SXMElections.com

St. Maarten – The Council of Ministers will not cooperate with the instruction to Governor Holiday to subject candidate-ministers for the new cabinet to additional screening. In a letter, signed by outgoing Prime Minister Sarah Wescot-Williams, the council makes this position clear to Prime Minister Mark Rutte and Kingdom Relations Minister Ronald Plasterk. The letter, dated November 3 – last Monday –was sent to this newspaper yesterday morning.

The Council of Ministers mentions five arguments for its refusal to cooperate. The first one is that the instruction by the Kingdom Council of Ministers de facto reflects the will of the Netherlands, because Dutch ministers outnumber St. Maarten’s minister plenipotentiary.

“With the instruction and the procedure it followed, the Netherlands violates the rules and principles of good governance, among them the equality of the countries, that forms the basis of the legal order in the Kingdom of the Netherlands,” is the second argument.

“The Netherlands unlawfully and prematurely, without a thorough and concrete factual foundation, violates St. Maarten’s autonomy,” the letter continues. “The Netherlands abuses its power in the Kingdom Council of Ministers with the instruction. Due to the legal instrument it chose (a small royal decree instead of a general measure of Kingdom governance) the Netherlands evades every review on the aspect of legitimacy.”

The last argument reflects on the position of Governor Holiday: “The Netherlands puts the governor of St. Maarten in an untenable position by inciting him, in his capacity as Kingdom representative, to act in violation of the law as country representative. This results in constitutional and political tensions that the Netherlands should have prevented, considering its responsibility in the Kingdom Council of Ministers that stems from its voting superiority.”

The letter contains in the second paragraph some sort of mea culpa: “The Council of Ministers does not want to conceal that in the still young Country St. Maarten good governance, including integrity in government in the broadest sense of the word, is in the making and that measures are and will be taken to improve this. The Council of Ministers is unconditionally of the opinion that it is necessary to work hard and seriously on this. This is happening and the Council of Ministers has already promised to continue with this and to take recommendations for improvement into account.”

That is where the reflection on what should be stopped. The letter continues with an explanation about the resistance against the instruction. “For the umpteenth time the autonomy of the Caribbean countries and of St. Maarten in particular that the Charter allegedly guarantees, is exposed as a farce that violates the fundamental right to self-determination.”

The Council of Ministers labels the instruction as “a legalistic façade” because three of the four countries votes against the instruction. “The draft royal decree could therefore only be approved because all Dutch ministers in the Kingdom Council of Ministers, who form an overwhelming majority, voted in favor of the instruction.”

Furthermore, the Council of Ministers accuses the Netherlands of abuse of power and of “always hiding behind the legalistic façade of the Kingdom Council of Ministers.” The population of St. Maarten “opted at the time to be, as an autonomous country, part of a kingdom where actions are based on justice and law and not of a kingdom where might makes right.”

The formal objections against the instruction tackle the reasons the Kingdom Council of Ministers has given for its decision. That foundation is shaky and it smells of arbitrariness, the letter states. St. Maarten rejects for instance the notion that the screening process for candidate ministers is flawed. “Comparative research shows that the screening regulation in St. Maarten is not inferior to that of other countries and that it is on certain aspects stricter than in other countries,” the letter states.

The Council of Ministers furthermore rejects the argument, taken from the PricewaterhouseCoopers integrity report, that politicians are violating integrity rules. “The report established that St. Maarten is faced with the challenges all small island communities have to deal with. The report does not show that there are concrete objections against candidate-ministers. That was not possible either, because the (names of) the candidate-ministers were not known yet.”

The only exception was of course UP-leader Theo Heyliger who announced in an early stage that he would become the country’s new prime minister. So far, there are no concrete objections against Heyliger, the letter notes drily. “The Kingdom Council of Ministers apparently only saw reason to intervene when the UP-leader was appointed as formateur and a new coalition took shape under his leadership. It is clear that the minister of home affairs and kingdom relations did not see that reason during an earlier attempt to form a coalition with other parties.”

The letter points out that the Council of Ministers has embraced the recommendations from the Wit-report. There is no justification for the Kingdom’s intervention, because this is only the case “when it appears that St. Maarten does not, or insufficiently, guarantees good governance. Due to the lack of a foundation, the instruction is unlawful.”

The Council of Minister is of the opinion that the procedure the Kingdom Council of Ministers followed to arrive at its decision to issue the instruction is incorrect. The letter speaks of insufficient time to prepare for the meeting, due to the time difference between The Hague and St. Maarten, the lack of respect for the option of “continued consultation,” and bypassing the option of measures through a general measure of Kingdom governance. Such a measure requires an advice from the Council of State.

The letter points out that the regulation to settle disputes between the countries is sorely missing. Article 12a of the Kingdom Charter provides such a regulation but in spite of continued urging by the Caribbean countries, it still has not materialized.

The Council of Ministers expressed disappointment in the actions of Minister Plasterk. In a letter to Governor Holiday dated December 12, 2013 Plasterk stated that measures deemed necessary based on the PricewaterhouseCoopers report would be executed based on article 51 of the Kingdom Charter, but that this would only happen if St. Maarten did not take measures that would do justice to the report’s recommendations. The instruction that followed in October made clear that Plasterk did not have to honor this promise.

“The execution of the recommendations is high on the agenda of the intended coalition in its governing program,” the letter states.

A technical objection against the instruction is that, according to the Council of Ministers, the instruction exceeds the governor’s authorities. The Kingdom Council of Ministers misjudges the rule that the governor, when there are objections against the eligibility of candidate-ministers, “can (and has to) refuse to ratify the appointment decrees, if these decrees violate the Charter.”

The last objection against the instruction is that it violates the European Human Rights Treaty, the Charter of the United Nations and the treaty on civil and political rights. “The instruction aims to intervene in the privacy of people in a way the law does not provide and to exclude those who do not accept such a violation from the basic political right to be appointed to public office.”