SXM Draft Constitution - What do you think?

I remember sometime back that it was announced, by Maria I think, that the draft Constitution for SXM was available online, we looked but couldn't find it at the time. SXM PE posted a 2005 draft copy back in September 2006.

Last week it was announced that a new updated draft was now available in English as well as Dutch, on a website set up for the Country Sint Maarten. I hope there are some legal and educated minds out there who are willing to share their views and observations about it. I have a few to share below.

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Let me make it clear I am not a 'constitutional expert' or lawyer, I do not claim to know all the details behind the document or the various laws it refers to frequently within it. I can only read it like you and try to figure out the best I can what it means and how it will be interpreted once it is ratified.

Do I trust our local politicians to look after citizen and voter rights? No, I don't, I expect them to look after and ensure their own political and governing rights over ours and I think it would be nieve, transparent govt or not, to think any govt would do otherwise.

S. Maarten does not have a civil rights organization to watch over these constitutional change proceedings, to protect or bring public attention and awareness to infringements on those rights, or bad ideas our 'leaders' may be having or putting in place. We can only hope there are lawyers and stakeholders involved in the process who value those rights. And lets face it, most stakeholders are govt bodies and most lawyers and law companies are paid from govt or big business work.

The Today paper has apparently started reading it and I guess they felt like me that Chapter 1, Article 1 needs publicity.

CHAPTER 1
Basic Rights
Article 1
1. Everyone’s right to life is guaranteed by law. No one may intentionally take a person’s life.
2. The taking of a life is not considered to have been in conflict with this article, if it results from absolutely that was absolutely necessary:
a. to defend anyone against unlawful violence;
b. in order to perform a legal arrest or to prevent the escape of someone who is legally kept in captivity;
c. in order to suppress a riot or revolution via legal measures.

I know this is a 'Draft' Constitution, but seriously folks, does this sound healthy to you? Isn't it a bit ambiguous and vague? Doesn't this imply that anyone resisting arrest, or appearing to resist arrest, can be shot? Even if they are unarmed and no threat?
And as for 'to suppress' a riot or revolution, does that mean the Riot Squad can use real bullets and can they shoot a blogger who asks too many questions and exposes things that make people want to riot or revolt? lol, you have to laugh!

The whole document seems thin, vagaries and very loose interpretations and wording leaving it open to abuse and molding to political ends. Take this for instance:

Article 75
1. The advices of the Boards mentioned in this chapter are transparent in as far as they are not in conflict with the interests of the Country or the Kingdom.
2. The law may stipulate that other interests than those of the Country or the Kingdom may hinder the publication of the recommendations referred to in the previous section.

Other interests? You mean like govt business interests? Political interests?

I found this one rather funny.

Article 50
1. Blood relationships up to and including the second degree may not exist between members of Parliament. Spouses may not be members of Parliament at the same time.
2. Should persons who are related in the manner referred to by section one, be elected at the same time, the person receiving the most votes will be admitted, and if the ballots tie, the oldest of the two will become a member.
If both parties are of the same age, fate will decide.

I guess tossing a coin is out of the question. Just how would fate decide I wonder?

There is more, I have browsed through it and there is much I don't like. Most of all the loose wording, it's vague and I just don't trust our leaders one bit to make the changes and restructuring the island needs for it's new status. Are there any legal constitutional minds out there who care to offer a summary and possibly answer questions, if they can?

Dr. Voodoo.

More in the Constitutional Change Thread

Dr. Voodoo's blog | add new comment

Submitted by Dr. Voodoo on Sun, 2008-03-09 12:14.

Well, that's it for the Today. First they wrote an editorial where people talking to NOVA were accused of being traitors. This was written without telling the chief-editor.
And now they wrote an irresponsible, stupid and untrue article about the police getting a "license to kill". I suppose the chief-editor doesn't know anything about this either...
I expect a newspaper (of which the owner is a lawyer, for heavens sake!) to do some reading and research before they publish! Then they would have discovered that interpreting the draft-constitution is not that easy.

I am done with Today.

reply »

Yep, interpreting the constitution is that easy. If you attempt to escape arrest, or to escape from either the prison or the police cells (you know how comfy those establishments are) you run the risk to get shot. Is that a license to kill? You bet.
In the Netherlands escaping from jail isn't even a punishable offense, as long as you don't use violence or break other laws (like stealing a getaway car).
Funny thing is though, as I discovered later, that these exceptions stem from the European Human Rights Charter. Maybe this is new for you: the charter is already (in this sense) applied in the Antilles. So draft constitution or no draft constitution, escape from prison could get you a bullet in your behind.
I thought that this ought to become a point of public debate.
So what exactly do you think is untrue in the article?

O Psilos

reply »

From a comment below.

"b.) Interpretation of the right to life
In General Comment No. 614, the Human Rights Committee stressed the importance of the protection against arbitrary deprivation of life, by considering that States should take measures not only to prevent and punish deprivation of life by criminal acts but also to prevent arbitrary killings by their own security forces (par. 3). To this end, States should enact laws controlling the circumstances in which a person may be deprived of his life by the authorities."

I'm not that worried about prison escapees, though I would prefer that it said all legitimate means to stop an escape had been tried and that shooting to wound is the preference. I'm more worried that anyone, considered or perceived to be avoiding arrest, for whatever reasons, could be shot.

So, the constitution is at odds with these goals?

reply »

The ECHR (European Convention of Human Rights, in Dutch EVRM: Europees Verdrag voor de Rechten van de Mens) is already applicable in the Kingdom, so also in the Netherlands and I assume also in The Antilles.
You are right, escaping from prison, rioting etc could end with a bullet in your body. This is the same as in the Netherlands as well (This Convention goes above Dutch law!). Does the police there has a 007-License-to-kill? I don't think so.
The article in de SXM constitution is literally copied from legislation that works in the entire European Union. It gives an exception on the right of life. But is also implies that when you are shot by the police a thorough investigation has to be carried out. And when it appears that the police officer shot you on purpose, without warning etc.etc. he/she is still punishable.
In short: I support this article, as I supprt the constitution in general, but proper adjacent legislation has to be made as well.

reply »

Yeah, did you see that in the third episode of NOVA...he admitted (he was grinning!!!!) that he did not read what would be published in the newspaper for which he is responsible. Ignorant! And which fools compared talking to NOVA with traitors from WWII???
Really, education does seem to be in a pitiable state.
But then again what isn't? The environment, the government, the justice system, the waste policy, the amount of immigrants, the way people get elected, etc
The only thing that is not pitiable is the new festival village...which clearly shows where priorities lie in the country of Sint Maarten.

Cheers!

reply »

I couldn't find the explanatary notes in English (yet?), but in the Dutch one it is mentioned that the article about the 'right of life' comes from the European Convention on Human Rights. See article 2 of this convention
I found a short explanation on www.yourrights.org.uk

The ridiculous and I think irresponsible headline of Today turned out to be quite useful in my googling. I found this article from a university in Belgium.

I didn't read all of it but I think this explains:
"b.) Interpretation of the right to life
In General Comment No. 614, the Human Rights Committee stressed the importance of the protection against arbitrary deprivation of life, by considering that States should take measures not only to prevent and punish deprivation of life by criminal acts but also to prevent arbitrary killings by their own security forces (par. 3). To this end, States should enact laws controlling the circumstances in which a person may be deprived of his life by the authorities."

The way I understand it the constitution does not stand by itself and the right of life article refers to further laws, which must still be written?

But I have no legal background at all, so may be others can explain better.

reply »

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