Different independent legal opinion affirms Governor’s Constitutional role

GREAT BAY--An independent legal opinion issued by Dr. Rycond Santos do Nascimento has concluded that the Governor of St. Maarten acted within his constitutional and legal authority in relation to the January 2026 matter involving the Chief of Staff at the Ministry of VSA. The opinion also concludes that while the Minister of General Affairs/Prime Minister had authority to impose an initial order measure, the power to suspend the civil servant rested with the Governor and not with the Prime Minister acting alone.

The legal opinion was drafted on March 30, 2026, in Willemstad and addresses public and legal discussion that arose after earlier advice prepared by Prof. dr. Van Rijn concerning the Governor’s role in the matter. In the opening pages of the document, Santos do Nascimento states that the prior advice was based on an incomplete presentation of the relevant facts and a legal approach that, in his view, did not accurately reflect the Governor’s constitutional position within St. Maarten’s legal order and within the Kingdom of the Netherlands.

The matter centers on events that began in January 2026, when the Minister of General Affairs/Prime Minister imposed an order measure on a civil servant who was formally employed under the Ministry of General Affairs, but who in practice worked as Chief of Staff to the Minister of VSA. According to the opinion, the order measure included denying the civil servant access to government buildings and government ICT systems, while also indicating that an investigation would be launched and that suspension was being considered. These events later gave rise to legal questions about who held the authority to act, whether proper procedure had been followed, and what role the Governor was required to play in relation to a proposed national decree of suspension.

The opinion reconstructs the sequence of events in detail. It notes that on January 13, 2026, the Minister of General Affairs/PM submitted a draft national decree for suspension to the Governor and requested that it be signed. The Governor did not immediately sign the decree. Instead, he indicated that the draft should not yet be effectuated and requested that a meeting of the Council of Ministers be convened to discuss the matter further. According to the opinion, this was followed by a meeting on January 16, 2026, during which the Council of Ministers decided to withdraw the earlier order measure and replace it with narrower restrictions concerning access to government buildings and facilities, while also seeking urgent legal advice into the facts and the legal framework.

The legal opinion places particular emphasis on the Governor’s constitutional role. It argues that the Governor is not a ceremonial signatory who must automatically endorse decisions placed before him by ministers. Rather, the Governor has an independent duty to evaluate whether a proposed decision is lawful, whether it rests on a proper legal basis, and whether it accords with the broader constitutional order. Santos do Nascimento writes that the Governor’s office carries both authority and responsibility, and that this responsibility requires an independent assessment before signing national decrees, especially where legality and good governance are at stake.

According to the opinion, this constitutional responsibility derives not only from St. Maarten’s internal legal order, but also from the Kingdom framework. The analysis points to the Governor’s dual role as both representative of the King and representative of the Kingdom government, while also functioning within the country’s constitutional structure. On that basis, the opinion argues that the Governor has a duty to weigh and assess the legality of acts placed before him and may not be reduced to a functionary who merely formalizes political decisions taken elsewhere.

Santos do Nascimento further concludes that the Governor’s authority in the civil service sphere is expressly grounded in law. The opinion refers to Article 45 of the National Ordinance Material Civil Service Law, which, according to the document, assigns the power to impose a suspension measure to the Governor by national decree. The opinion also notes that the Court in Civil Servants Matters, in a March 6, 2026 judgment, found that this authority belonged exclusively to the Governor and that there had been no valid written mandate or other lawful basis allowing the Governor’s authority to be exercised by another actor in this case.

While affirming the Governor’s role in suspension, the opinion distinguishes that issue from the earlier order measure imposed on January 7, 2026. On that point, the legal review concludes that the Minister of General Affairs did act within his lawful authority. The opinion notes that this conclusion aligns with the March 6, 2026 court ruling, which found that the Minister of General Affairs was authorized to impose the initial order measure. In this respect, the document makes clear that the legality of the initial order measure and the legality of a later suspension are separate legal questions and should not be conflated.

The opinion also addresses the institutional complexity created by the civil servant’s position. Although the individual was formally placed under the Ministry of General Affairs, she carried out functions as Chief of Staff to the Minister of VSA. According to Santos do Nascimento, this combination of formal placement under one ministry and substantive work within another created a situation of shared ministerial responsibility. The opinion argues that this overlap required careful handling and that any disciplinary or suspension process should have reflected that complexity rather than treating the matter as if it belonged exclusively to one minister acting in isolation.

A central part of the opinion is its criticism of the legal advice prepared earlier by Prof. dr. Van Rijn. Santos do Nascimento states that the earlier advice was not shared with him directly, but that from the conclusions attributed to it, he considers its reasoning deficient. He argues that the earlier advice did not rest on a complete and balanced presentation of the facts, failed to maintain a clear distinction between factual findings and legal qualifications, and appeared to adopt the perspective of the requesting authority too heavily without sufficiently incorporating the positions and responsibilities of the other constitutional actors involved.

The opinion goes on to challenge what it describes as a narrow and reductionist understanding of the Governor’s role. In particular, Santos do Nascimento rejects the idea that the Governor’s task is mainly to follow the judgment of ministers and sign accordingly. He argues that such a view strips the office of its constitutional substance and ignores that the power to sign national decrees is tied to an independent obligation to test legality and proper legal foundation. In the opinion’s view, the Governor’s power cannot be separated from the duty to exercise it responsibly and independently.

The document also underscores that the Governor’s office involves accountability. It notes that the Governor can carry legal and constitutional responsibility for acts taken in the exercise of office and that this further supports the view that the office cannot be treated as passive or automatic in function. The opinion contrasts the Governor’s position with that of the King, emphasizing that while ministers are politically accountable for governance, the Governor is not simply insulated from responsibility in the same way and must therefore actively assess the decisions in which he is asked to participate.

In its concluding sections, the opinion arrives at three main findings. First, it states that the earlier advice of Prof. dr. Van Rijn was materially incomplete and legally unconvincing in its assessment of the Governor’s role. Second, it confirms that the Minister of General Affairs/PM acted within his legal authority in imposing the order measure of January 7, 2026. Third, it concludes that the authority to issue a suspension decision and to take a national decree on that matter belonged to the Governor.

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