It is not yet known when the Constitutional Court will review these requests. However, the application of the law will not be hampered, because while the Penal Code has been published, it still requires the passing of an executing law to bring it into effect. That executing law has not yet been drafted by government.

 

The Ombudsman has also requested a constitutional review of "some legal technical issues" pertaining to procedures followed/not followed by government. These are not used as grounds for annulment. The review is related to the procedure of ratification date and notification to the Ombudsman, and amendments to a text approved by Parliament, e.g. change to the numbering of the articles of law.

 

The numbering of the articles of the Penal Code as approved by Parliament differs from the version published by government. "Who approved this change?" Ombudsman Nilda Arduin-Lynch asked before the press on Tuesday.

 

Also, the Penal Code was approved in May 2012 by Parliament, but its ratification date is "not clear." It was signed by Governor Eugene Holiday on December 13, 2012, and sent to the Ombudsman on January 10.

 

On January 22, the Ombudsman was notified by Prime Minister Sarah Wescot-Williams that the date of ratification was not clear, but the date on which the governor signed the law has been applied by government in the final text to be published. This means that the day after, January 23, was the last day of the six weeks available to the Ombudsman to submit a petition to the Constitutional Court.

"Because of the extremely limited time which was available to the Ombudsman to study the law, we have limited our intervention, but requested the court to give us the opportunity to elaborate on our arguments in writing as provide for by Article 21 of the National Ordinance of the Constitutional Court."

 

Animal Cruelty

Articles 335(3) of Book II (or Article 539 in the old numbering) and Article 54 (old Article 665) of Book III, related to the exemption from punishment of animal cruelty for cultural reasons or that is structurally organised, "should be taken off the books."

 

Article 335(3) relates to maltreatment of/cruelty against animals. "By adding section three to this article, maltreatment or cruelty against animals, which is deemed a felony ('misdrijf'), is considered not punishable, if executed as a means of cultural expression or structurally organised."

 

"We recall protests against approval by Parliament of this clause by various groups and persons in the society," the Ombudsman said. However, in the process it might have "apparently overlooked" that Article 3:54 dealing with allowing animal fights without a permit is "considered an offence, a lighter criminal act."

 

The Ombudsman sees the two articles going hand in hand. "We indicated, based on literature and international standards, that animal fights should be considered to be animal cruelty."

 

The Ombudsman also believes that the exemption of animal cruelty for cultural reasons or structurally organised impacts society (the pros and cons) to such an extent that the Advisory Council should have been heard before voting on such an amendment was carried out by Parliament.

The Ombudsman's role is to review a law against the Constitution, not against plain moral issues, which are not protected by the Constitution, she said. "Animal cruelty is morally wrong, but also contravenes the charge to Government by the Constitution to take care of the wellbeing of animals."

 

Crimes against tourists

Article 289 of Book II, section e of the Penal Code, which establishes that a crime committed against a tourist carries higher penalties, "maybe in contravention of equal rights of persons residing on the island as provided for in Article 16 of the Constitution" and "goes against the system of the law," according to the Ombudsman.

 

Increased sentencing of "theft" as the basic crime in this article is, in general, linked to the circumstances under which the crime is committed, and not linked to the person against whom the crime is committed, the victim. The judge will each time have to define a "tourist" as provided for by the law, she explained.

 

"Question is: what about the business person, the person visiting family, etc., also residing temporarily on the island? Questionable is if a crime committed against a "tourist" for economic reasons should be considered more severe than the same crime committed against other visitors or residents," the Ombudsman said.

 

Based on legal arguments, "we request the Constitutional Court to review this clause against Article 16 of the Constitution, which provides for equal treatment for all in St. Maarten.

 

That request for review emphasises, "The approach of this Ombudsman to take issues to the Constitutional Court for constitutional review, not only if the Ombudsman is convinced that a law is in contravention of the Constitution, but also if there is a possibility that the law contravenes the Constitution."

 

She continued: "It is not a matter of win or lose as in a regular Civil Court, but it is a matter of guarding the integrity of the Constitution on behalf of the citizens of the country.

 

Prostitution

It is because of limited time that the Ombudsman did not go into the provisions regarding prostitution, parole, abortion or euthanasia. However, if deemed necessary, the Ombudsman may extend the petition to include these articles, if granted the opportunity by the court to further elaborate on the petition.

 

The criminalisation of prostitution is cancelled with the outlining of the possibility for licensing. Ombudsman Bureau Senior Advisor Marlon Hart said this is "basically a codification of the practice we already have, like in the adult entertainment policy."

 

The code stipulates that any form of prostitution involving minors is punishable.

 

Also under review is the decision by government, as ratified by Parliament, to remove the possibility of parole for people serving a life sentence. This may lead judges to move away from life sentences and lean more to 30-year sentences depending on the severity of the crime. Also that article was removed from the Penal Code, but the numbering was never adjusted so there is a gap.

 

(The Daily Herald)