Penal code for review to Constitutional Court

POSTED: 01/30/13 2:12 PM

GREAT BAY – Ombudsman Nilda Arduin has petitioned the Constitutional Court with a request to annul three articles in the penal code that was approved by the parliament on May 25 of last year and that was signed into law by Governor Eugene Holiday on December 13 of last year. The article that legalizes organized cock fights and the article that imposes higher sentences for crimes committed against tourists could both contravene the constitution, the Ombudsman said at a press conference yesterday afternoon.

It is unclear when the Constitutional Court will deal with the petition. Ombudsman Arduin said that there are no procedures in place for the process. “But we want to get it moving,” she said.

The decision by the Ombudsman is a setback for the parliament and for Justice Minister Roland Duncan. In May of last year, the parliament demanded that the minister add an amendment to article 539 that defines cruelty against animals as a crime. This amendment exempted “cultural, organized, structural activities” from punishment.

Ombudsman Arduin pointed out that cruelty against animals is deemed a crime and that the parliament had apparently overlooked article 665 that deems organizing animal fights without a permit is an offense. The Ombudsman said that the two articles (539 and 665) go hand in hand. “We indicated that based on literature and international standards, animal fights should be considered to be animal cruelty. Both articles should be taken off the books.”

The Ombudsman further petitioned the Constitutional Court to annul paragraph e. of article 2:289. This article specifies crimes committed against a tourist and imposes higher sentences.

“This article may be in contravention of equal rights of persons residing on the island,” the Ombudsman stated with a reference to article 16 of the constitution.

“Specifying a crime against a tourist who is on the island for recreational purposes goes against the system of the law,” Arduin said. “Increased sentencing for theft, as the basic crime in this article, is in general linked to the circumstances under which the crime was committed and not linked to the person against whom the crime is committed, the victim. A complication with the specification of a tourist is that the judge will each time have to define a tourist.”

The Ombudsman made with a simple question clear what the problem is with the article: “What about the business person, or the person visiting family who is also temporarily residing on the island?”

Arduin pointed out that it is questionable “if a crime committed against a tourist for economic reasons should be considered more severe than the same crime committed against other visitors or residents.”

Based on legal arguments, the Ombudsman has petitioned the constitutional court to review the article against article 16 of the constitution that guarantees equal treatment for all in St. Maarten.

The Ombudsman also found procedural issues for which it has asked a constitutional review. These remarks are not meant to achieve the annulment of the penal code but to get clarity about procedures.

Arduin said that the date the penal code was ratified is unclear. The law was signed on December 13 by Governor Holiday and sent to the Ombudsman on January 10. The law also has to be signed by Justice Minister Duncan and when that is done, the parliament has to be informed about it.

On January 22 the ombudsman notified the government that the ratification-date is unclear. Because the government used the date the governor signed the law in the final text, the 6-week period the Ombudsman has to petition the constitutional court would expire the next day. “Application of the new penal code is not hampered by the procedures at the Constitutional Court,” Arduin pointed out. This means that the law could still go into effect while the constitutional Court ponders the petition.

The Ombudsman furthermore pointed out that the numbering in the final text of the law that she received on January 10 differs from the text that was approved by the parliament on May 25 of last year. The articles have not been arranged in three books, and each book starts with its own numbering.

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