De Gouverneur Toespraken

Terug naar Toesprakenokt 14, 2011

Symposium On Checks And Balances In A Democracy And The Role Of The High Councils Of State

Delivered by His Excellency Eugene B. Holiday
at the Symposium of the High Councils of State

Good Morning,

It is of vital importance to inform and educate the people about the issues which are relevant for their governance. For it is only through a deeper knowledge of our system of government that the people can evaluate the state of governance relative to their rights and obligations. I am therefore pleased to share some remarks with you for the opening of this Symposium this morning. And as a result I hereby commend the Advisory Council, the General Audit Chamber and the Ombudsman, with the organization of this Symposium on the topic of “Checks and Balances in a Democracy and the role of the High Councils of State”.

The title in essence postulates that democracy as a system of government in the core includes checks and balances which in part are administered by the high councils of state. The title in fact considers the role of the high councils of state as a foregone conclusion.
In the next few minutes I shall against the backdrop of the Sint Maarten constitution examine the merits of that thesis.

Democracy in Sint Maarten - Defined
The title of the symposium “Checks and Balances In a Democracy and the role of the High Councils of States” addresses three topics. First the concept of democracy, second the concept of checks and balances the and third the role of high councils of state. A review of the literature indicates that these topics are interrelated and yields a substantial body of thoughts and perspectives.

For the purpose of my remarks I shall in keeping with its Greek origin, define democracy  as:  “governance by the people”. In the Sint Maarten context where the constitution stipulates that the Queen is the head of government, represented by the Governor, the system of government – without purporting to be complete - is broadly speaking characterized by an governance structure:

• where first, the people elect the members of parliament – or the legislature – as their representatives to make the laws that govern them ;
• where second, the members of parliament supports and holds accountable the members of the council of ministers - the executive  – for the execution of the laws ; and 
• where third, the executive arranges for the appointment of members of the courts – or the judiciary – to interpret the laws towards the resolution of disputes between the people .

Placed against the definition of democracy, namely “governance by the people”, above-mentioned description based on the constitution of Sint Maarten sketches a democratic system of government where the people of Sint Maarten directly and indirectly choose their government to govern them. 

Checks and Balances

The Sint Maarten constitution, in addition – in keeping with western democracies – provides for three branches of government and separates the powers of government over the three branches:

1. The Parliament passes laws;
2. The Government administers laws; and
3. The Judiciary interprets laws in disputes. 
a separation commonly referred to as the “trias politica”.

The separation of powers are further reinforced by the stipulations that members of any of the three branches of government – in principle  – may not at the same time be a member of one of the other two branches. 

Abovementioned description further demonstrates that the separation is not absolute; it is instead qualified by the principle of checks and balances. This means that the individual branches of government are connected to have constitutional control over each other. Namely, while there is a strict separation in the membership of the branches of government, there is a degree of sharing of powers among the branches of government. The system of checks and balances is thus designed to allow each branch to restrain abuse by another branch; this to prevent the abuse of powers and thus protect the rights and freedoms of the people.

As such it may be concluded that in line with the title of the Symposium checks and balances through the “trias politica” are embedded in the democratic system of government as regulated in the constitution of Sint Maarten.

Role of the High Council of State

This brings me to third and the main subject of this symposium the role of the high councils of state.
With three branches of government directly or indirectly chosen by the people to govern them and with built-in checks and balances through separation of powers between the branches to protect the rights and freedoms of the people it begs the question: is there a place for the high councils of state to administer checks and balances in Sint Maarten? 
In this regard it is important to consider that the government makes a large number of decisions every year; among which decisions:

• regarding health care;
• regarding the education of our children;
• regarding our pension;
• regarding the supply of drinking water;
• regarding our environment; and
• regarding our safety and security, 

all of which are laid down in policies and regulations. These policies and regulations have direct and indirect consequences for all residents of Sint Maarten. With the knowledge of the many decisions which government take consider that most of these decisions never come under the attention or view of the other two branches of government namely the parliament or the judiciary. Thus while these decisions de juro are subject to the checks and balances of the “trias politica” they de facto take place without application of its control mechanisms. Supplementing the system of checks and balances of the “trias politica” to ensure that mentioned decisions are made appropriately and in accordance with good governance principles such as fairness and equity is therefore critical; critical to protect the rights and freedoms of the people as stipulated in the constitution.

As the final adviser to the government the Council of Advice, based on its review of draft legislation , can through its advice play an important role as a feedback mechanism providing guidance on the legality and fairness of policy-intentions.
Similarly the general audit chamber through its report on the effectiveness and legality of government’s income and expenditure can play a critical role fostering integrity and improvement in the financial administration and decisions of government and as such protect tax-payers.
The ombudsman, in addition to mediating and influencing a positive result for an individual in relation to a decision of government, through its investigation of cases can make recommendations that prevent reoccurrence of certain problems.  In short the advices of the high councils contribute to the improvement in the quality of government decisions and in achieving of justice in some cases. Moreover, because the advices of the high council of states are public they constitute an excellent source of information and aid for the public in analyzing the decisions of government.

Concluding remarks

In conclusion, the constitution of Sint Maarten provides for a system of government with embedded checks and balances in the form of the “trias politica” plus high councils of state. Within that system the advisory council, the general audit chamber and the ombudsman through their independent and professional reviews, investigations, and advises have a valuable role to play in implementing and supplementing the system of checks and balances of the “trias politica”. 

This symposium on the role of the high councils of state is therefore welcome. It will hopefully in addition to my remarks discuss this topic from its different perspectives and emphasize the need for effective functioning high councils of state. As such I look forward to hearing the views of the keynote and featured speakers for the symposium respectively and hope that this is the first of what is to become an annual symposium.

I hereby wish you fruitful proceedings this morning.

Thank you and God bless you!