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Friday, October 03, 2014

Changing the people or changing the system?

By Roeland Zwanikken , filed under: Civil

An opinion letter addressing the question whether there is solution for the objectionable national sport of ship jumping or ‘flip-flopping’ by MP’s, once they are elected..

On 10-10-2014 Sint Maarten will exist four years as an independent Country within the Kingdom of the Netherlands. During those four years, we had three (3) governments (the fourth one is to be anticipated within soon) and there have been five (5) MP's that declared themselves independent/separated themselves from the party on which slate they were elected. The above means that, on average every (approximate) 9,5 months, a MP jumps ship, in many cases with extreme consequences and in many cases the step is eventually taken lighthearted and without giving very convincing or valid reasons.

In practice, (extreme and personal) power games are being played by MP’s who already have declared themselves independent in the past and also by MP’s who consider or threaten their parties to do the same. Today it may concern an MP that is on the DP slate, tomorrow it may be an MP on the UP, US or NA slate. Noteworthy is the fact that these personal power games are not warranted and cannot be justified based on the number of votes these (five) MP’s got; none of them earned a seat by themselves.

Jumping ship is (therefore) a form of deceit of the electorate. It is also not democratic for the following reasons. By casting a vote, a voter communicates that he has confidence in (i) a candidate and (ii) a slate of a political party. The voter does take into account the risk that his preferred candidate may not gain a seat in Parliament, however the voter also trusts on the assumption that if the candidate of preference is not chosen, that the party on which slate the preferred candidate was listed, will benefit from this vote. Therefore voters, by casting a vote, express their confidence, not only in a candidate but and also in a party.

At the moment of voting, voters do not and can or should not reasonably expect or anticipate that their preferred candidate on a certain party slate will or intends to (suddenly and more than often light hearted) jump ship during his or her term of election. In principle this is not the proper thing to do; only in extreme case there may be a justifiable reason for same. To further illustrate the above, by taking a closer look at the most recent ‘flip-flop Houdini act,’ the following rhetoric questions can be raised;
- Would the 378 voters that voted for Minister de Weever (“De Weever”) also have voted for this candidate, if they would have known before Election Day that he would jump ship (within a month after the election)?
- Would the 2334 voters that voted for the DP Party also have voted for DP Party if they would have known before Election Day that De Weever would jump ship shortly after the election?

It is easy to add another rhetoric question to this list: will De Weever be the last MP that will jump ship (during this governing term)?

The national sport of ship jumping or flip flopping (in a lighthearted manner) leads to unstable governments, distrust of the electorate and - last but not least - is bad for the investment climate (why invest, if the investor cannot rely on a trustworthy and stable government?). It is also not democratic, because it was not the expressed wish of the voter, that his or her preferred candidate or one of his or her colleagues on the same party slate would jump ship. To anticipate on ship jumping is in essence really the same as playing Russian roulette. In other words: why organize an election, while we may as well roll a dice to determine how power will be distributed. The often heard arguments that “this is the dynamics of democracy” and “this is the way democracy works” are not convincing at all. To the contrary: jumping ship or flip-flopping can in all reason not be considered to be part of a democratic process.

What to do? There are in essence two options: change the people or change the system.

The current system is not bad (it works in Holland, where political parties have developed ideologies and hardly ever jump ship), however I have little to no confidence that (on the short term) it will be possible to change the mindset of the people (read the MP’s, once elected) in such a manner that it will be realistic to make the coalition system function properly (within soon). Therefore, focusing on changing the system seems more productive. After four years’ experience, it is clear that the Dutch system (coalition system or parliamentary democracy) doesn't work on this side of the ocean, or at least not on Sint Maarten.

Maybe Sint Maarten should consider the following suggestion for a (more U.S. or French like Presidential) system. This suggested system will in any way create more stability and it will immediately end the objectionable personal power games of (potential) ship jumpers.

An election procedure with two phases:
- Phase 1: during this phase, it will be established which two parties get most votes and only these two parties will participate in the second phase;
- Phase 2: the electorate will not only elect members of Parliament, but will also vote for their preferred Prime Minister. Candidates for the position of Minister-President will have to be screened (successfully) before the first phase of the election process;

The party that gains most votes in phase 2 will be in government (in principle for four years) and will also deliver the Prime Minister. The Prime Minister will be exclusively authorized to appoint and dismiss his or her cabinet of Ministers. The system will also ensure that there is one big opposition party (and thus the opposition will not be fragmented). Furthermore, the laws should stipulate that if government no longer enjoys a majority in Parliament, it will be obliged to call for new elections (in other words: to form a new government on the same elections results should be explicitly forbidden).

Another alternative to end the objectionable practice of ship jumping is to implement statutory rules that forbid that an MP elect leaves the party, on which slate (s)he was elected, unless (s)he gained the seat by getting sufficient votes to pass the electoral threshold. Other MP’s are free to leave, but are in that case obliged to hand over the seat to the candidate next in line on the party slate on which he was elected. The often heard argument against this alternative is that it may be unconstitutional. I am not necessarily convinced that this is a valid argument. After a decision is taken to head into a direction like this, it must be possible that juridical technocrats work out a way that is also acceptable from constitutional point of view.

Disadvantage of both suggestions above, is that there will be more power with the political parties (which may lead to abuse). This is true, however this interest should be weighed against the big advantage that it creates much more stability in government and that it will make an abrupt end to the reprehensible practice of opportunistic and light hearted ship jumping.

The aim of this opinion letter is not give readers or government the impression that I have the ultimate wisdom and/or that I pretend to know it all better. The aim of this letter is to make clear that this continuous practice of ship-jumping is in fact a problem that should be recognized and addressed. I hereby assume that most people in Sint Maarten are more interested in having a democracy, rather than a country run by a dictator or by the highest bidder. I also assume that the majority of the electorate is not interested to having a country that is run by administrators that – once they are elected – act in a basically ad random and thus unpredictable manner.

The real aim of this opinion letter is to initiate a constructive discussion in order to find a solution of a problem that, in my view, can and should no longer be ignored. As chances are small that (on the short term) the people (read: mindset of the MP’s, once elected) will change, I am convinced that it is in the interest of more stability, that regulatory changes to the system will be made (at least before the next election). In principle we have four years to work on this…

Roeland Zwanikken
Partner at BZSE Law Attorneys at Law/Tax advisers