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‘Legal authorisation lacks for instruction’

THE HAGUE--The Governor of St. Maarten lacks the legal authorisation to execute the instruction given by the Kingdom Council of Ministers on September 27 to carry out an independent audit of the level of integrity of the island government.

That is the opinion of Constitutional and Administrative Law of the Erasmus School of Law PhD candidate Aubrich Bakhuis, who published an article on the integrity instruction and its legal ramifications in a recent issue of the Netherlands premier magazine for legal experts and jurists, Nederlands Juristenblad.

According to Bakhuis, the article that the Kingdom Council of Ministers used, article 15 of the Regulation for the Governor of St. Maarten, is too narrow a basis for an instruction. Bakhuis questioned whether that specific article included in the Royal Decree published on September 30 offered sufficient grounds to arrange that all Ministers and civil servants of the Government of St. Maarten are obliged to cooperate with the audit.

The obligation to cooperate with the audit refers to the authorities of the Governor as described in the Regulation for the Governor. "However, the execution of such an investigation is not arranged. The Governor doesn't have supervisory authorities, such as the ordering of information."

Bakhuis explained that the instruction of the Kingdom Government was not secured in a General Measure of National Government ("Algemene Maatregel van Rijksbestuur"). This measure was used to place St. Maarten under higher supervision in 1993. The measure was based on the Constitution of the Country the Netherlands Antilles to "restore the administrative chaos on the island."

At that time the Governor of the Netherlands Antilles had a supervisory role and the Government of the Netherlands had an intervening task. This legal basis for supervision ceased to exist when the Netherlands Antilles was dissolved per October 10, 2010, and the Country St. Maarten was created. "Today, only article 15 of the Regulation for the Governor remains. And that is too small of a basis for the instruction in question."

Bakhuis noted that the constitutional double role of the Governor as Representative of the Kingdom Government and Head of the Government of St. Maarten will become tight when the government of his country is subjected to (administrative) supervision.

The Kingdom Government has made use of the "famous" article 43 of the Charter which defines the guarantee task that it has in the area of good governance in the Kingdom to issue an instruction for St. Maarten. In the opinion of The Hague, good governance and the level of integrity of politicians and the local public administration are a big problem that damage the Kingdom's reputation.

However, in order to make use of the supervisory authority one needs more than a task description in the Charter, stated Bakhuis. Carrying out that guarantee task can only take place via the input of legally secured supervisory authorities. "The Governor doesn't have these in the execution of the instruction," he stated.

According to Bakhuis, who has been researching administrative and financial supervision on Curaçao and St. Maarten since February 2011 as a PhD candidate, the execution of supervisory authorities without a legal basis violates the principle of legality. This principle also counts for the Kingdom Government which, in his opinion, may not carry out authorities without a legal basis.

The option remains to include the investigation authorities in the regulation of the Governor. However, this will not be easy, because all Dutch Caribbean countries would have to give their consent to change this Kingdom law. The overseas countries of the Kingdom will probably object to further violations of their autonomy, Bakhuis stated.

The Government of St. Maarten announced in the days after the publication of the Royal Decree that it would not cooperate with the integrity audit. "This deadlock places the Governor as an organ of the Kingdom in a difficult situation. Besides, legislation doesn't offer him much grip to force cooperation."

St. Maarten Prime Minister Sarah Wescot-Williams reacted furiously to the September 27 decision of the Kingdom Council of Ministers. She called the instruction a "constitutional blunder" and accused The Hague of a "neo-colonial attitude."

According to Wescot-Williams, the instruction imposed on the autonomous affairs of her country damaged the position of the Governor and created a dangerous precedent. Bakhuis questioned whether it was wise of Wescot-Williams to respond so angrily, but he did agree with her that she "had a point" where it came to the Governor's position and the content of the instruction.

Emotions have calmed down somewhat in the weeks after the instruction was issued. Both integrity committees, the one of the Governor and the other of Government, have been installed and there are plans for the committees to work together in order to avoid redundancies.

Governor Holiday held a first meeting with the Committee Integrity Inquiry last week during which they discussed plans to invite an international accounting firm to conduct the inquiry and the planning. Invitations have been sent to four New York-based accounting firms inviting them to participate in the tender to conduct the forensic inquiry investigation.

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