AJZ: Taking away the seat of a convicted politician legally difficult

October 27, 2008 6:00 AM

From a democratic point of view, there ought to be little possibilities to end the mandate that an elected representative of the people had received from the voters, in a different way than through elections. It is otherwise an infringement of the democratically obtained mandate, says the General and Judicial Affairs department as a result of a convicted politician retaining his/her seat, as included in the new state settlement.

This issue has caused a lot of protest and criticism from the society. Many people want to include in the state settlement that convicted politicians loose their seat and administrative function. Pressured by public opinion, it was decided to add an extra paragraph to section 41 of the new state settlement, through which rules can be made for the deposition-declaration of the membership of the new Parliament, when convicted by the judge. During this weeks’ public Island Council meeting, commissioner of General Affairs, Zita Jesus-Leito (PAR) tried to foil the criticism on the attitude of the BC in this matter. She pointed out that legally it is impossible to include the loss of seat when convicted in the state settlement.

The advice of AJZ indicates that there are sections in the Island-regulations Neth.Antilles (Erna) and the State Settlement that prescribe what the conditions are for a council member to be appointed and when a council member stops being member of the council.
An Island Council member must be 21 years of age; must not be disfranchised by irrevocable legal decision; must not be institutionalized due to mental illness; must not become incapacitated to manage goods; must not be deprived of the parental authority or guardianship; must not have been sentenced to imprisonment for more than one year, must not be convicted for mendacity or vagrancy, must not have been sentenced more than twice in three years due to a penal offence, inclusive public drunkenness, or disfranchised.
If after being admitted as council member, a member doesn’t meet the requirements mentioned or fulfills functions, positions, or work that excludes him from eligibility, the membership can be ended before his/her four years in office.

Disfranchisement (be entitled to vote) can be imposed by a judicial decision, but because being entitle to vote is so close to being eligible for election, such decision can also have effect on this.
The Human Rights European Court emphasizes that the right to vote is a fundamental of the democratic system and that limitation of this may not be thoughtlessly made. According to this Court, the length of the prison sentence, the seriousness of the offence and individual circumstances are considered important for disfranchisement. “A general, automatic regulation that doesn’t make any individual distinction, are beyond this judgment”, writes AJZ. “Thus a legal disfranchisement ought to be sufficiently individualized. In other words, the law may not disfranchise people too generally.”

The Antilles are party to the Human Rights European Treaty. If active compulsions regarding a conflict result directly from this treaty, the judge will check this conflict based on these EVRM-compulsions. This also applies to the judgment of conflicts regarding being entitled to vote and being eligible for election with respect to the function of Island Council member, concludes the AJZ. If a Council-member realizes that he/she cannot do his/her job properly, because he/she is in prison, he/she can always resign, but must not be forced to.

(Source: National newspaper Amigoe)

24 October, 2008