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Is Coho Act in conflict with the Statute of the Kingdom or not?
Is the draft governmental law for the establishment of the Caribbean body for reform and development contrary to the Statute of the Kingdom or not?
After studying the advice of the Council of State, many come to the conclusion that the far-reaching power that the Minister of the Interior and Kingdom Relations allocates to the body and himself touches the heart of the autonomy of Curaçao, Aruba and Sint Maarten. The creator of the bill, State Secretary Knops, is one of the few, if not the only one who thinks otherwise. This is evident from the letter he sent to the Lower House on Friday:
“I do not consider it pure in this letter to dwell in detail on the content of the advice and the analyzes that appear on this. In the run-up to this, I would like to note that the core of the legislative proposal remains intact in the advice. I find it important to note that, contrary to the suggestion that is aroused in some places, the bill is not fundamentally contrary to the Statute, according to the Advisory Division. The Division has several critical comments, both with regard to the effectiveness of the proposal and its legality. But she does not find any conflict of principle with the Statute. It is regrettable that this image has now been created. ”
Nuance
The question is whether the Council of State agrees with the minister’s firm conclusion. The summary that the Council of State has posted on its website (see at the bottom of this message) can at least be interpreted as a nuance of the acquittal that Knops grants itself:
“Precisely because of the proposal’s limited effectiveness, questions also arise about the relationship between this proposal and the Statute for the Kingdom. The individual responsibility of the countries is an important principle of the Statute. The same applies to the restraint that the Kingdom (and the Netherlands as the largest country) must exercise in limiting its own responsibility. If that responsibility is curtailed, it must be necessary and proportional. It is insufficiently clear from the explanation whether this is the case here, precisely because the powers of COHO are very far-reaching and, in the opinion of the Advisory Division, the countries themselves should take more responsibility for the reforms. ”
Diplomatic
The art of expressing a position diplomatically cannot be denied to the Council of State. You must be well-versed in constitutional law to understand exactly what the Council is saying here. Someone who can do that is prof.dr. Gerhard Hoogers, associate professor at the Department of Constitutional Law, Administrative Law and Public Administration at the University of Groningen, honorary professor of comparative constitutional law at the Carl von Ossietzky-Universität Oldenburg and an undisputed connoisseur of kingdom relations.
At the end of his opinion article published earlier today by Dossier Kingdom Relations, Hoogers gives a redeeming word: “By referring in the advisory report to this bill to an advisory report in which the Council of State had the final say, and by doing so in this context, the Council of State clearly understands what it thinks about it: in the opinion of the Council, the COHO Act is too far-reaching an intervention in the autonomy of the Caribbean the Statute. ”
Selective
In summary: Knops, who is (still?) In the denial phase, selectively shops in the advice to agree with himself. But the real message of the Council of State is nothing other than the way in which it places the Minister of the Interior and Kingdom Relations above the national administrations, which is in conflict with the Statute.
Read the opinion article by prof.dr. Hoogers
Read Knops’s letter to the House here
The summary of the advice of the Council of State
The Advisory Division of the Council of State of the Kingdom has issued advice on the proposal for a Kingdom Act on the establishment of the Caribbean body for reform and development (COHO). The bill was published by the State Secretary of the Interior and Kingdom Relations on March 24, 2021. As a result, the advice of the Advisory Division has also become public.
Content of the proposal
Since April 2020, Aruba, Curaçao and Sint Maarten have received financial support to limit the consequences of the Covid-19 pandemic for these countries. This support has been distributed to the countries in parts. Since May 2020, conditions have been attached to the support, which aim to increase the countries’ financial and economic resilience. The Kingdom Council of Ministers has set the condition, among other things, that the countries agree to the Kingdom Act on the Caribbean Body for Reform and Development (COHO). This proposal establishes the COHO. The COHO aims to promote that in Aruba, Curaçao en Sint Maarten reforms are being implemented in the areas of public administration and the rule of law, public finances and the economy. The reforms are laid down in country packages and then detailed in implementation agendas and concrete action plans. These plans of action are drawn up by the COHO. In the proposal, the COHO is assigned various tasks and powers to initiate, implement and monitor the necessary reforms.
Effectiveness of the proposal
The Advisory Division expresses its appreciation for the aid to the Caribbean countries. This help and reforms in areas such as governance and finance are needed. The Advisory Division therefore understands that support is linked to a reform program. But the chosen approach is not appropriate. In particular, the Advisory Division doubts whether this approach will lead to sufficient results. This is mainly due to the chosen structure and the powers of the COHO, which means that the countries have only limited responsibility for implementing their own reforms. In addition, the Minister of the Interior and Kingdom Relations has the role of the Minister of the Interior and Kingdom Relations, who largely directs COHO. This further limits the problem ownership of the countries. The overlap of powers between, among others, the COHO and the national administrations, but also between the COHO and the Board (Aruba) for financial supervision, can lead to a lack of clarity about who is responsible for what. Finally, the Advisory Division points out that the phasing out of the role of COHO in the countries is hampered by the chosen approach. Because the COHO takes over so many tasks, it is not likely that the countries will be able to continue the reforms on their own at some point.
Effectiveness in relation to the Statute
Precisely because of the proposal’s limited effectiveness, questions also arise about the relationship between this proposal and the Statute for the Kingdom. The individual responsibility of the countries is an important principle of the Statute. The same applies to the restraint that the Kingdom (and the Netherlands as the largest country) must exercise in limiting its own responsibility. If that responsibility is curtailed, it must be necessary and proportional. It is insufficiently clear from the explanation whether this is the case here, precisely because the powers of the COHO are very far-reaching and, in the opinion of the Advisory Division, the countries themselves should take more responsibility for the reforms.
How then?
The Advisory Division provides the government with a number of starting points for a better approach. Country ownership is an important aspect of this. The tasks assigned to the COHO should be geared to this. It should be borne in mind that these are three different countries, each with different challenges and needs. It is also important that the Caribbean countries are represented on the board of the COHO, although the Netherlands’ heavy stamp on this is understandable. Finally, it must be clear in advance which goals the countries must achieve.
Is Coho-wet nu wel of niet in strijd met het Statuut van het Koninkrijk?