Our country is often referred to as a State of Law (Rechtstaat). This means that our country is governed by the rule of law, and that every formal decision of the state must be based on a law and the authority provided by law to make such decisions.
Our Parliament and our Government are bound by the law. The Legality Principle (Legaliteitsbeginsel) is laid down in article 1 of our Penal Code. It states: “No law is applicable unless it was established by the competent authority and published according to the law.” This article aims to give the reader an insight of the applicable laws on St. Maarten, how they are established and by which organs of the state.
What is a law?
A law is a set of rules, established bya Government Entity authorized by lawto do so, and binds the general public and legal entities. Measures can be taken if the law is not adhered to. Government Policy also entails a set of rules, but these do not have the force of law as the laws listed below.
Article 81 of our Constitution lists of the Laws and Regulations that are applicable in our country. The laws are listed according to their precedence, in other words the Kingdom Charter is the highest law and takes precedence over all other laws and regulations within the country:
The Kingdom Charter. (Het Statuut)
The Charter regulates the structure and the functioning of the Kingdom of The Netherlands. It is established by the First and Second Chamber of The Netherlands, with the approval of the Governments and Parliaments of Aruba, Curaçao and St. Maarten.
International treaties with other countries and international organizations, as far as these are declared applicable on St. Maarten.
These treaties are negotiated by the Dutch Ministry of Foreign Affairs and established by the Kingdom of The Netherlands, which is the Sovereign Entity. The other countries in the Kingdom, Aruba, Curaçao and St. Maarten and their Parliaments, are given the opportunity to review these treaties and determine if the country agrees to be bound by the treaty or not. The procedure is regulated in the Kingdom Charter, example: The Convention on the Rights of the Child.
Kingdom Laws and General Measures of the Kingdom Government that, according to the Kingdom Charter, are binding for St. Maarten.
These Kingdom laws are established by the Kingdom Council of Ministers in collaboration with the Parliaments of the four countries in the Kingdom. These are applicable in all four countries in the Kingdom. For example: The Kingdom Law on the Dutch Nationality.
The Constitution of St. Maarten(Staatsregeling)
The Constitution of St. Maarten was established by the Island Territory of St. Maarten just before 10-10-10, and accepted by the Parliament of St. Maarten on 10-10-10.
Bi-lateral or Mutual Arrangements, as regulated in article 38, sub 1 of the Charter, if these are given force of law by a competent authority of St. Maarten.
These agreements are made by the Council of Ministers of the country and can be given the status and force of law by a National Ordinance. For example: The Regulation on the Detention Capacity for the Prisons within the Kingdom.
Bi-lateral arrangements, as regulated in the Kingdom Charter.
Certain matters can be regulated between one or more countries within the Kingdom by General Kingdom Measure, an example is: The Consensus Law for the Police Force.
National Ordinances, including the Uniform National Ordinances.
A National Ordinance is accepted by the Parliament of St. Maarten. Article 82 of the Constitution states that a National Ordinance is established in collaboration between the Council of Ministers and the Parliament. In general, most ordinances are initiated by the Council of Ministers, sent to the Council of Advice for their scrutiny recommendations and advice before they are presented to Parliament for handling. The Parliament has the right to amend, accept or reject the proposal of law. After the National Ordinance has been accepted by Parliament, it must be signed by the Governor and one or more Ministers and published in The National Gazette, before it obtains force of law and becomes binding. A draft ordinance is submitted to the Council of Advice, to Parliament and vice-versa via the Governor of St. Maarten. In accordance with article 85 sub 1, of the Constitution, Parliament or one or more members of Parliament have the right to initiate draft national ordinances.
A draft Initiative Ordinance must also be submitted to the Council of Advice before it can be handled by Parliament. These drafts are not submitted to the Council of Advice via the Governor, but are submitted directly to the Council of Advice by the President of Parliament. If such an Initiative Ordinance is accepted in Parliament, it must also be signed by the Governor and one or more Ministers and published before it becomes law. A National Ordinance established by the Government and Parliament is signed by the Governor and co-signed by one or more Ministers. Only then the ordinances will acquire force of law on St. Maarten. For example: The Law on Income Tax.
Uniform National Ordinances (Eenvormige Landsverordeningen) are established by one or more Parliaments within the Dutch Kingdom, for instance Curaçao and St. Maarten. Such an ordinance is applicable in both countries, for example: The Civil Code.
National Decrees, containing general measures.
These National Decrees are established by the Council of Ministers only and not handled in Parliament. By these Decrees, Government may regulate certain matters that are binding for the general public. National Decrees containing general measures must also be presented to the Council of Advice for their scrutiny and advice, and must also be signed and published by the Government. For example: The Law of August 4, 2017, enacting general measures on Public Health.
Some Ministerial Regulations are sometimes also referred to as Ministerial Decrees. By National Ordinance and or National Decree containing general measures, a Minister can be authorized to regulate certain matters by Ministerial Decree or Regulation. This is called delegation of authority and is done when a regulation has to be continually adjusted. By authorizing the Minister to make the adjustments, going through the entire procedure to amend the law is avoided. A Ministerial Decree is established by the Minister under whose portfolio the subject resorts. For example: The Minister of Economic Affairs will establish a Decree pertaining to the prices or other economic issues. The Minister of Finance will regulate Financial matters.
Ordinances of Public Entities, and Independent Public Entities (ZBO) as regulated in the Constitution.
Government’s Public and Private Entities, such as SZV, APS, Kadaster and the Bureau Telecommunications, are charged with carrying out certain Government tasks. As far as can be ascertained there are no Public Entities charged with Government responsibility that have the authority to issue Ordinances and or Regulations enacting general binding rules and regulations.
It should be further noted that all laws mentioned under section 81 g (with the exception of uniform laws), h, i and j, are subjected to review by the Constitutional Court if presented to the Court by the Ombudsman within six weeks after it was signed into law, for review.
The above mentioned are the laws, rules and regulations that are applicable toall citizens, residents and legal entities of St. Maarten.
Bron: Daily Herald