From left: Ombudsman Secretary General Randolf Duggins, Ombudsman Gwendolien Mossel and Legal Advisor Aishira Cicilia.
MPs during the meeting.
~ Mossel sees urgent need for govt. to set policy ~
PHILIPSBURG--With notaries pulling the brakes on the signing of deeds for long lease land due to the absence of a policy, Ombudsman Gwendolien Mossel on Wednesday underscored the urgent need for government to expeditiously establish a policy in accordance with the principles of good governance as outlined in the “DIDAM Arrest” case.
Notaries will only pass a deed if the Minister of Public Housing, Spatial Planning, Environment and Infrastructure VROMI gives his word in writing that the DIDAM Arrest requirements were followed. The Ombudsman also requested Parliament’s attention to look into this matter “with great urgency.”
The Ombudsman made the call during a Central Committee meeting of Parliament to handle the Ombudsman Year Report for 2022. During the meeting, Mossel said the Ombudsman is presently handling a complaint whereby the complainant, after having paid all the fees for the transfer of leased land, is unable to obtain the land because the notary could not make the transfer of leased land as a result of jurisprudence set in the DIDAM Arrest case of November 26, 2021.
“The notary informed complainant that government must comply with the abovementioned requirements set in said arrest in order to transfer the leased land. The notary can be held accountable if this is not the case,” Mossel told Members of Parliament (MPs).
In the DIDAM case law it was pointed out to notaries that they cannot turn a blind eye when having to deal with the transfer of any type of title to an immovable property owned by a municipality or country (in this case country St. Maarten) and not enquire if there is a policy in place. This was also communicated to the minister and the acting head of Domain Affairs in May of this year, Mossel said.
“Subsequently, [the – Ed.] complainant informed the acting department head of Domain Affairs that she still has not received a deed for the property, as the notary is waiting on the ministry to proceed. The acting department head responded by stating that he does not understand why the notary is not carrying out their tasks. In September 2023, the notary informed complainant, among others, that: “… all notaries have ceased the signing of the deeds for issuance of long lease based on the fact that the notaries know that there is no policy in place at the Ministry of VROMI …”
Mossel said the notary in question further informed the complainant that after having had a meeting, the civil law notaries in St. Maarten agreed that in the event signing of a notarial deed takes place, they agreed that the minister of VROMI must confirm in writing or in the notarial deed of issuance in long lease that the requirements of the DIDAM Arrest have been followed in said case.
Mossell explained that after being notified by the minister that government had taken the matter regarding the reallocation of parcels of leased land in the Over the Bank case to court, the Ombudsman had issued a Notice of Termination (NOT) with the following standards of propriety that should be taken into consideration: active and adequate information provision, legal certainty/legitimate expectations, adequate organisation of services, reasons and promptness.
She said the Ombudsman has taken note of the court verdict dated August 22, 2023, which she said is broadly in line with the summary of findings stated in the Notice of Termination.
“Although the scope of the systemic investigation was broader than that of the court in that the Ombudsman was investigating the allocation of domain land in two instances (2016 and 2021), the court’s review was limited to what parties brought forward and thus it concerned the allocation of domain land to six individuals in 2016. Both the court and the Ombudsman acknowledged the legal basis for the minister to allocate domain land, the discretionary authority/contractual freedom that exists for the minister, and that such authority is also bound by principles of good governance.
“In its analysis, the court, however, has set a new precedent by using the DIDAM Arrest to give content to the principles of good governance it deemed applicable in this case, namely equality and transparency principles.”
The DIDAM Arrest requires government to first draw up criteria/policy on the basis of which the buyer (acquirer) is selected. This criteria/policy must be objective, verifiable and reasonable. The public entity must then ensure an appropriate degree of publicity with regard to the availability of the immovable property; the selection procedure; the timetable; and the selection criteria to be applied. Government must also publish information about these aspects in a timely manner prior to the selection procedure in such a way that (potential) candidates can take note of it.
“The Ombudsman notes that the lack of a published policy has allowed successive ministers to issue domain land to a large degree at their discretion. This is further compounded by the lack of continuity with the constant changes in ministers over the years. The establishment of a policy and a central registry for the allocation of domain land has been a consistent recommendation of the Ombudsman since the inception of the institution,” Mossel told MPs.
She said it is rather unusual for government to initiate court proceedings against its own people regarding their own processes, which they have been following consistently for years.
“The question is: to what extent the average man/woman can be held accountable for the government’s shortcomings (such as the lack of a published policy)? The people trusted government, followed a process in accordance with standard procedures to obtain domain land, including paying to have the land measured.
“As the voice and protector of the rights of the people, the Ombudsman is asking Parliament, the representative of the people, to consider all aspects of the case as well as the effects of the lack of policy and ensure that it is addressed comprehensively,” she said.
Mossel, who gave a general overview in her presentation, was accompanied at the meeting by Ombudsman Bureau Secretary General Randolf Duggins, who presented the Financial Report, and Legal Advisor Aishira Cicilia, who presented a report on the Complaints Handled statistics.
