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Dr. Rutsel Martha: revoking dissolution decree perfectly legal

By Hilbert Haar – LONDON / GREAT BAY – The decision by the Marlin-cabinet to withdraw the October 29 dissolution decree and to replace it by another one that pushed the elections back to September of next year is perfectly legal. That is the opinion of Dr. Rutsel Martha, a former Minister of Justice in Curacao who is now based in London as an international legal consultant. From a distance, Dr. Martha has followed the political developments in St. Maarten closely. He spoke with Today exclusively in a telephone interview from London on Friday.

Before diving into the nitty-gritty of the matter, here is a summary of Dr. Martha’s position. The December 14 decree is legal and it did not even have to be published in the National Gazette, as the government nevertheless did on December 15, and the role of Governor Holiday in this constitutional crisis is questionable because he did not behave the way his position requires.

Dr. Martha, said that, in his opinion, there is a sound legal basis for postponing the elections until September.

“In principle every decision can be changed. A national decree is signed by the governor and a minister; it can take effect immediately, but it could also take effect sometime in the future. If you want to revoke a decree, you have to consider the consequences, but it is possible to change a decree.”
In the case at hand we have a decree that had not taken effect yet. That makes it easy to revoke it, because it has not had legal consequences yet. It must be clear that there is no objection whatsoever to even revoke the decree entirely.”

Dr. Martha refutes the notion that the decree Governor Holiday signed on December 14 and that was subsequently published in the National Gazette the next day came too late because the October 29 dissolution decree, submitted by the Gumbs-cabinet and signed by the governor, too effect on December 15 at midnight, while the publication in the National Gazette appeared later in the course of that same day.

“There are two types of national decrees,” Dr. Martha says. “Some decrees contain general measures, others contain only a decision. Decrees containing general measures have to be published in the National Gazette. For decrees that contain a simple decision, like the one signed on December 14 by Prime Minister William Marlin and Governor Holiday do not have to be published.”

Dr. Martha repeats that every legal action can be revoked. Otherwise it would not be possible to modernize legislation. “For this reason, I do not see, why the government could not revoke the October 29 decree.”

Dr. Martha says that revoking the decree and replacing it with a new one does in no way violate democratic principles. “In our democratic system there are elections for the parliament on a regular basis. That is anchored in the State Regulation, and it is also mandatory based on the European Human Rights Treaty. In this case we have early elections because the government was not happy with the parliament. That was the immediate cause, but that cause does not exist anymore.”

With this remark, Dr. Martha refers to the fact that there is a new government inn place that has the support of a majority in parliament. “The dispute has therefore been solved. Therefore, I do not understand why this postponing the elections would violate democracy. The decision does not do away with the constitutional principle of regular elections.”

The role of Governor Drs. Eugène Holiday has increasingly come under pressure, especially from politicians on the losing end of the argument. Is that justified? Dr. Martha’s analytical observations about the role of the governor leave little room for doubt.

“The office holder has to behave according to the rules of his office, and governor Holiday has not behaved the way his office prescribes,” Dr. Martha says.

The governor had three options. “In domestic matters he has to act conform the wishes of the politicians. If he does not want to do that, if there are reasons for it, he can call on the Kingdom Charter. He can submit a decision for annulment if there are reasons for it. But if those reasons are not there, than he has to take the honorable way out – he has to resign.”

Dr. Martha emphasized that the governor is not a puppet. “Ministers count on it that they can go to the governor for an exchange of ideas. It is a useful function and the governor could be the wise advisor, but he has to leave politics to the politicians.”

In the case at hand, Dr. Martha says, the governor has made Prime Minister Marcel Gumbs look like a fool. He advised him not to dissolve the parliament, but in the end he signed the decree to dissolve the parliament. The governor should have submitted that decree for annulment to the Kingdom Council of Ministers. Because he did not do that, the situation occurred that we have now. If the governor had followed procedure, the discussion would have moved from Philipsburg to The Hague. Instead, the governor maneuvered Gumbs into a position where he thought he could do it differently.”

Dr. Martha says it is understandable that former Prime Minister Marcel Gumbs opted to go public with the discussion. “That was the only way to get the governor to make a move.”

In Dr. Martha’s opinion, the governor made a crucial mistake when he called in the assistance of three judges. Judges Evert Jan van der Poel, President of the Common Court of Justice, Bob Wit, President of the Constitutional Court and Jan de Boer, a member of the Common Court of Justice, provided Governor Holiday on October 21 with the advice that made him agree to a deal with the Gumbs-cabinet: the governor signed the October 29 dissolution decree, and the ministers of the Gumbs-cabinet tendered their resignation.

“The governor is not allowed to communicate with others,” Dr. Martha points out. “That is up to the government, or to the Kingdom Council of Ministers.”

While Dr. Martha is of the opinion that the governor should have stepped down when he did not agree with the dissolution of parliament, that is now water under the bridge. But the situation should have consequences, Dr. Martha says. “A clarification of what the governor can and cannot do is called for. The chairman of the Kingdom Council of Ministers (Prime Minister Mark Rutte), Prime Minister William Marlin and Governor Holiday ought to get together to discuss this.”

In the debate about the political uproar, references have been made to 2912, when the Schotte-government lost its majority in the parliament in curacao. Schotte called for the dissolution of parliament and he got his way.

“He operated much smarter that Prime Minister Gumbs did,” Dr. Martha observes. “His dissolution decree went into effect immediately, and once such a process is underway it is impossible to turn it back. The decision did force Schotte to step down and there came an interim-cabinet that was allowed only to deal with pending matters. In a situation of a conflict-dissolution you should not leave your opponents the space to adjust, but that is what the Gumbs-cabinet has done by letting its decree take effect on December 15.”

Dr. Martha’s opinions are not shared by everyone. Last week Dr. Arjen van Rijn, a constitutional expert who has rendered advice to the Gumbs-cabinet in the constitutional controversy, said last week at a constitutional conference at the Radboud University in Nijmegen that revoking the October 29 dissolution decree is “improper.”

By replacing the October 29 decree by a decree that postpones the elections until September 26, the governor violates the constitution, Van Rijn said, adding that Governor Holiday is taking a big risk by assuming authorities he does not have.

“Initially it seemed as if the governor would refuse to sign the national decree to postpone the elections. I know that he went to The Hague and upon his return he came with this compromise.”

Van Rijn said that it is worrisome that this way the constitution is being pushed aside, “You are allowed to want something different but then you have to change the constitution and not trivialize it .It is out last anchor. I have heard that there are citizens who consider going to court. Every stakeholder is free to do that.”

A report in the Antilliaans Dagblad suggests that Governor Holiday’s decisions have been orchestrated by The Hague, and that there are quire some constitutional experts who are taken aback by the governor’s course of action.

Dr. Martha dismissed remarks made by Dutch parliamentarian Ronald van Raak as “superficial.” Van Raak said in an interview that ship umping is “cheating on voters” and that he “fears” there is a lot of money involved. “It confirms that St. Maarten is plagued by corruption and nepotism,” Van Raak said.

“That is very superficial,” Dr. Martha said. “Van Raak is passing judgment in a way that is not in accordance with the depth of his knowledge.” That’s a nice way of saying that Van Raak does not know what he is talking about.

“He is making a big mistake, because ship jumping also occurs in the Netherlands,” Dr. Martha points out. “The difference is the size of the parliament; therefore, the consequences are not always visible. Are you then going to say that the Netherlands is corrupt? That is a far-reaching statement.”

Dr. Martha notes that politicians could jump ship for a variety of reasons. “They could have different insights,” he says, adding that “ship jumping is inherent to the parliamentary democracy.”

“You don’t have to be corrupt at all to jump ship,” Dr. Martha says. “You don’t get tur way and you simply walk away. Look at the number of independents in the parliament of Curacao. Are they all corrupt?”

The question is now what are the solutions to limit the effects of ship jumping? Dr. Martha has a couple of suggestions.

The first one is separate elections for the parliament and the prime minister. In this system, the prime minister would then form his own cabinet, without influence from elected members of parliament.

The second option is the British system whereby ministers are also members of parliament – a situation comparable with the time of the Island Territory, when commissioners were also members of the Island Council. “In that case it is clear that the parliament elects the government,” Dr. Martha says. “The government is then a sub-committee of the parliament.”

In the context of St. Maarten the British system is not practical, Dr. Martha says. “Not enough people. But there are all kids of variants possible, though some of them will come across as artificial.”