PHILIPSBURG--The Constitutional Court during Friday’s hearing about the cases filed April 26 by the Ombudsman of St. Maarten for review of three national ordinances in connection with cuts to the employment benefits of all (semi) public sector workers posed a number of pointed questions to both parties involved in these proceedings.
The three contested national ordinances issued by the government of St. Maarten in order to meet the conditions set by the Dutch government to receive liquidity support are the Temporary National Ordinance COVID-19 cuts, the Temporary National Ordinance to amend the terms of employment of political authorities and the Temporary National Ordinance on the standardisation of top incomes and adjustment of employment conditions at (semi) public sector entities.
As the so-called “Guardian of the Constitution” the Ombudsman challenged the ordinances which it considers to be in contravention with the Constitution. Representing the Ombudsman in these proceedings, attorney-at-law Jason Rogers called on the Constitutional Court to quash all or part of the three national ordinances.
Although the specific arguments for the challenging of the individual national ordinances differ slightly, the grounds are incompatibility with Article 15 of the Constitution concerning the undisturbed enjoyment of property, and incompatibility with Article 16 of the Constitution, the equality principle.
The right to undisturbed enjoyment of property which has been more broadly codified under the term possessions in Article 1 of the First Protocol of the European Convention on Human Rights (ECHR) includes among others salary, pension and employment benefits.
The austerity measures implemented by these laws include the reduction of vacation days, the elimination of vacation allowances and any salary increases on any grounds for an indefinite period.
The Ombudsman argued that these measures are incompatible with the non-discrimination principle. The primary motive for the cuts to the employment conditions of all (semi) public sector workers, was to be in solidarity with employees outside of the public sector, who as a result of the economic downturn due to COVID-19, had to endure a reduction in salaries and/or loss of employment.
“On the one hand the national ordinances make a broad stroke by including workers from organisations/companies in which government is a (majority) shareholder and on the other hand excludes certain public sector entities. The solidarity motive and the decision on which ‘public sector’ workers to include also gives cause for concern,” according to the Ombudsman.
Among questioned posed by the three judges of the Constitutional Court was whether government could provide a list of the public sector entities whose employees are or are to be retroactively submitted to the austerity measures.
Also, the judges wanted to know whether government had established a poverty line and whether it knows how many people are currently living under that poverty line. They also inquired about the minimum wage, unemployment benefits and other forms of social support.
The legal representative of country St. Maarten in these proceedings, attorney Richard Gibson Jr., stated that St. Maarten was “between a rock and hard place,” or “between the devil and the deep blue Caribbean Sea” as court president Jacob “Bob” Wit put it.
Gibson said there were no alternatives to the liquidity support provided by the Dutch government from the start of the coronavirus pandemic in March 2020, as alternative financing by the International Monetary Fund (IMF) or the World Bank was not possible.
Considering that austerity measures were among the conditions set by the Dutch government for liquidity support, St. Maarten had no other choice but to comply, Gibson said.
After more than four hours of hearings, court president Wit said it would consider all arguments presented by both parties.
“We are aware of the effects of these measures on many citizens, but this legal case is not about emotions but about the law,” Wit said.
The Constitutional Court will now deliberate on this case and present its judgment “within a reasonable time.” The parties involved will be notified when the judgment will be delivered.
The court president said that when the court comes to the conclusion that the contested ordinances are not in violation of the Constitution, it may still be that individual (semi) civil servants may present their objections to these ordinances in a civil court of law.
