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Thursday, 25 November 2010


A few weeks ago the Honourable Chief Minister, Hubert B. Hughes in his continuing saga with the Governor and the British Government mentioned that he would be studying the new constitutional status that St. Maarten entered into on October 10, 2010. He was referring of course to the fact that the Kingdom of the Netherlands underwent a process of constitutional reform that basically dissolved the Netherlands Antilles (which comprised the Dutch Caribbean territories) to bring into being a new constitutional structure that would grant Curacao and St. Maarten the status of countries within the Kingdom of the Netherlands. To put it in clearer perspective, those of you who are acquainted with the Aruba experience would understand that Curacao and St. Maarten are now like Aruba was, since 1986, when it opted for an arrangement outside of the Netherlands Antilles that was dubbed “status aparte”. Of course, when Aruba was first granted “status aparte” it was deemed to be a first step towards independence --- that step is now almost a quarter of a century old.

There is a very old saying that: “the grass always seems greener on the other side”. I have heard the Chief Minister in many of his debates make reference to other islands and territories in the Caribbean while making comparisons on a range of different issues. In many cases, and upon closer examination, the discerning listener may discover that things may not always be as they first appear and that perhaps we in Anguilla may be better off than those with whom we so readily compare ourselves --- as we try to make political points. However, having said that, I am in no way suggesting that all is well with Anguilla --- but merely warning that we need to vet our comments very carefully before we jump to conclusions. I say this because I believe that when the Chief Minister made reference to the new constitutional structure for St. Maarten, his demeanour suggested that he felt that it was something to which we in Anguilla should strive to aspire. In particular, he seemed to be excited by the fact that the head of the government is called “the Prime Minister” which could suggest that the new status mirrors that of an independent nation.

A friend and colleague from St. Maarten allowed me to have sight of a document produced jointly by the Ministry of the Interior & Kingdom Relations and the Ministry of Foreign Affairs of the Kingdom of the Netherlands that describes, in précis form, its new constitutional structure. It is my understanding that the document was also reproduced in the Herald newspaper but being off-island, I could not confirm this at the time of writing. But if you can get hold of that document it would provide you with useful reference for my comments.

In addressing the issue of the new constitutional structure I will speak about St. Maarten, our closest neighbour, which is one of the four “equal countries” in the Kingdom. In this context, whatever I have to say about St. Maarten also applies to the other two Caribbean countries Aruba and Curacao. They have the same status in the new Kingdom arrangement. I have also decided to do so because the close relationship we have with St. Maarten historically, socially, economically and geographically will allow for more effective comparison. The islands of Bonaire, St. Eustatius and Saba having decided to remain closely aligned with the Netherlands have in a sense been integrated as the “Caribbean part of the Netherlands” rather than being separate countries like Aruba, Curacao and St. Maarten.

In this new structure St. Maarten has its own government and parliament. As you will recall even though St. Maarten had its own island council the power to make laws resided with the central government and parliament located in Curacao. St Maarten will now be responsible for making laws relating to its own affairs. Obviously, these laws can neither be adapted nor enacted in the short term so in the interim the Antillean legislation on the books will apply where possible. The Government of the Kingdom (Netherlands) will be represented by a Governor and the island council will be abolished. In this regard, one can fairly conclude that St. Maarten has arrived at the point where Anguilla was in 1976 when we introduced the Westminster model of government, however, the difference appears to be that, in practice at least, the position of Governor will be held by a local St. Maartener. It may be instructive to observe the St. Maarten process for selecting its Governors to see whether this can inform an objective discussion with our administering power on this subject.

In this new structure, the Kingdom of the Netherlands will still hold responsibility for foreign affairs and defense. These matters will be dealt with in the Council of Ministers for the Kingdom in The Hague, the Parliament of the Netherlands. St. Maarten is represented in that Council by a “Minister Plenipotentiary” which means a person appointed by the St. Maarten Government to act on its behalf. While there is a Minister of Foreign Affairs who deals with the Kingdom of the Netherlands as a whole there can be specific treaties and conventions that may not apply to the entire Kingdom but rather to specific countries. In this regard, St. Maarten has its own Foreign Relations Department where it can deal with issues of regional significance but any agreements will still have to be concluded by the Kingdom. It also means that embassies, consulates and permanent missions/representations of the Kingdom, wherever they are located, will deal with issues affecting St. Maarten as well.

The management of foreign affairs in this new St. Maarten arrangement is much more formal and institutionalized than what obtains in the case of Anguilla with the United Kingdom. In our case the British Government is responsible for foreign affairs but there is no Anguillian representation in the Ministry of Foreign Affairs in London neither is there a department of foreign relations in Anguilla. The British Government through the Governors Office deals with these matters and may when it deems appropriate delegate some regional issues to the Chief Minister’s Office. While this arrangement has seldom presented any challenges for Anguilla a number of territories have experienced, on occasion, reluctance on the part of the British Government to grant them the “entrustments” (basically meaning authority) to sign on to regional treaties and agreements. As Anguilla begins to develop closer ties in the region and “the neighbourhood” it may be worthwhile beginning a dialogue with the UK Government for formalizing the process of dealing with external affairs particularly as it relates to these issues.

St Maarten will work together with the Netherlands “in the interests of protecting the independence of the judiciary, tackling corruption and cross-border crime, and maintaining public order”. This arrangement includes a joint Court of Justice for the administration of justice in St. Maarten as well as the other Caribbean parts of the Kingdom both the countries and the public bodies, namely, Bonaire, Statia and Saba. And while there will be separate police forces, cooperation in the form of the joint criminal investigation team which existed before the dissolution of the Antilles will continue. The Netherlands will also continue to be involved in financial oversight.

In terms of these arrangements, though they do not exactly match those in Anguilla, the effect is the same. We are part of the Eastern Caribbean Supreme Court Judiciary and we have formal cooperation agreements with the regional police associations as well as the UK Overseas Territories Police Advisory Division. Like in the case of St. Maarten, the UK is involved in financial oversight and I imagine as in our case the Netherlands is very much involved in ensuring that St. Maarten is compliant with international standards for financial regulation and best practices.

Speaking specifically, to financial oversight, a Financial Supervisory Authority has been established in St. Maarten to supervise public finances under the ultimate authority of the Council of Ministers for the Kingdom. The Authority has as its underlying supervisory principles a balanced budget, prudent financial management and a cap on contracting debt. Again this is not dissimilar to the situation in Anguilla where the Governor is responsible for financial regulation and supervision under the auspices of the Secretary of State. And when borrowing, in addition to being passed in the House of Assembly, requires the approval of the Secretary of State. In the case of Anguilla we do have a Financial Services Commission that deals with regulation of the Financial Sector but it does not have a function in the oversight of Government finances. This is obviously an area where recent actions by the present Government and the Social Security Board could have been vetted and the embarrassment that now exists could have been averted.

I made mention of the St. Maarten judiciary arrangements and the similarity to the Anguilla situation in terms of its functioning but I must speak specifically about Section 8 of the St. Maarten Constitution that deals with the Constitutional Court. The significance of this is not only that provision was made for its establishment under Article 127 of the Constitution --- but also the fact that it was actually inaugurated last Monday, November 15, 2010, just over a month after the new status came into force. Mr. Richard Gibson a highly respected lawyer in St. Maarten, who was very much involved in the constitutional consultations, in his remarks at the opening of the Constitutional Court said: “Most countries in the world have a Constitutional Court, but such a Court does not exist in any country in the Kingdom of the Netherlands. The establishment of this Court came about because of the perseverance, insistence, maturity and conviction of St. Maarten that its citizens and its democracy will be best served by creating a separate Constitutional Court, with the expertise and flexibility to effectively and efficiently deal with constitutional issues to guard against the erosion of the rights and freedoms of citizens of St. Maarten.”

A very important aspect of the operations of the Constitutional Court is the Ombudsman, an office established under Article 78 of the St. Maarten Constitution and already filled. As a matter of fact the holder of that position Dr. Nilda Arduin also spoke at the inauguration of the Court last Monday and in her own words described her role as follows: “The Ombudsman has the authority by law to investigate the improper conduct of government bodies, including ministers and all civil servants. Parties summoned by the Ombudsman are compelled by law to provide information, follow recommendations offered by the Ombudsman to resolve conflicts, adapt procedures, and take measures. It is however the Parliament that can query and summon the Ministers to give account to Parliament regarding their Ministerial responsibility for the assigned portfolios.”

My reason for making specific mention of the Constitutional Court and the Ombudsman is the fact they are both aspects of the St. Maarten Constitution that addresses the concerns expressed by so many Anguillians regarding any discussion about independence. Mr. Richard Gibson who I quoted earlier tells the story of a lady in Saba who was asked by a politician what she thought of independence. The politician in a effort to prompt a response said to her: “With Independence we will have our own parliament; we can make our own decisions; we can do whatever we want!” The lady pondered deeply before she responded then said: “Well, tell me --- if we become independent and government and parliament can make any decisions they want --- who will be watching our politicians?”

That story makes me reflect on the fact that whenever the present Government is prohibited by protocol, legislation or the constitutional arrangements with the United Kingdom from taking a political action they begin to cry out for independence. The role of the Ombudsman and the Constitutional Court in the St. Maarten Constitution are two of the institutions that carry out the function of guarding and protecting freedoms and rights to which our citizens are entitled. Our politicians should become aware that if they have ambitions about moving into independence they must begin by recognizing their responsibility to respect the various checks, balances and safeguards which must of necessity be enshrined in the constitutions of all modern democracies.

In preparing to write this column I questioned my colleague and friend from St Maarten as to what he thought about the new Constitutional arrangements as opposed to the Anguilla situation. I also said to him that we were going through a constitutional reform process for almost ten years and the consensus has been that we should press the British for full internal self- government --- and that there are many aspects of the St. Maarten model that I thought would be extremely useful in our discussions with the British Government. He replied very candidly, that there were a few points that we should ponder on which were missing in their arrangements. We should not allow our non-reciprocal arrangements with the UK and the European Union (EU) to be diluted in any new structure; we should always maintain the requirement for alien landholding licences by all non-Anguillians to purchase property; and we should continue to disallow rights of establishment for non-Anguillian companies, that is, it should not be automatic for UK and EU companies to do business in Anguilla. My colleague felt that in this sense the Anguilla arrangements could be considered more favourable! Which simply reinforces the point that “the grass always seems greener on the other side!”

Victor F. Banks
Sachasses Estate
November 23, 2010

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