Constitutional Court of Sint Maarten

Last updated

Constitutioneel Hof
Constitutional Court
Philipsburg Courthouse (6545974295).jpg
Courthouse, where the first two cases took place
Constitutional Court of Sint Maarten
18°01′26″N63°02′45″W / 18.02381°N 63.04571°W / 18.02381; -63.04571
Established2010
Jurisdiction Sint Maarten
Coordinates 18°01′26″N63°02′45″W / 18.02381°N 63.04571°W / 18.02381; -63.04571
Composition methodGovernmental appointment, after consultation/nomination
Authorized by Constitution of Sint Maarten
Judge term length10 years (renewable once)
Number of positions3
Currently Jacob Wit
Since17 November 2010

The Constitutional Court of Sint Maarten (Dutch : Constitutioneel hof van Sint Maarten) is a court of Sint Maarten. As a constitutional court it evaluates the constitutionality of the provisions of legislation which is approved by the Estates of Sint Maarten and signed into law, but which has not entered into force. Procedures by the court may be initiated only by the ombudsman of Sint Maarten. As of July 2016, the court has decided two cases. Sint Maarten is the only country in the Kingdom of the Netherlands with a constitutional court.

Contents

The National ordinance Constitutional Court [1] (Dutch : Landsverordening Constitutioneel Hof) forms the legal basis for the constitutional court. It was approved by the Island Council of Sint Maarten before Sint Maarten obtained the status of country within the Kingdom as part of the dissolution of the Netherlands Antilles and entered into force when Sint Maarten obtained that status on 10 October 2010. [2]

Judges

The court consists of 3 judges (and 3 deputy judges) which are appointed for a 10-year term, which may be renewed once. The Council of State of the Kingdom of the Netherlands, the Common Court of Justice of Aruba, Curaçao, Sint Maarten, and of Bonaire, Saint Eustatius and Saba each nominate one of their judges as a member and deputy member of the court. The third member and deputy member is appointed after hearing the Constitutional Court. [1]

Initially judges who reached the age of 70 were dismissed. [3] As replacement was hard to find [5] that age was raised to 75 on 20 July 2021. [4] So that on 12 August 2021 mr. Jan de Boer could be reappointed. [6]

Members of the court are:

NameTerm StartTerm EndPositionMain position
Jacob Wit 2010 [7] President

Caribbean Court of Justice

Pieter van Dijk2010 [7] 2013 [8] Vice-president Council of State of the Netherlands
Jan de Boer [7] 2010, 2021 Common Court of Justice of Aruba, Curaçao, Sint Maarten, and of Bonaire, Saint Eustatius and Saba
Ben Vermeulen [8] 2013Council of State of the Netherlands

Cases

As of January 2018, 2 cases have been brought before the court by Ombudsman Rachnilda (Nilda) J.A. Arduin, who has been ombudsman of the country since its inception. [9]

Case 2013/1: Criminal Code

A complete recast of the Criminal Code was approved in 2012 and the ombudsman requested evaluation of the Act in January 2013. As this was the first case of the court, in its decision ECLI:NL:OCHM:2013:3 it first laid down certain points of departure regarding its evaluation consisting of 5 points: [10]

The Ombudsman had made seven complaints regarding the law, [11] which were dealt with in ECLI:NL:OCHM:2013:2

  1. The promulgation date was not recorded, which made it hard to identify the start of the 6-week period that the Ombudsman has to file complaints with the court. This complaint was considered well-founded.
  2. The provisions of the code were renumbered following several amendments during the legislative process without a proper mandate to do so. This complaint was held to be well-founded.
  3. Animal fights. The code allowed animal fights as part of a cultural expression. The court held that such a provision was not a priori unconstitutional.
  4. Higher maximum penalties for theft from tourists. The court held the complaint unfounded as legitimate reasons existed for these penalties.
  5. Life without parole. The code did not provide any provision for parole for people convicted for life (Dutch : levenslange gevangenisstraf and the government explained that also no informal parole system existed. [12] The court found such a penalty (without a "possibility for review" with a "prospect of release") inhuman in line with ECHR case law.
  6. Different treatment of residents and non-residents, as the first could not qualify for release on licence. This complaint was held to be well-founded.
  7. Legalization of prostitution. The court held that this was not a priori unconstitutional.

Thus the Court held complaints 1, 2, 5, and 6 to be well founded. It decided not to annul the ordinance as a whole but to annul only the provisions related to life without parole and release on licence. [10]

Case 2015/1: Integrity Chamber Ordinance

The National Ordinance for the establishment of the Integrity Chamber was approved by the Parliament of Sint Maarten, after considerable pressure from the Netherlands. The Chamber was to investigate and act upon possible violations of public integrity.

The ombudsman complained that a very substantial change had not been submitted to the Council of Advice for additional advice. The court held that the change was indeed sufficiently large to require such advice. Based on fundamental problems regarding the constitutionality of the act, in part because of the changes introduced, they Court annulled the act as a whole and laid down the requirements that a possible new act would have to fulfill. [13] These requirements included: [14]

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References

  1. 1 2 "National ordinance Constitutional Court (governmental translation)" (PDF). government of Sint Maarten (in Dutch). October 2013. Retrieved 10 July 2016.
  2. ↑ "Landsverordening Constitutioneel Hof". Government of the Netherlands. Retrieved 10 July 2016.
  3. ↑ Article 6 paragraph 2 of the Landsverordening Constitutioneel Hof
  4. 1 2 "Landsverordening, van de 15e juli 2021 tot wijziging van (...) de Landsverordening Constitutioneel Hof (...) in verband met het verhogen van de leeftijdsgrens voor de leden" (PDF) (in Dutch). 15 July 2021. Archived from the original (PDF) on 23 May 2022. Retrieved 13 April 2023.
  5. ↑ See Memorie van Toelichting. [4]
  6. ↑ "HOF | Beëdiging mr. Jan de Boer als lid van het Constitutioneel Hof van Sint Maarten". Knipselkrant Curaçao (KKC) (in Dutch). Retrieved 13 April 2023.
  7. 1 2 3 "Sint Maarten baanbrekend met Constitutioneel Hof" (in Dutch). 17 November 2010. Archived from the original on 2 January 2017. Retrieved 10 July 2016.
  8. 1 2 "Landsbesluit van 23 oktober 2013 no. LB 13/0822" (PDF). Landscourant of Sint Maarten (in Dutch) (24): 4. 2013. Archived from the original (PDF) on 15 September 2016. Retrieved 10 July 2016.
  9. ↑ "The Ombudsman". Ombudsman Sint Maarten (in Dutch). Retrieved 10 July 2016.
  10. 1 2 "Beslissing van 8 november 2013 in zaak 2013/1". Constitutional Court. 8 November 2013. Retrieved 10 July 2016.
  11. ↑ Schutgens, Roel; Sillen, Joost (2014). "Constitutionele toetsing in de West" (PDF). Nederlands Juristenblad (8): 508–514. Archived from the original (PDF) on 1 January 2017. Retrieved 10 July 2016.
  12. ↑ "Tussenbeslissing van 15 augustus 2013 in zaak 2013/1". Constitutional Court (in Dutch). 15 August 2013. Retrieved 10 July 2016.
  13. ↑ "Beslissing van 7 juli 2013 in zaak 2015/1" (in Dutch). 7 July 2013. Retrieved 7 July 2016.
  14. ↑ "UPDATE: Constitutional Court strikes down Integrity Chamber Law". The Daily Herald. 8 July 2016. Archived from the original on 19 October 2016. Retrieved 10 July 2016.
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