Council of State building.
‘~ Says Council of State in annual report ~
THE HAGUE–A swift approach towards the solving of disputes between the countries of the Kingdom benefits the relations within the Kingdom, the Council of State noted in its 2015 annual report, which was published on Tuesday. According to the Council, it could be useful to look into what forms of dispute-settling already exist and how they have worked in practice.
Disputes should not be allowed to continue for too long, as this would affect the effective advocacy of mutual affairs within the Kingdom, the Council of State stated in the report under the heading “The Council and the Kingdom.”
Referral was made to the conclusion of the Dutch Parliament in 2010 during the process of dismantling the Netherlands Antilles, complemented with the input of the Caribbean countries, that conflicts could evolve between one or more of the new countries.
“Conflicting opinions or interests are not a shortcoming, but a characteristic of a constitutional relation such as the Kingdom in which the mutual contacts continue to be increasing and the cooperation becomes more intensive,” according to the Council.
It noted that again in 2015 there was much attention for the Dispute Regulation (“Geschillenregeling”) for the Kingdom, or rather the lack of it. The Parliaments in the Kingdom are urging to have a Dispute Regulation established, but so far the governments of the four countries in the Kingdom have not been able to reach an agreement on the format or the scope of such a regulation.
“The Council of State of the Kingdom observes that a part of the difference in opinion seems to be caused by questions as to what forms of dispute-settling are possible and what the advantages and disadvantages are of the different options. It is also insufficiently clear what kinds of disputes are exactly referred to.”
According to the Council, the existing provisions in specific areas were not taken sufficiently into consideration. The Council pointed out that there is experience with the settling of disputes that evolved as part of the Kingdom Law on Financial Supervision for Curaçao and St. Maarten. In this law, the involved countries opted for a dispute resolution via a so-called “reinforced Crown appeal.”
The Council of State of the Kingdom has a role in the settling of disputes in the Kingdom Law on Financial Supervision, as it is the authority to prepare a draft decree in the appeal decision for the Kingdom Council of Ministers. The “reinforced Crown appeal” regulates that the Kingdom Council of Ministers cannot deviate from the draft decree if it is based on legality grounds. “That part of the draft decree is a factual ruling that binds the Crown.”
A similar form of a “reinforced Crown appeal” was agreed in the case of the 2010 Cooperation Regulation regarding the guaranteeing of the Plans of Approach for the national tasks of Curaçao and St. Maarten.
In 2015, it was also agreed to have a similar structure for disputes between the Netherlands and St. Maarten as a result of the cooperation agreement in the area of the promotion of integrity. Another example of the option of a “reinforced Crown appeal” was sealed in the agreement between the Netherlands and Aruba regarding the supervision on Aruba’s finances.
The Council pointed out that the number of disputes that had been handled by the Council since 2010 based on the Kingdom Law on Financial Supervision and the Cooperation Agreement to guarantee the national tasks had been very limited.
Only once, in 2012, was a decision drafted in a dispute between the Netherlands and Curaçao regarding the financial supervision. The 2015 annual report did not mention the current appeal of Curaçao, as this case is currently taking place.
The Council noted that in all other cases where an appeal was filed in the past few years, the involved parties were able to find a timely solution for the dispute and an appeal procedure proved unnecessary. “A Dispute Regulation seems to have a positive disciplinary effect in practice to speed up the reaching of an agreement between parties.”
The annual report further mentioned the advice the Council had rendered regarding the issuing of instructions to the Governors by the Kingdom Council of Ministers. The Second Chamber of the Dutch Parliament in 2015 had asked the Council for an advice on processing of the July 2014 instruction to Aruba Governor Fredis Refunjol to hold off on the signing of the Aruba Government’s 2014 budget until after an in-depth investigation.
The Council repeated in its annual report that the Kingdom Council of Ministers has to exercise caution in its interventions and that forceful action by the Kingdom should be an “ultimate remedy.” At the same time, the Kingdom’s guarantee function should be utilised only if an untenable situation has been lasting for quite a while.
In that advice, the Council also requested attention for the position of the Governor. It was noted that the combination of the Governor’s two functions, as representative of the Kingdom and as head of the country’s government, could be tricky.
“As Kingdom body the Governor may have to act against a country government of which he is part. Given his double role, it should be prevented that the Governor is placed in an impossible situation through the issuing of an instruction.”
Also, the instruction based on the Regulation of the Governor cannot be the ground to award new authorisations to the Governor. For that to happen, a General Measure of the Kingdom Government based on article 51 of the Charter is required.
The September advice regarding the issuing of instructions was discussed during the bi-annual consultation of the Council of State of the Kingdom with the Advisory Councils of Aruba, Curaçao and St. Maarten in Curaçao in October last year.
The central theme of this consultation was good governance. As all four Advisory Councils contribute to good governance by rendering advice to their respective governments, it was considered useful to see how they can assist each other in giving content to this issue while taking the local situation into account.
Source: The Daily Herald Swift resolving of disputes benefits Kingdom relations’