Advice constitutional expert Van Rijn backs Gumbs cabinet “Motives for dissolving parliament are absolutely legitimate”

POSTED: 10/5/15 6:00 PM


Arjen van RijnProf. dr. mr. Arjen van Rijn. Photo

St. Maarten – The Gumbs cabinet is fully within its rights to dissolve the parliament and the governor has to sign the national decree to this effect. This is the opinion of Prof. dr. mr. Arjen van Rijn, extraordinary professor constitutional law and constitutional reform at the University of Curacao. The Gumbs-cabinet asked Van Rijn for an opinion about the situation that developed last week Wednesday when parliament passed a motion of no confidence, after which the cabinet invoked article 59 of the constitution to dissolve parliament and to call new elections on December 8.

From Van Rijn’s advice it appears that Governor Holiday considers it undesirable to dissolve the parliament and that for this reason he has not signed the national decree so far.

Van Rijns’ advice deals with two questions: is the government entitled under the factual circumstances to use its right to dissolve the parliament and does the governor have the authority to refuse signing the national decree to dissolve the parliament.

In short, Van Rijn says that the government has every right to dissolve the parliament and that the governor has no other option but to sign it.

The parliament has the authority to send the government home at any moment, based on article 33, paragraph 2 of the constitution. But that authority does not exist in a vacuum, Van Rijn points out: “Opposite the right of the parliament to take away the confidence in the cabinet or in individual ministers, stands the autonomous authority of the government to dissolve the parliament and to call new elections.”

The rationale behind the right to dissolve parliament is “that the government must be enabled to present a conflict with parliament to the electorate and to give them the opportunity to express their opinion about it,” Van Rijn writes in his advice. “The unique thing about the right to dissolve is therefore that it is meant in particular and that it may be exercised in particular in situations where the parliament has withdrawn its confidence in the incumbent cabinet. When the parliament hits, the government has the possibility to hit back.”

Van Rijn furthermore points out that the right to dissolve has a preventive effect “and is a useful weapon to prevent that the parliament withdraws its confidence in the cabinet all too quickly. It could be that those who withdraw their confidence return weakened or not at all after the elections. The result of an election is by definition uncertain. The confidence rule and the right to dissolve are therefore two sides of the same medal. Together they create checks and balances. In the end this benefits the system’s stability.”

In the Netherlands it is custom to tune the estimate whether there is a need for a fresh start with the parliament, But Van Rijn says that doctrine agrees that such a custom can never be leading: “This is about an original, autonomous right that belongs to the government and that cannot be limited by the parliament. It is important to note that this right is unconditional. Neither the constitution nor the State Regulations of the Caribbean countries impose in their phrasing or in their explanatory notes any limitation on the use of the right to dissolve.”

In essence, Van Rijn concludes, legally it does not really matter for which reason the government decides to dissolve the parliament, “as long as there is a reason of such a convincing nature that the government wants to take political responsibility for it.”

Here, the analysis gets to the heart of the matter: “Your central motive to dissolve is that an answer is needed to the time and again practice of renegading and splitting. In the situation at hand again several parliamentarians have distanced themselves from the government without any motivation and they also split from the party with which they took part in the elections. This is a phenomenon that occurs since 10-10-10 almost every year. It has a destabilizing effect and negative consequences for the integrity and the quality of the administration and for the functioning of the democratic system. Considering this it is your (the government’s – ed.) opinion that the voters must be able to make a clear statement whether Members of Parliament have the confidence of the population.”

Van Rijn concludes that, unlike the parliamentarians who supported the motion of no-confidence, the cabinet had “absolutely legitimate and convincing arguments in the current situation to support the dissolution of parliament.”

The analysis refers to article 61, paragraph 3 of the State Regulation: “The members vote without ‘burden’” – which is to say that parliamentarians cast their vote without outside influence. “This article cannot prevent that parliamentarians follow their own course in the parliamentary relationships, up to the ultimate consequence that they split from their party. The voter has in the interim no influence on this and is only able to call parliamentarians to account at the next elections. When the behavior of parliamentarians has such fundamental consequences that in the opinion of the government the continuity and the quality of the administration are put at risk, the government has every right to subject this behavior to the opinion of the electorate.”

Van Rijn calls this “a very pure way of acting” and notes that the unconditional character of the right to dissolve permits this.

Then there is the question whether the fact that there is already a new parliamentary majority for a subsequent government stands in the way of exercising the right to dissolve. Van Rijn says that this is not the case. “The right to dissolve is an autonomous right that forms the counterweight of the parliament’s right to send the government home. When a parliamentary majority could prevent the exercise of the right to dissolve by presenting an alternative coalition, it would harm this autonomous right. This would thwart the rationale of the right to dissolve, namely the giving of the autonomous authority to the government of giving a conflict back to the electorate. In the context of checks and balances between government and parliament the government must maintain under all circumstances the freedom to do this. The presence of a majority for an alternative government cannot result in the fact that the government is no longer allowed to exercise its right to dissolve.”

Concluding, Van Rijn writes in his advice: “In the factual situation at hand there are no circumstances that stand in the way of the exercise of the right to dissolve by your government. The motives on which the dissolution are founded, area absolutely legitimate. The circumstance that the parliament has a new majority for a subsequent government cannot harm the authority of your government to dissolve.”

Van Rijn’s advice also addresses the role of the governor in the conflict. Based on a remark in the beginning of the advice, it appears that the governor considers dissolving the parliament “undesirable.”

“The governor does not have independent authorities,” Van Rijn notes. “He has to do what the ministers consider necessary. The head of the government only has the right to be consulted, to advise and to warn. The opinions of the ministers however prevail at all times. After all, they are the ones who give democratic account for the actions of the government.”

Van Rijn repeats that this also applies to the cabinet’s decision to dissolve the parliament: “They are responsible for the decision. The governor does not have an independent authority in this respect. There is no reason to assume that this would be different with a decision to dissolve the parliament than it would be with every other decision the government takes.”

Article 21 of the regulation for the governor gives the governor the authority “not to ratify an administrative measure when he considers this measure to be at odds with international or kingdom law or with interests that are the responsibility of the kingdom.”

When the governor uses this authority, Van Rijn states in his advice, “he is obliged to inform the kingdom government immediately.” The kingdom government in turn gets an opinion from the Council of State and reviews the governor’s objections.

Based on Antillean constitutional history, Van Rijn notes, “It is certain that the governor has to be extremely reluctant with exercising this authority. In the sporadic cases when a governor refused, it always led to a serious crisis in the relationships and to the determination that such a situation should never happen again.”

“My conclusion is that the governor has no authority not to ratify the national decree to dissolve the parliament. The governor has to sign, after, if necessary, he has used his right to be consulted, to advise and to warn.”



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