Telegraaf: St. Maarten has law that gives immunity to politicians

March 25, 2013 1:40 PM

PHILIPSBURG – The national ordinance that regulates the prosecution of politicians has come under scrutiny again after a publication in the Telegraaf on Saturday with the headline: “Alarming study shows: corruption in St. Maarten hardly possible to fight”.

In this article the Telegraaf refers to a study by Mentko Nap who teaches constitutional law at the State University of Groningen.

VVD parliamentarian André Bosman says in the article that the Dutch parliament should have prevented this ordinance from becoming law, adding that nobody in the Kingdom should be allowed to escape prosecution. “Illidge and Duncan ought to step down to enable the public prosecutor’s office to do its work. Apart from that, it is dubious that Prime Minister Sarah Wescot-Williams does not intervene.”

The contested national ordinance was already the target of severe criticism by the Bar Association in 2010. The Telegraaf reported on Saturday that St. Maarten in fact has its own Berlusconi-law and that the ordinance provides politicians with immunity against the consequences of misfeasance and ordinary crimes.

The paper also suggests that this ordinance “undermines’ options for Kingdom Relations Minister Roland Plasterk to tackle corruption in St. Maarten while in fact the responsibility for crimes committed by politicians rests with the attorney General, the Common Court of Justice and the National Detective Agency, or Landsrecherche.

The last Island council of Island territory St. Maarten approved the legislation on October 8, 2010. Council members did not waste a single word on discussing the ordinance – they simply nodded their approval. The Dutch parliament had approved this legislation – a condition for obtaining country status – already in September that year.

While the Telegraaf wrote on Saturday that the ordinance was hidden in the “extensive” constitution, the ordinance is in fact a separate document and therefore not hidden at all. Article 50 of the constitution regulates the suspension and dismissal of politicians, while the national ordinance deals with rules for their prosecution. The Constitution’s chapter about the Public Prosecutor’s Office refers in article 123 to this ordinance.

That this ordinance offers politicians a level of protection ordinary citizens can only dream about, is simply a fact. This is also why the Bar Association was so severely critical of the legislation.

A minister or an MP can only be prosecuted after the Common Court of Justice approves a request to that extent from the attorney general.

“If an ordinary citizen commits a crime she or he can be prosecuted immediately by any public prosecutor without any impediments,” the Good Governance Committee of the Bar Association wrote in its comment on the legislation in December 2010. “If the same crime is committed by a politician a special procedure has to be followed before prosecution is possible at all.”

The committee concluded that the ordinance creates a so-called forum privilegiatum, or a limited form of immunity for politicians against prosecution. “Eye-catching and surprising is the fact that the governor of country Sint Maarten does not enjoy the same immunity,” the committee noted.

Moreover, the committee pointed out that the privilege of limited immunity against prosecution of Dutch politicians has since 1848 been limited to crimes committed in office.”In other words, already in 1848 the Dutch legislator recognized and acknowledged that there is no justification to maintain the privilege of limited immunity in connection with ordinary crimes.”

The committee listed four arguments against a special regime for politicians. The third one on the list is directly applicable to the Bada Bing bribery scandal. “There is nothing political about, for example, accepting a bribe or embezzling funds by a politician. Henceforth politicians that commit such crimes should be prosecuted immediately and should not be able to enjoy a limited form of immunity and extra protection.”

The committee concluded in 2010 that the ordinance infringes upon the principles of equality and non-discrimination and that there is no justification for putting ordinary crimes on the same foot as crimes committed in office. “There is no reason to set the clock back to 1848.”

The arguments that are used to justify the creation of a protective regime for crimes committed in office  are “outdated and based on assumptions that are factually incorrect or at least quite doubtful.”

The Bar Association’s committee qualified the ordinance and article 123 of the constitution questionable. “The committee sincerely hopes that based on the arguments put forward in this memorandum government and parliament will do the only right thing, which is to withdraw or severely amend this legislation as soon as possible. Taking corrective measures will set the right example.” This has not happened yet.