WEDNESDAY, 03 JULY 2013
PHILIPSBURG–For the first time since its inception the Constitutional Court of St. Maarten heard a case on Tuesday, filed by Ombudsman Nilda Arduin to declare six articles in the new Penal Code null and void.
The constitutionality of this legislation was discussed in English. The presence of radio and televised media in the Courtroom was also a first in St. Maarten’s legal history.
The Judges of the Constitutional Court of St. Maarten were sworn in November 2010. St. Maarten is the only country within the Kingdom with a court of this kind.
Minister of Justice Dennis Richardson, Acting Governor Reynold Groeneveldt, animal rights protagonists and representatives of the legal profession were among those present to witness the proceedings, which took a full day.
In January, the Ombudsman announced at a press conference that her office was seeking the annulment of amendments to the penal code that would make cock fighting legal and an annulment of an article that imposes higher sentences on crimes committed against tourists.
In addition, the Ombudsman is of the opinion that the removal of the periodical review for release of detainees after serving 20 years of a life sentence, the early release of foreign detainees who have been sentenced for a term of less than five years, as well as the exclusion from conditional release of foreign detainees who have been convicted for a term of more than five years are not compatible with the Constitution.
The Ombudsman also requested the Court to annul the implementation of a permit system for the exploitation of prostitution.
The proceedings also included the Ombudsman’s objection to the fact that government had not presented the ratified Penal Code in such a manner that she had been granted the legally prescribed period of six weeks to prepare and initiate the current proceeding before the Constitutional Court.
Another procedural matter concerned alleged irregularities in the numbering of the new Penal Code.
Government’s legal counsel, attorney Richard Gibson Jr., said these were no matters for constitutional review and requested to declare the Ombudsman inadmissible in these procedural cases.
It is the task of the Constitutional Court to assess legislation that has been ratified, but has not come into force as yet.
In opening the hearing, Court President Jacob “Bob” Wit referred to the momentous occasion of the first hearing of the Constitutional Court as a “truly historical event” and a “very remarkable trial” in which the new Criminal Code will be scrutinised pertaining to its compatibility with the highest law in the country: the Constitution. With this regard there is “no precedent, no tradition. It’s a totally new ballgame,” Wit said.
Ombudsman Arduin stated she had filed these cases as guardian of the Constitution in safeguarding the rights of all people. “The discussions today will have to set the tone for future reviews in St. Maarten,” she said. “Laws are no longer deemed immune.”
Attorney Gibson said it was government’s “firm opinion that this case had not to do with the fact whether these laws are against the Constitution but more on moral or ethical grounds. Government does not support the conclusion that these stipulations are against the Constitution.”
Article 2:335 of the new Penal Code, which concerns ill-treatment of animals, but also serves to accommodate the tradition of cockfighting, was the first possible infringement on the Constitution to be discussed.
The Ombudsman said that despite “vast protests by groups in society” Parliament voted in favour of the inclusion of the exemption from punishment for “cultural expression or structural activities in which animals are used in an organised context.”
She claimed the exemption is in conflict with Article 22 of the Constitution that obligates government to improve the environment and animal welfare and goes against government’s obligation to protect animals.
Gibson stated that the use of animals for cultural activities is allowed when other provisions in the law are observed, such as that animals may not be unnecessarily hurt. He further said that government will set up a permit system for “certain activities,” and called the appeal premature. According to Gibson, Article 22 would not be applicable in this case.
The Judges asked a number of critical questions on this point. “There is no permit system yet, and it has not been established yet that sharp objects are not allowed or that animals are allowed to be left to die. How to make cockfights innocent…a fight without gloves, so to speak?” Judge Wit said.
The government’s legal team, headed by Head of Judicial Affairs Vidjai Jusia could not immediately provide an answer to the question how such a permit would look.
Crimes against tourists
The Ombudsman said that heavier sentences for crimes committed against tourists should be forbidden as these were discriminating and would endanger locals and visiting businesspersons.
Government contested this and stated that Article 289 was included in the Penal Code to protect the tourist industry, which is the main force behind the island’s economy.
Court President Wit pointed at the fact that this would lead to “strange things and oddities,” such as the fact that a visiting businessman would get less protection than his colleagues visiting the island to relax.
“The same would go for visiting St. Maarteners who live abroad. They would receive more protection when they come visit here, than their relatives who live here,” said Wit.
Judge Vermeulen wondered whether the Ombudsman had thought too quickly with her appeal on this matter, seeing that it is still up to a Judge in the Court of First Instance to actually impose higher sentences for crimes committed against tourists.
The Ombudsman also requested review of the policy concerning life sentences. She stated the possibility for parole for “lifers” should have been included in the new criminal code.
Arduin said that removing the possibility of early release for prisoners serving life sentences goes against the humane treatment of prisoners as stipulated in Article 30 of the Constitution.
According to government, the Ombudsman is not authorised to ask the Court to make government include legislation in draft-ordinances, but “just to quash ratified legislation.” Therefore, it requested the Court to declare the Ombudsman inadmissible on this point.
Under Article 1:37 of the new Penal Code, foreigners sitting out prison sentences of less than five years who have spent at least nine months in detention and who have no legal title in St. Maarten may be eligible to early release upon the discretion of the Minister of Justice.
However, foreigners who are sitting out sentences of five years or more and who are not legal residents of the island are not eligible for conditional release. The same goes for Dutch nationals who don’t legally reside in St. Maarten.
The government policy on the conditional release of foreigners from prison raised some eyebrows in the Constitutional Court. Main bone of contention was the question why St. Maarteners and legal residents would not be entitled to the same treatment. “This provision leaves me puzzled,” Wit stated.
It is the Ombudsman’s opinion that governmental policy for early release is discriminating against criminals who are legal residents of this island and constitutes unequal treatment.
Gibson said the article was included because government wants to prevent overcrowding of the prison system.
The Court President was critical of this provision. “It gives quite a lot of power to the Minister of Justice, even in cases which might shock the legal order. This strong power to interfere in sentencing may touch on the separation of powers between the legislator and the judiciary, which could be deemed unconstitutional,” Wit stated.
The Ombudsman also filed a petition against Article 2:212 of the new criminal code, which stipulates that only unlicensed prostitution is punishable with a maximum prison sentence of four years.
According to Arduin this stipulation does not protect the human rights of sex workers and would license “third parties” to exploit persons and infringe on their human dignity and integrity.
The Ombudsman stated that the article contravened with Articles 3 and 4 of the Constitution, which protects citizens against torture and inhumane or degrading treatment and against slavery, servitude, forced labour and human trafficking.
“Any form of coercion should be excluded,” she said. “These workers should be protected by government.”
“There is hardly any protection now,” Wit said pointing out the current situation in which prostitution is illegal, but in fact tolerated. “Government cooperates in attracting so-called exotic dancers, who are submitted to a permit system such as other workers from abroad. But we all know how it works. If you are a carpenter from Colombia you don’t get a permit, but if you are a prostitute from this country you will,” said Wit.
According to the government lawyer equality in the sex industry was not the issue at hand. “Article 212 stipulates that the exploitation of prostitutes is punishable, with higher sentences than before, unless there is a permit,” Gibson explained. “Government decided to maintain control over this industry by means of permits.
Before closing the hearing, the Court President said that the Constitutional Court will take ample time to carefully and thoroughly assess each element in this case as the ruling will set a precedent in future cases. The Court will present its decision on September 13, Judge Wit determined.
Bron: The Daily Herald, St. Maarten