Ombudsman Gwendolien Mossel
PHILIPSBURG--Ombudsman Gwendolien Mossel said on Thursday that she was pleased to have submitted the three national ordinances in connection with cuts to the employment benefits of civil servants, (semi) public sector workers and political authorities, to the Constitutional Court for review.
She said the court had established that it was understandable, under the circumstances and given the dilemma of government, that the Ombudsman had referred the case to the court for review, even though the national ordinances were ruled not to be in contravention with the constitution.
“After all, Parliament and the government also must act in crisis situations such as the present within the limits of their powers laid down in the constitution.” The Court decided, given the dire financial situation the country found itself in, that the temporary interference of the right to the peaceful enjoyment of possessions was not considered disproportionate, the Ombudsman said in a press release.
The Court further noted that “the judicial restraint to be observed relates not only to the assessment of whether the public interest is served by the austerity measures contained in the national ordinances as conditions for liquidity support, but also to the assessment of the suitability and proportionality of these measures.
“In short, even if the Ombudsman could propose an alternative that could be said to be better than the one chosen by the legislator – without relying on hindsight – that would not be enough for the Constitutional Court to quash those measures. In a case such as the present, the Court will only be allowed to intervene if choices made by the legislator of St. Maarten were manifestly without reasonable foundation.”
In this regard, the Ombudsman is also contented with the fact that the verdict will provide the necessary clarity to government and emphasises that she will continue to address the Constitutional Court, on behalf of the people, whenever there is a legitimate possibility that a law contravenes the constitution and in doing so fulfil her role as protector of the rights of the people, and Guardian of the Constitution.
The Ombudsman said it should be noted that the decision of the court is final. It is not open to appeal. Pursuant to the constitution, the effective date of the national ordinances shall be suspended until two weeks after the court has issued its decision. This means that the ordinances are scheduled to go into effect during the third week of November 2021.
The Ombudsman notes that the court agreed with the contention that the measures are incompatible with the non-discrimination principle, Article 16 of the Constitution, insofar that certain public sector entities such as, but not limited to, the Integrity Chamber, Chamber of Commerce and St. Maarten Housing Foundation were incorrectly not included in the annexes of the laws.
Government acknowledged that these agencies were indeed overlooked and promised (during the hearing) that the omissions would be corrected. Considering that the established unjustified unequal treatment will be lifted, the court used its discretion, provided by the constitution and the National Ordinance Constitutional Court, not to annul the law in question.
The court also agreed with the Ombudsman that the (initial) position taken by government, that in the event of a (real) promotion to a higher position, no corresponding higher wage (than the wage that was previously paid) would be possible, is at odds with the principle of equality. Government later abandoned this position.
Additionally, it is the opinion of the Court that the legal text, even though the explanatory notes conflict with this, allows an interpretation on the basis of which a higher wage is possible in the event of such a promotion, considering that such an explanation is also quite reasonable and in accordance with common sense.
Therefore, in view of the government’s statements, the court assumed that the St. Maarten government is already following the reasonable explanation given. The court took this as a basis and saw no reason to annul the provision in question under this circumstance.
The Ombudsman reminds the public that the Constitutional Court operates outside the regular court system. It conducts normative review in abstract proceedings before laws come into force. The relevant legal provisions, in this case the three national ordinances, were reviewed without reference to a particular case in which the provisions were applied.
In its first verdict of November 8, 2013, the court had previously established two general principles regarding the review of national ordinances: judicial restraint and the presumption of constitutionality. Simply put, this means that the legislator (parliament) enjoys a wide margin of appreciation in regulating its social policy. This margin is even wider when the issues involve socio-economic emergency law(s).
Absence of poverty line
Another important observation of the court is that St. Maarten has not established a poverty line. The court therefore assumed that the subsistence threshold or poverty line is lower than the statutory minimum wage, although it is not certain to what extent this corresponds with reality, due to government’s lack of concrete data. The Court also pointed out that the present amounts for social assistance are very well below the statutory minimum wage.
Democratic deficit
Although not argued by the Ombudsman, the court also stated in no uncertain terms that it does not have the power to give an opinion on the legality of the position of the Netherlands when imposing conditions on St. Maarten as a condition for liquidity support; for example, because this would be contrary to the autonomy of St. Maarten guaranteed by the Kingdom Charter or to proportionality requirements.
The court acknowledged that even though these are important questions, these cannot be addressed by the Constitutional Court.
The Ombudsman notes that this underscores the democratic deficit within the Kingdom of the Netherlands and the urgent need for a dispute regulation.
Human dimension
The court concluded by reiterating that constitutional review is an abstract review in advance, which must be based on the facts as they can be established at the moment.
As time goes on, the Court notes, it will become increasingly clear what the actual effects of these national ordinances are on the life of the ordinary citizen of St. Maarten. This will undoubtedly influence the decision as to how temporary these temporary national ordinances should ultimately be, and that both the St. Maarten and the Dutch governments will not lose sight of the human dimension.
The Court also references the provision in Article 119 of the constitution whereby affected persons can test the practical implementation and application of the national ordinances in concrete terms against the fundamental rights laid down in the constitution, while also examining any additional adverse circumstances in the specific case which were not foreseen by the legislator.
The Ombudsman said she will be closely monitoring the practical implementation of the ordinances, particularly the provisions regulating promotions. Considering that the verdict was quite extensive (30 pages), the Ombudsman promises to delve deeper into other important facets of the ruling of the Court, in the future.
All documents regarding the proceedings, including the verdict, are available via the website
www.ombudsmansxm.com under the “Reports and Articles” tab (Constitutional Court).
