HOW DO YOU SOLVE DISPUTES BETWEEN KINGDOM PARTNERS?
With a mature dispute settlement mechanism
Disputes are of all times. Sometimes they are big, sometimes small. Sometimes of a principled nature, sometimes they deal with (small) earthly matters. Disputes can exist between people, but also between countries. There are also (strong) disputes between the countries within our Kingdom.
When it comes to disputes when making a certain choice, and a choice has to be made, the question is how you can best solve those disputes. Let us focus on disputes within the Kingdom, between the four countries: the Netherlands, Aruba, Curaçao and St. Maarten.
A possible model for dispute resolution is to use the principle that the majority decides. That is a numerical solution. The majority decides in a parliamentary system. So the majority in parliament has the power. If the parliament is part of a democratic legal order and there are independent and fair elections, then you can say that there is a political legitimacy for this method of decision making. That is not to say that every decision made in this way is also morally legitimized, but that issue is of a different order.
But what about the Kingdom Council of Ministers, which is dominated by the members of the Dutch cabinet? Aruba, Curaçao and St. Maarten each have one Minister Plenipotentiary and are by definition in the minority. Here too the majority decides, whereby the ministers of the Dutch cabinet speak with one mouth and therefore all vote the same. The majority have the power here (I will pass on the existing appeal procedure and the criticism of this). But is that fair? Perhaps principled choices regarding the Kingdom must be made, and there are fundamental differences of opinion about this. Of the four countries within the Kingdom still consider each other as equal, power play does not fit in. And that is especially true if disputes are of a legal nature.
If disputes relate to (the interpretation of) the Charter for the Kingdom of the Netherlands (or the interpretation of Kingdom Acts), then it is obvious to opt for an independent settlement thereof. Pushing through a certain interpretation because you have the majority (the power), shows little respect for the other – equivalent – countries. The Supreme Court – as the highest court in the Kingdom – enjoys authority, also on our side of the ocean. It should not be very difficult to add a Kingdom Chamber (a kind of constitutional section) to the Supreme Court. That Kingdom Chamber may be charged with settling disputes relating to the Statute (and to Kingdom Acts) and making a ruling binding on those countries for those disputes. This is a dispute resolution method that suits a mature Kingdom.
Article 12a of the Charter for the Kingdom of the Netherlands contains the following assignment to the four countries:
Under Kingdom Act, provisions are made for the treatment of disputes under Kingdom Law between the Kingdom and the countries.
Discussions on the dispute settlement have been going on for about eight years now. However, the subject is not that difficult, so other issues are playing, including probably the fear of giving up a bit of power. The Dutch government has to get over that now. After all, it is 2018. A Kingdom Act with which a dispute settlement is brought into being can take effect this year. But only if the will is there to really come to a solution.
Karel Frielink
(Attorney/Lawyer, Partner)
(7 June 2018)
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Also published on Curaçao Chronicle on 4 June 2018
