11 FEBRUARY 2017
PHILIPSBURG–Members of Parliament (MPs) on Friday began their deliberations on the draft national ordinance establishing general rules for the administrative enforcement of law during a meeting of the Central Committee of Parliament.
Calling it “an important piece of legislation,” Justice Minister Rafael Boasman told MPs that the legislation will help to relieve the burden on the Prosecutor’s Office, and take enforcement of certain things out of the hands of criminal justice system and put them in the hands of administrative officials in the various ministries.
He said due to the lack of enforcement in the criminal justice chain, some years ago the Ministry of Justice considered alternative forms of enforcement other than criminal enforcement.
Many departments have inspectors who would go out into the field and try to enforce the stipulations governing their respective departments and if they find violations they would take note of them, put them in a “process verbal” and it would have to go to Prosecutor’s Office for follow up for sanctioning and punishment. However, due to the limited capacity of the Prosecutor’s Office this follow up would either take a long time or never materialise.
Boasman said in some cases administrative enforcement is already embedded in some areas such as the Central Bank and the Public Health Inspectorate, where stipulations regarding sanctions, amongst other things, are already outlined. However, this is not the case in most areas, particularly those pertaining to road traffic and in economic areas. It is believed that the administrative authorities in ministries should bear more responsibility when it comes to violations.
Boasman said it is hoped that the draft would lead to a more efficient processing of violations and that by alleviating the burden the limited resources of the Prosecutors Office would be used more effectively.
The draft law is designed to be a guide for the harmonisation of existing laws and create a more uniformed procedure.
The draft national ordinance of Aruba was used as an example for St. Maarten’s draft. The minister said it is important that the rules and legislation that apply in the Caribbean part of the Dutch Kingdom are synchronised with each other as much as possible.
According to Boasman the administrative enforcement aspect of the law covers two issues: the enforcement of supervision and the possibility of imposing administrative sanctions.
The aim of the supervision aspect is to ensure that rules are being complied with in the correct way. Warnings can be issued during inspections and if a violation is noticed then information can be given regarding the correct procedure to be followed. For example, if inspectors notice that the layout of a building project is in conflict with the permit the inspectors do not have to wait until the infraction takes place before taking action. They can mention it in the early stages and offer advice and warning.
This is a preventative approach. Boasman said this can prevent a situation that will occur that is contrary to the law. If warnings issued falls on deaf ears then the legislation can be enforced.
Inspectors also have the authority to demand information as part of their inspection duties. They are also allowed to enter places that fall within their competencies with the exception of residences and places designated as residences.
As it relates to sanctions for violations, violators can be subjected to financial penalties or administrative fines. The financial penalty can be restorative and geared towards repairing the damage caused by the violation, while an administrative fine aims to punish the offender. There are other sanctions such as withdrawal of licences, but this is not the aim of the draft ordinance.
The administrative fine can run up to a maximum amount of NAf. 1 million. Higher amounts can be imposed, but this has to be established via a specific national ordinance. Penalties collected will go into the general coffers of government and will not be for the use of individual ministries. Penalties not collected after five years have to be turned over to the Receivers Office for collection.
Boasman said violators cannot be subjected to both the administrative enforcement law and the criminal justice system for the same offense. The administrative law has to be used first where applicable.
Once the draft administrative enforcement law is passed by Parliament it will have to be enacted by national decree. The ordinance will not go into effect at the same time for all ministries. Once each ministry is familiar with the content and has mechanisms in place and if necessary, training done, only then will it go into effect for that ministry.
Boasman said all ministries participated in the discussions that resulted in the draft ordinance and it was the based on the concerns of the ministries that it was decided that the implementation of the draft will not go into effect at the same time for all ministries.
In the meantime, Chairperson of Parliament Sarah Wescot-Williams said MPs will be given ample time and opportunity to delve into the details of the draft law, which she referred to as a necessary, but very technical piece of draft legislation. “The handling will not be delayed, but neither will Parliament rush through this draft law,” she said.
Wescot-Williams said she will break down the law in main parts, making the deliberations more manageable and constructive. The meetings, she noted, should in addition to providing the MPs the opportunity to amply debate draft laws and topics, also serve as informational exchanges for the public.
During Friday’s deliberations Wescot-Williams asked the following questions: how does the government administration plan to enforce compliance with existing laws? Who makes up the reports? How will persons be notified that they are or that they have acted in contravention of a law or rule? How far can government go with sanctions against citizens? She wanted to be sure that the draft eliminates bias in handling cases.
Several other MPs also commented on the draft and/or posed questions.
The meeting was adjourned to give MPs a chance to go over the draft before it is resumed.
Source: The Daily Herald, St. Maarten