairs that are guaranteed or taken care of by the Kingdom," Richardson explained.
The Kingdom Council of State (Raad van State van het Koninkrijk) plays an important advisory role in the process of decision-making.
"It is generally accepted, however, that intervention is not done based on an incidental issue within a country. It is also the generally accepted view that if there is the possibility of redress within the country that possibility must first be exhausted before intervention can take place.
"Superficially one could say that the opportunity exists for the Kingdom government to take action now. However, it is not that simple. In the first place the present debate surrounding the budget cannot be easily qualified as a systematic neglect and abuse of government's responsibilities in general, nor specifically of the financial matters. ... The government is addressing the matter.
"Furthermore, the multi-annual projections underpinning the budget show balanced budgets in the near future," explained Richardson, who was a key member of Team of St. Maarten that was involved in negotiating the constitutional arrangements for dismantling the Netherlands Antilles and for establishing the new entities that have emerged.
He continued: "One can contend, however, that the draft budget that has been produced until now is in conflict with a kingdom law ? specifically the Kingdom Law on Financial Supervision that demands a balanced budget, as is also regulated in the Constitution for St. Maarten. So the Kingdom government should be able to intervene, right?
"Not so fast, however. Is there not the possibility of redress within the Country St. Maarten? The answer to that is 'yes.' In the first place the Governor is not allowed to sign laws that are in conflict with, among others, a kingdom law, which in this case would be in conflict with the kingdom law on financial supervision.
"He would have to send it up for annulment based on the Kingdom law on instructions to the Governor of St. Maarten (article 21) or he can opt to use his influence to help resolve the matter. But let us, for argument's sake, assume that the law is signed by the Governor notwithstanding the conflict of opinion with the Committee for Financial Supervision on whether the budget is balanced or not."
Richardson said there was also the possibility that the Ombudsman could challenge the budget as established by a law before the Constitutional Court of St. Maarten for being in conflict with the Constitution of St. Maarten. The constitution calls for a balanced budget. One could therefore argue that there are several possibilities for redress and therefore the guarantee articles are not yet in play, he said.
"Another aspect that has to be considered is that the articles in the Charter of the Kingdom constitute what is called general lawmaking (lex generalis). The Kingdom Law on Financial Supervision is considered a special law (lex specialis), on a specific topic. Therefore, according to the rules of the game, the application of the rules and regulations of that specific law has, generally speaking, priority over those of the general law.
"This means in this case that the legally established procedures in the Kingdom Law on Financial Supervision have to be followed first. These rules and regulations allow for the Committee for Financial Supervision to advise the Kingdom government to issue an instruction to St. Maarten on balancing the budget, assuming the Kingdom government shares the views of the committee, which does not necessarily have to be the case.
"In the event the Kingdom government follows the advice of the Committee for Financial Supervision, the government of St. Maarten has the right to appeal the decision taken by the Kingdom government. The decision of the Kingdom government on appeal is prepared by the Kingdom Council of State.
"The Kingdom government is by law not allowed to deviate from the advice of the Kingdom Council of State on the judicial, legal aspects of the proposed decision and for the rest can only deviate from the proposal of the Kingdom Council of State on important, ponderous arguments based on grounds concerning financial supervision as regulated in the Kingdom Law on Financial Supervision."
He said this meant that this procedure would first have to be followed and finalised and that "de facto," if not "de jure," the route via Article 43, second member (Kingdom guarantee), in conjunction with Article 50 and/or 51 of the Charter of the Kingdom was then probably superfluous.
"However, nothing is lost in that respect, as the Kingdom government has the opportunity within the process of the Law on Financial Supervision to act or not to act based on tangible information ? and not solely on perception ? and the governments of the countries have the opportunity to challenge such action based on arguments."
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