PHILIPSBURG, Sint Maarten — On 1 November 2021, the Constitutional Court of Sint Maarten, following a request from the Ombudsman Gwendolien Mossel to review three (temporary) national ordinances introducing temporary but drastic benefit cuts for employees in the public and semi-public sector and of political authorities, held that those measures were not contrary to the Constitution. The ruling was made by the Hon Jacob Wit (Judge het Caribbean Court of Justice), Ben Vermeulen (Member of the Dutch Council of State) and Jan de Boer (Judge of the Common Court of Justice of Aruba, Curaçao, Sint Maarten and van Bonaire, Sint Eustatius and Saba), respectively President, Vice-President and Member of the Constitutional Court.
The Constitutional Court found that because of the Covid-19 pandemic Sint Maarten had encountered a very serious financial-economic situation, forcing the country to call for financial assistance on a short notice. The Netherlands was prepared to provide financial ‘aid and assistance’ on the basis of Article 36 of the Kingdom Charter but imposed a number of strict conditions on the liquidity support to be provided. This will require the introducing of temporary austerity measures as of 1 July 2020 in the form of a substantial reduction (12.5% and 25% respectively) of, and further limits on, the employment conditions of those working in the public and semi-public sectors.
The Constitutional Court stated upfront that it did not have the jurisdiction to give an opinion on the legality of the position of the Netherlands with respect to imposing conditions on Sint for liquidity support, for example because this would be contrary to the autonomy of Sint Maarten guaranteed by the Kingdom Charter or to proportionality requirements, if at all the Ombudsman would have intended to argue this.
However, the Court ruled that it may and must give an opinion on the question “whether the Sint Maarten Legislature (Government and Parliament), given the fundamental rights and limits of government power enshrined in the Constitution, could reasonably have accepted and implemented the conditions that were set out in the national ordinances in order to be eligible for the Dutch support.”
The Constitutional Court made it clear that it was well aware that the measures laid down in the national ordinances submitted for review “will have far-reaching and for many unexpected and serious consequences. The living situation will have deteriorated for them
overnight in a way that would not normally be acceptable. No government likes to take such measures. But the Government and the Parliament of Sint Maarten were between a rock and a hard place. To keep the Country running, a lot of money was needed, which simply wasn’t there. That money could only be borrowed from the Netherlands under certain conditions – currently elaborated in the contested national ordinances.
“In these circumstances and given this dilemma, the Constitutional Court considered, it was understandable that the Ombudsman had referred this case to the Court for constitutional review. “Parliament and government have to act within the limits of their powers laid down in the Constitution even in crisis situations such as the present one. According to the Court, however, “that review has not led to the conclusion that those limits had been exceeded.”
The Ombudsman’s arguments that the reductions in salaries and the like provided for in the
national ordinances constitute unlawful infringements of the right to property guaranteed by the Constitution (Article 15) and the principle of equality or non-discrimination (Article 16) were rejected by the Constitutional Court, inter alia with reference to the case-law of the European Court of Human Rights. and with due regard for the constitutional position of the Constitutional Court “which entails restraint in cases of socio-economic ’emergency law’.”
The Court considered the interference with the property of a large number of citizens to be absolutely far-reaching but, given the crisis situation and its seriousness, not
disproportionate. In this respect, the Court held that this interference ‘does not affect the
minimum wage, is temporary, does as such, in so far as it can be seen from the information currently available, not lead to an excessive individual burden and serves a goal of major and crucial importance: the continuation of much-needed liquidity support.” In coming to this conclusion, the Court stated that it had to accept that the poverty line is lower than the minimum wage, even though this poverty line had not been established for Sint Maarten and neither the Sint Maarten nor the Dutch government seem to have any concrete data with respect to this issue.
According to the Court, the reliance on the prohibition of discrimination was also not
successful. It is true that, as the Ombudsman rightly argued, the various categories of workers are treated differently, but, as the Court found, these categories differ from each other in a relevant sense, so that there is no difference in treatment which should be justified.
The reliance on the provision on the public authorities’ concern for the subsistence of the population (Article 19(1)) was rejected by the Constitutional Court, since, even if it is considered that this provision lends itself to review (which the Court left undecided), ‘it cannot be concluded, on the basis of the information available at this stage, that the workers affected by the reduction measures would end up below the poverty line.
“Finally, the fact that the Members of Parliament were faced with a difficult choice, since they had to choose between, on the one hand, adopting national ordinancesthat have far-reaching consequences for employees in the (semi)public sector and, on the other hand, the renunciation of the short-term and absolutely necessary liquidity support from the Netherlands, did not mean that there was a ‘legally binding mandate’ to vote for the legislation. On the contrary, they were still legally entitled to vote independently and freely on the draft ordinances. According to the Court, the prohibition of a “last”, a prohibition on voting on the instruction of others (Article 61, third paragraph) was therefore not violated.
In concluding the judgment, the Constitutional Court emphasized that the constitutional
review of these national ordinances carried out here is an abstract ex ante review, which must necessarily be based on the facts as they can be established at present.
“As time goes on, the Court decided, ” it will become increasingly clear what the actual effects of these national ordinances are on the lives of the ordinary citizens of Sint Maarten.
This will undoubtedly influence the decision on how temporary these temporary national ordinances should ultimately be. It must be assumed that both the Sint Maarten and the Dutch government will not lose sight of the human dimension. In addition, there is the ex-post-ruling court referred to in Article 119 of the Constitution, which in individual cases can specifically assess the practical implementation and application of these national ordinances against the fundamental rights enshrined in the Constitution and may consider any additional onerous circumstances in the specific case before them, which were not foreseen by the Legislature.