Duncan: "My oral instructions as valid as any written decree"

January 28, 2011 10:34 AM

PHILIPSBURG--Justice Minister Roland Duncan said on Wednesday that his “oral instructions” are “just as valid as any written decree” and stressed that there is “no need for a set of written decrees” relating to the continuation of the Brooks Tower Accord (BTA) process.

However, attorney Remco Stomp said that was the minister’s “personal interpretation.” He said a minister could give oral instructions, but stressed that these should not be in breach of laws.

  “If the minister says his oral instruction is as good as policy, then that is his personal interpretation. A minister can, for example, take a ministerial decree, but that should be published and is, as policy, a lower kind of legislation, it has similar standing,” Stomp said in an invited comment on Thursday. “If a person acts on the oral instruction of a minister, the person within reason – like jump in the pond – should not be held responsible.”

  Duncan’s statements about his oral instructions during the Council of Ministers press briefing on Wednesday were to clarify issues surrounding the continuation of the BTA process. He said that while the BTA policy had not changed, as a minister he could and had given oral instructions on the matter.

  “If you read the law you will see it: the minister has a lot of discretion in deciding; and if I give oral instructions those oral instructions are just as valid as any other decree. A decree is a decision of a minister. There is no need for any set of written decrees about God knows what.”

  Duncan said one of his “oral policies” pertaining to the BTA process was to allow persons to be able to testify about others’ identity. “In the past testimony by people confirming that ‘I knew this person’ was not allowed,” Duncan said adding that this was allowed under the law. “We’ve allowed it.

  “Now this is not a change of any policy. That’s a matter of my interpretation and I bear political responsibility for that – for interpreting rules, the same rules as how I see it. … In the beginning you had to come with a receipt and I think that’s what creates a lot of forgeries, because if you can’t get a receipt, then you will try to manufacture one.

  “While there are several people who can testify under oath or not that they know me, under the law testimony is allowed. It’s an allowed way of proving something. If the person lies, then they can be prosecuted for perjury.”

  Duncan said there hadn’t been a case of perjury thus far. He said the ongoing BTA court case was about falsified documents, not about his oral instructions.

In writing

  Stomp said the issue with oral decisions was that they held no water in court. “If a minister takes a decision and you have to fight it under administrative law, then it has to be in writing. If you have decision that is meant for the general public, this policy should be in principle known to the people and has to be put in writing. If someone acts on something that’s not clear, then it’s difficult to uphold it and prove that the minister said it.”

  On the other hand, he said, people should be able to “confide and have trust” in the instructions given by a minister and should not be “punished” for carrying out a minister’s oral instructions.

  Stomp added: “The minister is correct that he has great freedom in making and implementing policy as long as it is not in conflict with the law. This is called ‘beleidsvrijheid’ in Dutch. In administrative law there is mostly a provision for the so-called discretionary competence of the minister, in which he may [depart] from the standard rule if he deems necessary. This is a well-known feature in Immigration law, mostly used by the minister in cases of humanitarian nature.”

  Duncan said he had met the BTA process when he entered office and had tried to clear it up. “I’ve tried to finalise it and if we [showed] leniency and we have shown it has been legal leniency, it has been humane leniency.

  “When I look at the hundreds of people trying to get into St. Maarten I thank God, because St. Maarten is one of the very few islands that offer people that refuge. I think we should put a Statue of Liberty here, because we are also taking what the Statue of Liberty says: ‘Send me your unfortunate and send me your destitute.’ At the end of the day are we being responsible. …

  “The issue with Brooks Tower now is with criminal action: the fact that forgeries were made. It has nothing to do with policies. … It has nothing to do with whether I issued an oral policy or not. There is nothing wrong with what has happened with Brooks Tower. There are no new categories that were created. Of course people tried to get covered under the circumstances, but I think that was properly handled.”

  Duncan clarified that there were some 300 remaining BTA applications “to be handled” that had been handed over to the police for vetting and investigation. He said this “doesn’t make them illegal.”

  Referring to what he said was a misconception that had been created in some sections of the media, he said, “People were suspected of malfeasance because of forgeries, because of taking money, not because of any decrees.

  “You don’t need a decree to falsify a document and I repeat: there are no 300 illegal applications. About 300 are still to be treated and I thought it prudent to hand them over to the police for the police to vet them. If the police vet them and there is nothing wrong with the applications, then those applications will be dealt with.”

  Duncan said, “People had all kinds of opportunities since 2009 to apply for Brooks Tower permits. We were very clear that we extended the period because there were people who needed extensions and there were people who had not been finalised. We didn’t reopen Brooks Towers. We are not going to reopen Brooks Towers. We’re not creating new categories.”

  He said, “Someone keeps saying we opened a little back door, a side window for people to slip in,” and asked, “Why create such insinuations and such suspicions on the process?”

(Source: The Daily Herald St. Maarten)

 28 January 2011