Justice Minister Duncan keeps denying Americans their rights – Row continues over Friendship Treaty

POSTED: 02/6/12 2:18 PM

St. Maarten / By Hilbert Haar – The Court in First Instance has ordered Justice Minister Roland Duncan to take a decision about the admission of three Americans before February 27. The Americans called on the Dutch-American Friendship, Commerce and Navigation Treaty of 1956, but the Justice Minister maintains that the treaty has no direct effect for St. Maarten. The courts in Aruba and St. Maarten have time and again ruled that the treaty does apply; Prime Minister Sarah Wescot-Williams contested this two years ago already, after the Executive Council had responded to an inquiry from the St. Maarten Hospitality and Trade Association (SHTA) that the treaty did not apply “because St. Maarten is not a country yet.”

On July 12, 2010, when her Democratic Party was in the opposition, Wescot-Williams told this newspaper: “I am baffled by the answer the Executive Council has given to the SHTA about this subject. The government apparently thinks that it can duck the system. The treaty is applicable and when people want to call on it, the government will have to look at it.”

But the justice ministry sticks to its guns (no pun intended), even after the American consul in Curacao got involved. In a letter dated May 5 , 2011, consul Valerie Belon reminded Minister Duncan of a meeting in November 2010 about the treaty, whereby she had pointed out that St. Maarten “as part of the Kingdom of the Netherlands is bound by the agreement.”

In diplomatic language that is hard to misunderstand, Belon wrote to Duncan that she had received several complaints from American citizens “who believe their applications for residence permits are not being handled in a manner consistent with the treaty.”

On December 19 of last year, the Court in First Instance ruled on two Friendship Treaty-cases and both rulings went against the justice minister. The plaintiffs are Tina Marie Abbott and Claire Lorraine and Shai Talmi. Abbott is the co-owner and director of Michael’s Day Cruises N.V.; the Talmis are directors of Wired Sailor N.V. In both cases, the justice minister has been ordered by the court to take a new decision within ten weeks after the ruling; the deadline is therefore February 27.

Abbott had already been granted a permit for temporary residence four times when she applied for admission by law on July 13, 2010. The government took its time: on April 1, 2011 it denied the request. Abbott appealed to the court on May 8, the government filed its defense motion on June 9, and the court finally heard the case on November 21.

The Talmis had an even weirder experience with the speed the government handles immigration requests. The couple filed a request for admission by law on January 5, 2010. The government did not respond. On June 23, the Talmis filed an appeal against the fictitious refusal to grant admission. Again, the government did not react. On January 3, 2011, almost a year after the first request, the court voided the fictitious refusal and ordered the government to take a new decision within two months. On April 8, the government denied the request, and on May 20, the Talmis filed an appeal with the court.

In both cases, the justice ministry used the same argument: the Friendship Treaty has no direct effect in St. Maarten. It erroneously bases this position on the fact that the Common Court of Justice voided a May 17, 2010 ruling from the Court in First Instance. That ruling was about the government’s refusal to grant Brian Matthew Leblanc, an employee of The Crew’s Nest in Simpson Bay, a director’s license. The appeals court declared the appeal inadmissible, because as an employee, Leblanc does not need a director’s license. The court therefore did not go into the question whether the Friendship Treaty has direct effect for Americans in St. Maarten.

Civil law attorney mr. Wim van Sambeek brought the row over the Friendship Treaty to the attention of the Ministry of Foreign Affairs in The Hague last year already. He asked the ministry to take a position on the issue, and pointed out that the American consul had already done so in the above quoted letter of May 5, 2011.

“If the ministry does not take a position, I would like your comment on the fact that the United States did take a position on the treaty’s direct effect. If you stick to your position I assume that your ministry is of the opinion that the United States stepped out of line,” Van Sambeek wrote last year.

But Lisette Neuerburg, who responded to Van Sambeek, did not bite. She maintained that disputes about the Treaty’s direct effect are a matter for the courts.

“When the verdict (….) has become irrevocable, the government will have to abide by it.”

This is exactly what the justice ministry in St. Maarten does not do. Minister Duncan falls back of the national ordinance on admission and expulsion and on the argument that the appeals court overruled the May 17, 2010 The Crew’s Nest-ruling. But our current Prime Minister Wescot-Williams told this newspaper on July 12, 2010 in very clear language the following: “The Dutch-American Friendship Treaty applies in St. Maarten and it supersedes local legislation.”

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