THE HAGUE--The Kingdom Council of Ministers should be extremely careful when considering giving an instruction to the Governor of a Dutch Caribbean country and the autonomy of the countries should be respected as much as possible in the process of intervention.

 

Also, the Kingdom Government should not use the intervention instruction as an instrument to instil supervision on the policies of other countries.

 

That is the advice of the Council of State in response to the request of the Second Chamber of the Dutch Government earlier this year in relation to the Kingdom Council of Ministers issuing instructions to the Governors of the countries in the Caribbean part of the Kingdom based on the Regulation of the Governor.

 

The Second Chamber wanted clarity on the issuing of an instruction to Aruba in July 2014 to get its 2014 budget in order and to improve its financial management. The St. Maarten Governor received an instruction in September 2013 to order an audit of the integrity and functioning of the St. Maarten Government.

 

In light of the role of the Kingdom to guarantee fundamental rights and freedoms, legal security and proper governance, also referred to as the guarantee function in the Charter, the Kingdom Council of Ministers may make use of the tool to give the Governor an instruction.

 

“An instruction can relate only to the authority of the Governor as an entity of the Kingdom. An instruction may relate only to those cases where there exists a persistent or threatening severe structural violation of fundamental human rights and freedoms, the legal security and proper governance which cannot be addressed by the country in question,” observed the Council of State.

 

The countries’ autonomy should be respected as much as possible when an instruction is issued. There are a number of conditions.

 

First, the means of a country to address the fundamental rights and freedoms, legal security and proper governance should be taken into account.

 

Second, the mere shortcoming of a national entity should not result in a measure of the Kingdom.

 

Third, taking a measure is justified only when the country itself is not expected to redress the threatening intolerable situation.

 

The Kingdom Government also should consider whether an instruction based on the Regulation of the Governor will suffice or whether a more severe legal measure is needed in the form of a General Measure of the Kingdom Government (Algemene Maatregel van Rijksbestuur AMvRB).

 

According to the Council of State, the advantage of an AMvRB is that the Governor does not end up in an untenable situation because of the dual function the Governor has as official representative of his country and as representative of the Kingdom.

 

The Governor has a unique position, as he is not a part of the Dutch representation in the Dutch Caribbean countries, nor is he a member of the Dutch Government or a primary representative of the countries in The Hague.

 

“It is essential that both the national government and the Kingdom Government respect the Governor’s unique position and take action when he signals issues,” noted the Council of State in its advice, which was released on Friday.

 

The combination of the two functions of the Governor can be problematic in certain situations when he has to take a stand either as a representative of the Kingdom Government or as the official head of the national government.

 

The Governor may end up in conflict with the national government of which he is part, which will have adverse consequences for his position as a national representative and as impartial representative of the King.

 

On the other hand, the Governor will find himself in conflict with the Kingdom Government if he decides not to follow the instruction because in his opinion this instruction does not relate to his function as Kingdom representative and exceeds the authority of the Regulation of the Governor.

 

“This means that in these cases parties have to act extremely carefully considering the authority of the Governor.” The existing legal regulations do not contain conditions to prevent or redress the difficult position in which the Governor may find himself.

 

As for the possibilities of the country to appeal an instruction, the Council of State said this was possible only through the Kingdom Council of Ministers. “Other options do not seem to exist as long as there is no adequate dispute regulation which is based on the possibilities the Charter offers.”

 

The Council of State also addressed in its advice the intervention role of the Kingdom Government based on the guarantee function of the Charter. The Council stated that the Kingdom Government needed to take a reserved position where it came to forceful action and that this action should be taken only in extreme cases, as an ultimate remedy.

 

However, the Kingdom has the task to act in case a country severely neglects the fundamental rights and freedoms, legal security and proper governance. “The role of the Kingdom is not limited to intervention only after the fact that a country has structurally and relentlessly violated said values, resulting in an untenable situation.” In this sense, the Council of State spoke of locking the stable door after the horse has bolted (in Dutch: de put dempen als het kalf verdronken is).

 

At the same time, the Council emphasised that the guarantee function was not meant as an instrument of the Netherlands to keep supervision on the policy (decisions) of governments of other countries of the Kingdom.

 

“An appeal based on the guarantee function when the Netherlands does not agree with the policy of another country diametrically opposes the autonomy of each of the countries, which is secured in the Charter,” the Council stated.

 

The Daily Herald