December 28, 2007

Justice Wit on Constitutional Issues

Travel Ban
Source: The Daily Herald ( St Maarten)
Date of Publication: December 28, 2007

There are not many who question rulings of the High Court in The Hague, the highest judicial entity in the Dutch Kingdom that has no appeal possibility. Judge Bob Wit, a former member of the Joint Court of Justice of the Netherlands Antilles and Aruba, now on the Caribbean Court of Justice, chose to do so (see page 4 of Thursday’s paper - below ). That may not come as much of a surprise, because Wit is known as a rather outspoken member of the judiciary. His recent suggestion that it would be better to have a judicial entity check laws passed by Parliament to see if they comply with the constitution, the Kingdom Charter and international treaties when CuraƧao and St. Maarten obtain country status caused quite a stir.

The judge’s reasoning is that the politicians can’t always be trusted to do it themselves, often because of local or other interests. At the current island level the Lt. Governor, as an impartial crown-appointed official, can prevent such situations at an early stage as a member of the Executive Council, but with country status the Governor is not part of the Council of Ministers or Parliament and can take corrective action only after the fact.

Not surprisingly, the most objections to the idea came from politicians, officials involved in the process of constitutional change and other legal experts, who argued that it would undermine democracy, because such matters should be left up to elected representatives rather than the court.

Both sides of the argument have some merit, but in his latest criticism of the High Court’s decision to disallow the Antillean travel ban and confiscation of passports of drug couriers, the honourable judge has a point. He should know, because he imposed the travel ban in June 2004 as alternative to deal with the growing number of drug couriers that the prison system simply couldn’t handle.

It’s also good to remember that it was the Netherlands which was most concerned about the drug transports and not only placed body scanners in the departure halls at the airports of the islands, but started the so-called “100 per cent controls” at the arrival hall of Schiphol Airport. These controls were experienced as unpleasant by regular travellers and, meanwhile, aspects of them have been declared unlawful by courts in the Netherlands as well.

What is likely to happen now is that to create cell space for drug couriers, other convicts will probably end up getting even more sentence time reduction, a practice many already consider unjust and no help in combating crime. Judge Wit says there is indeed jurisprudence on setting special conditions to stop convicts from repeating their crime that may also infringe on civil liberties, for the common good.

We agree wholeheartedly. For example, the practice of keeping track of convicted sex offenders and informing the communities they are in of their presence is well established in many countries. With all due respect, in appears the High Court should have given this matter more thought.
See also : Judges are better suited to supervise Politicians :
Judge Bob Wit weighs in on Constitutional issues
Former judge of the Common Court of Justice of the Netherlands Antilles and Aruba Bob Wit champions the idea of adopting a constitution that is truly the supreme law of the land and charging the judiciary with the duty of upholding that Constitution.

“Should our politicians be supervised by Dutch judges or Dutch politicians and bureaucrats? I would choose the judges, as they are at least bound by our laws, and for many more reasons,” Wit said in a lecture at University of the Netherlands Antilles on the occasion of the launching of the new Dutch Caribbean Human Rights Committee.

In his speech entitled “Taking ownership of human rights: towards a maturing Dutch Caribbean,” Wit who is a judge on the Caribbean Court of Justice in Trinidad and Tobago, said the restructuring of the Netherlands Antilles was all about the furthering of a fundamental right its inhabitants have: The right to self-determination, the very first right mentioned in the International Covenant on Civil and Political Rights, a human rights treaty to which the Netherlands Antilles is a party.

According to Wit, it has to be accepted by all politicians, current and future, that they must be closely monitored in the way the ply their trade. “This is not just a demand made by the Dutch Government, it has also more importantly been demanded by the people,” he said.

The Dutch constitutional model, he said, is not suited to the Dutch Caribbean. It may be a good model for the Netherlands, but it’s not for the small scale societies. “The Dutch parliamentary system has been effective in the Netherlands because, at least in the past, the Dutch parliamentarians had enough integrity and knowledge to carry that system.”

However, experience has taught the Antilles, Wit continued, “that this is not the case with us. The Dutch position that we as citizens of the Dutch Caribbean have to be protected against the possible excesses of our very own politicians is correct.”

The solution to that problem, according to Wit, is not to give Dutch politicians and bureaucrats the power to supervise our politicians and bureaucrats. “The solution lies with the citizens of these islands, who must have more tools to keep our politicians in check.”

These tools should be provided by the constitution, he said, by adopting a constitution that is truly the supreme law of the land and charging the judiciary with the duty to uphold that Constitution entirely, and not part of it, so as to offer the full protection of the law.

This is not to give more power to the judges or to establish judicial supremacy, but simply to give power to the people themselves, Wit said.

“After all, even under a constitution that is supreme and wholly reviewable, the initiative to take steps against the government of the day lies not in the hands of the judges, but in those of the citizens themselves.”

Examples Wit gave for guarantees that would not exist if the constitution were not wholly reviewable were that the General Audit Chamber and the Ombudsman, institutions designed to monitor and possibly correct the executive government, would be virtually meaningless without an additional provision demanding efficient output from these institutions and ensuring that government provided them with sufficient means, financial and otherwise, to discharge their duties in a proper and timely manner.

“But even if such provision is made, it would be irrelevant if it could not be enforced if and when the government failed to comply.”

Another example he gave was the requirement that government has to present a yearly balanced budget. “If you think that such a provision would be able to stop the government from messing up our public finances ever again, you are wrong.”

In the first place, Wit said, the fact that the budget would be prepared according to norms the islands do not yet know and that can be established with a simple majority in Parliament does not sound very reassuring.
“Secondly, even if the government would bluntly present an unbalanced budget, probably claiming force majeure, this would have no effect whatsoever, because when constitutional review is not possible, ordinances that violate the constitution cannot be struck down.”

If, however, the islands would embrace the constitution as their supreme law with full judicial review – as St. Maarten has done – they would require having a much closer look at their constitution before adopting it, according to Wit.

“It is then that we cannot sprinkle our constitution with fancy ideals and hollow phrases anymore.”

Furthermore, he said the new constitution should not only be a supreme document, it should also be a defining document enshrining the many human rights that exist in the world. In this context, Wit said the most fundamental human rights as laid down in the two important general human rights treaties, the International Covenant and the European Convention of Human Rights, should be included.

Another right that should be considered, according to Wit, is the prohibition of slavery and the slave trade in all their forms

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