Justice Minister sidesteps constitution: UP not in violation of campaign rules

POSTED: 07/29/14 7:16 PM

St. Maarten – “The United People’s Party is not in violation of any established campaign regulations pertaining to the placement of posters and other campaign paraphernalia,” said UP leader and Member of Parliament  (MP)Theo Heyliger in a press release yesterday, and in reaction to allegations made against the UP by other parties.

Party representatives met with Justice Minister Dennis Richardson about the general elections regulations and have filed an official written response on the subject to the Minister, the party said.UP’s discussion with the Minister centred on a gentlemen’s agreement, the party pointed out.

“The other parties not being ready came up with all kinds of proposed rules that in our opinion goes against the freedom of expression and was geared mainly at putting down UP’s campaign,” Heyliger said. In fact, Minister Richardson came out with his own traffic safety rules two days prior to Postulation Day.

“In the era of transparency and integrity, the Minister or Ministry, with all due respect, should have published rules at least six months prior to postulation day,” the UP leader continued.

“Further, the very Electoral Council should have been in place two years prior to election. Yet another important mechanism in the process left almost to the last minute,” Heyliger added.

“So stating that we have gone against the rules is not correct. What we are seeing here is a blatant attempt from the National Alliance Leader William Marlin to sidestep the real issues in our community and the crumbling of his leadership by pointing fingers, as usual, to someone else’s perceived misconduct,” Heyliger said about Marlin’s statement in the press (see related story).

“The UP campaign, unlike other parties, was planned a year ago, hence ‘We Ready’ slogan. UP even requested its public meeting permits way before postulation day. That’s how ready we are,” he said.

When reviewing the Minister’s memorandum, the UP said it was surprised at the blatant attempt by the Justice Minister to infringe on the freedom of expression anchored in the Treaty for Human Rights, the Constitution, and the National Ordinance on Public Manifestations.

“I am surprised that other political parties did not pick up on these violations and question the Minister. Instead, parties chose to spend their energies attacking UP when the freedom of expression of all of us has been put in check. UP did not sit back and let the regulations sit, we requested an explanation from the Minister and we are still waiting for an answer,” Heyliger said.

UP had informed the justice minister, since May 29, that the introduction of his memorandum, titled “Rules of the Game for Election Campaign 2014,” was “most surprising” as was the fact that the memorandum “seems to be driven by” the request of diverse party leaders and consultations held with them.

At the time of the Minister’s memorandum (May 23), only two political parties were legally and duly registered with the Electoral Council. As such, only two party leaders could have requested or could have been consulted by the Minister, the UP leader explained.

This action of the Minister at that time was deemed premature as most of the political parties have not yet registered and may not be considered as political parties in the sense of the Electoral law. Solely the opinions of registered and thus recognized political parties can be considered, if at all, UP stated in its letter of May 29.

Heyliger or the UP board were not consulted with prior to the issuance of the memorandum, the party said.

“It is clear that the undertaking by the Minister was stirred by one party, thus one party leader. This, on its own, weakens the undertaking as this is a one-sided approach from a biased premise that serves the interest of one,” the UP letter relayed to the Justice Minister.

“Now that same political party, to be blunt the Democratic Party, has more posters and campaign materials on light poles,” Heyliger added yesterday.

The Minister’s memorandum stated that “all campaign activities will be allowed to start on postulation day, July 11th, 2014” and “campaign activities is understood, but not limited to these, amongst other things: public meetings, flagging, placing of billboards, signs, rallies, parades, motorcades, advertising on radio, television and in newspapers and such as well as all manner of mass public relations activities in the public domain or for the general public accessible areas.”

That section seems to suggest that there is a belief that the freedom of speech/expression, anchored in the Treaty for Human Rights, the Constitution, and the National Ordinance on Public Manifestations can be set aside, or restricted by a Ministerial decision. Such an assumption has no legal bearing, and would result in a regulation which is null and void, the UP said.

A “further detailed response” from the Minister was requested, but never received by UP.

The decision to determine when campaigning is to commence is “in direct violation with the right of political expression, which cannot be restricted in the pre-emptive manner suggested. The Criminal Code provides amply for instances in which such right of expression are conducted in a malicious or slanderous manner. A regulation such as proposed by this memorandum lacks a legal basis, and cannot be based on the regulation that permits actions in light of public order,” UP stated in its letter to the Minister.

Use of wording such as “but not limited to these” suggests a discretionary power which the Minister of Justice is not granted by any applicable law, the UP said.

The National Ordinance on Public Manifestations dictates clearly in which instances the Minister of Justice may issue orders. Such orders are issued in the event a conflict occurs with public health, traffic, public unrest, the party explained. “This ordinance clearly indicates that the orders may be issued in the event that such event occurs, thus stipulating that orders may not be issued on a preventive basis, as is suggested hereby.”

The Minister of Justice furthermore has no legal authority to determine by ministerial decision, where political gatherings may be conducted or to designate specific areas for this purpose. This too is in violation with the rights granted and protected by the Constitution and the National ordinance of public manifestations, the UP said.

“The Minister’s attempt to regulate public meetings of political parties including taping of the public meetings by the police is an attempt at curtailing free speech. The suggested censorship here is a poor attempt to affect the freedom of speech in St. Maarten. That such a regulation would be illegal is discernible,” stated the UP letter to the Minister.

The Minister’s guidelines for billboards, signs and banners also have no legal basis. No applicable law provides the Minister with the authority to determine and set the size of posters and billboards.  This formulation suggests that such restrictions can work through for private property which again would constitute an unauthorized infringement on the right of freedom of speech and expression. Such a measure serves no public order objective and even if this was the case the Minister is not permitted to have a law of higher ranking derogate to his decision, the UP explained.

The Minister called for all public political activities to cease as of Wednesday, August 27, 2014, to allow for calm reflection of the citizens on voting on Friday, August 29, 2014. UP said in its letter to the Minister there is no applicable law that provides a basis for such a regulation to be established by the Minister. The heading “restriction on freedom of expression” here too is applicable.

“Regulations for the polling stations set out by the Minister, including police officers giving instruction, have no basis in the law. The Election Ordinance and the Election Decree already regulate the establishment and workings of polling stations,” the statement said.

“The Election Ordinance clearly dictates that changes to the law or further measures required for the execution of the law must be established by National Decree containing general measures LBHAM. The Minister is not permitted to alter or otherwise determine the manner in which conditions set forth by law are to be executed, through a Ministerial decree,” the statement continued. “Instructions by police officers as suggested herein have no legal basis within the framework of our laws.”

The Minister stated in his memorandum that in the interest of discouraging vote buying and vote selling the curtains will be removed from the voting booths and voters must refrain from registering their votes electronically, the party pointed out.

“Given the stipulations set forth in Article 12 of the Elections Decree, it must be clear that this proposal has no legal basis,” UP said in its letter to the Minister.

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