WILLEMSTAD - Former Prime Minister Etienne Ys finds the initiative to create a Caribbean Reform entity in the current situation as a result of Corona very welcome. The countries have been hard hit by Covid19 and according to Ys it goes without saying that without external financing it will be an impossible job to recover on its own in the near future.
But then some work needs to be done to refine the concept of the Kingdom Act that gives the entity a legal basis. The cooperation that is envisaged with the draft Kingdom Act must indeed fit within the relations between the countries as laid down in the Statute and also taking into account the rule of law applicable within each country.
As far as Ys is concerned, this planning is a task of parliament and the governments in the countries concerned.
Independent administrative body
The entity is established as an independent administrative body under Dutch law. It is not clear why an entity was chosen under Dutch law and not under Aruban, Curaçao or Sint-Maarten law.
One of the drawbacks to the current choice is that in practice this probably leads to confusion when it comes to the applicability of legal rules. This also means that all kinds of steering instruments within the administrative body belong exclusively to the Minister of the Interior and Kingdom Relations. According to Ys, the question is whether this fits with an entity that operates supranationally.
The former prime minister thinks it is obvious to regulate the establishment, structure, governance and legal personality of this entity in the Kingdom Act itself. This creates a tailored entity that is better able to operate adequately within the various jurisdictions. It is therefore desirable that countries also contribute to the design of this entity. Just like the Financial Supervision Council and the Coast Guard.
Political direction
The management of the entity is now arranged in such a way that the Minister of the Interior has become the supervisor and not the Kingdom.
The entity is almost entirely politically controlled by the Minister of the Interior and Kingdom Relations, who in most cases does not require the approval of the Kingdom Council of Ministers or of the countries for his management decisions.
It is therefore not a joint body as envisaged in the Statute. And that, writes the former prime minister, while the entity is the main subject of the intended consensus constitutional law.
Such an entity should - as the Statute aims - be directed by the countries and where this is desired by the Kingdom Council of Ministers or by the countries jointly: in good consultation with colleagues in the Kingdom context, says Ys.
Initiate and implement
The projects that the entity can initiate and carry out are regulated by kingdom law, but the entity is also allowed to do a lot on its own initiative without deciding with or getting permission from anyone.
The entity may therefore, under the direction of the minister or otherwise, perform administrative acts in a country without prior participation by the country concerned and without this entity subsequently having to account for the democratic organs of the country.
On the other hand, the country is obliged to fully cooperate with the entity. The question is, therefore, as what kind of body does the entity act in that country, as an administrative body or as a private institution? In this way, the entity, and the minister also co-rule in a country by way of directions without having to worry about democratic and rule of law principles.
The butcher and his meat
The entity is responsible for both supervising and executing projects that fall under the same heading. According to Ys, it goes without saying that an institution cannot simultaneously supervise and carry out implementation activities related to the same area of activity. Nor would that institution be able to report objectively on its own activities.
Ys therefore proposes to delete the provision in the draft text on initiating, promoting and implementing projects and to have all projects carried out carried out by the countries themselves, with or without the support of the entity.
Countries can also always agree with the minister that a specific project, such as an audit, must be carried out by an independent third party.
