MINISTER KNOPS FORCED TO PUBLISH ADVICE TO COUNCIL BECAUSE DOCUMENTS WERE LEAKED AND POSTED. YOU CAN FIND THE LEAKED DOCUMENTS BELOW WITH ENGLISH TRANSLATION
On 11 March, the Council of State of the Kingdom issued advice on the Kingdom Act establishment of the COHO. In a consultation between State Secretary Knops and the three prime ministers of
the Landen was agreed on 18 March, as under the law with advice from the Council
of State is customary, that the advice is confidential and is only published when
the bill and the joint response to it from the four countries to the House of Representatives
and the States are sent.
Because the confidential advice is apparently already leaked and widely distributed, which we
Regret, State Secretary Knops, on the advice of the Council of State and in coordination with
the countries have now published the advice.
The core of the bill remains intact in the advice of the Council of State. In the opinion
states that it is logical for the Netherlands to attach conditions to the granting of
financial support. Furthermore, it is good to note that, different from different media
it is suggested, the bill is not at odds with the Statute. It is common for the
Council of State takes a critical look at laws and we will discuss this with the countries.
In the meantime, we have been working with Curaçao, Aruba and Sint Maarten for a number of months now
to shape the implementation agendas based on the country packages. Hereby becomes
concrete progress has been made. This happens, as did the prime ministers of all three countries before
have indicated, in good cooperation with the countries. Hope that good cooperation
we will also continue to prepare the response to the advice of the Council of State.
DOCUMENTS With English Translation: Criticism of the Council of State for COHO public at an early stage. Mar 24, 2021: THE HAGUE – According to the Council of State, the Kingdom Act on the Caribbean Body for Reform and Development (COHO) is too binding. The confidential advice was sent to the prime ministers of Curaçao, Aruba and Sint Maarten on Friday, but would not be made public until later. But because the document had already been leaked, State Secretary Knops decided to publish the advice today.
Advice
The Council of State issued the advice on 11 March. The document contains seventeen pages of comments and remarks. “Because the confidential advice has apparently already been leaked and widely distributed, which we regret, State Secretary Knops has now published the advice and the underlying bill on the advice of the Council of State and in coordination with the countries,” said the Ministry of the Interior. .
“The Division does not consider the manner in which this approach has been elaborated in the proposal to be appropriate. The positioning and range of tasks of the COHO and the relationship with other actors lead to uncertainties about the division of responsibilities and powers between different actors. This weakens the countries’ own responsibility and thus their commitment ”, states the Council of State.
The advisory body is not emphatically against setting conditions for the financial support and calls conditions “self-evident”. But the Council of State does have doubts about a number of parts of COHO.
Question marks
Firstly, the division of responsibilities and powers between COHO and national governments and between COHO and the Financial Supervision Council is unclear. “The COHO thus has far-reaching powers that also belong to the national government. This creates competing responsibilities and powers, ”is the criticism.
In addition, the advisory body doubts the independence of COHO as a Dutch independent administrative body because it mainly falls under the miniseries of the Interior and Kingdom Relations (BZK). The powers of the Minister of the Interior and Kingdom Relations are hardly limited in this respect because he is above both COHO and the CAS country concerned.
The Netherlands also has too much scope to change interim conditions for further support. Finally, the countries have too little influence on the composition of the COHO board. This is in line with the objections of the CAS countries.
Because COHO has a consensus kingdom law, the Statute must be observed, according to the Council of State. “The starting point of the autonomy of the countries and in particular the restraint that the Kingdom government, and the Netherlands as the largest country, must exercise in limiting the countries’ own responsibility is an important factor in this.”
Conclusion
The Council of State concludes: “On the basis of the considerations given in this advisory report, the Division is of the opinion that the proposal for a Kingdom Act is inadequate. She concludes that the proposal requires further consideration and therefore cannot be submitted in this form to the parliaments of the countries of the Kingdom. ”
But the Reich Council of Ministers must ultimately determine what to do with the advice. They can choose to ignore the criticism of the Council of State or they can amend the bill. It is striking that COHO is already operational on an informal level.
Read the full advice here:
I / K The Hague, 3 March 2021
By Cabinet mission of 10 November 2020, no.2020002307, Your Majesty, on the recommendation of the Secretary of State for the Interior and Kingdom Relations, submitted for consideration to the Advisory Division of the Council of State of the Kingdom the proposal for a Kingdom Act containing rules concerning the establishment of the Caribbean body for reform and development (Kingdom Act Caribbean body for reform and development), with explanatory memorandum.
The bill proposes the establishment of the Caribbean Body for Reform and Development (COHO). The COHO aims to promote in Aruba, Curaçao and Sint Maarten that reforms of an administrative nature are implemented, sustainably sustainable public finances are realized and the resilience of the economy is strengthened, including the rule of law embedding thereof.
The proposal that the Department was offered for advice in an earlier instance only saw Curaçao. In a letter dated November 18, 2020, the State Secretary of the Interior and Kingdom Relations informed the Department that agreement had also been reached with the government of Aruba about alignment with the proposal. In doing so, the State Secretary indicated which changes will be made to the proposal and the explanatory notes in connection with it. In a letter dated 5 January 2021, the State Secretary announced that Sint Maarten had also joined and the amendments to the proposal that this had led to. In the absence of a consolidated text, the Division takes the proposal as presented on 10 November 2020 as a starting point.
At the request of the government of Curaçao, supported by Aruba and Sint Maarten, the government has submitted a number of questions to the Department. These questions will not be answered separately, but will be discussed in the advice below.
The Advisory Division of the Council of State appreciates the intentions expressed with this proposal to provide aid and assistance to the Caribbean countries. It endorses the need to provide support to the countries on the one hand, and to initiate necessary reforms to improve public finances, the economic structure, education and the functioning of government on the other.
The proposal focuses not only on the nature and extent of the reforms, but also identifies the powers and resources by which the reforms are to be implemented. The Division does not consider the way in which this approach has been elaborated in the proposal appropriate. The positioning and range of tasks of the COHO and the relationship with other actors lead to uncertainties about the division of responsibilities and powers between different actors. This weakens the countries’ own responsibility and thus their commitment.
The Division does not consider it advisable to compensate for a lack of implementation power of the countries by making COHO largely responsible
TO THE KING
drawing up and implementation of action plans. This does not strengthen the implementation power of the countries and makes the phasing-out of the scheme more difficult. It is therefore doubtful whether, with the currently chosen design, it is reasonable to expect that a reform program will lead to successful results in the short and long term. Partly as a result of this, questions also arise about compatibility with the constitutional structure of the Kingdom as laid down in the Statute for the Kingdom of the Netherlands (hereinafter: the Statute), in which the autonomy and individual responsibility of the countries are important starting points.
On the basis of the considerations given in this advisory report, the Division is therefore of the opinion that the proposal for a Kingdom Act is inadequate. She concluded that the proposal should be further considered.
Content of the proposal and reading guide
a. Content of the proposal
Aruba, Curaçao and Sint Maarten have been receiving liquidity support from the Netherlands since April 2020 to limit the consequences of the COVID-19 pandemic for the population, business and employment in those countries. To that
liquidity support, in the form of loans to the Caribbean countries, has been subject to conditions since May 2020, with the aim of increasing the countries’ financial and economic resilience.
For the provision of the third and subsequent tranches of liquidity support to Aruba, Curaçao and Sint Maarten, 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 (Kingdom Act COHO), which proposal is now advice.
The proposal extends to the institution of the COHO. The COHO aims to promote reforms of an administrative nature in Aruba, Curaçao and Sint Maarten, to achieve sustainably sustainable public finances and to strengthen the resilience of the economy, including its embedding in the rule of law. The reforms to achieve these goals are laid down in so-called country packages. These land packages are agreed as mutual arrangements on the basis of Article 38, first paragraph, of the Statute by the Netherlands and the three Caribbean countries separately. In the country packages, the subjects, projects, programs and measures are worked out in outline with which those goals must be achieved. The country packages are then worked out in an implementation agenda by the COHO and the Ministers of General Affairs of the country concerned. This will often ultimately result in concrete action plans to be drawn up by the COHO.
The proposal assigns four tasks to the COHO. The first task is to support and supervise the development and implementation of projects, programs and measures by government bodies and public companies of the countries. The second task of the COHO is to initiate and promote projects and programs related to the topics described in a national package. Third, the COHO provides grants on request to citizens and private legal entities, including public companies, and the COHO itself can participate in the share capital of private law entities, including public companies. Finally, the COHO has the task of introducing stricter financial supervision, if appropriate, on some or all of the expenditure of the country concerned.
The proposal assigns various powers to the COHO for the performance of these tasks. For example, the COHO can demand data and information from government bodies and companies. It can provide financial resources, expertise and implementation capacity and can screen governments and public companies. In addition, the COHO can develop and manage projects and commission the supply of goods or services, as well as participate in share capital. 10
If the COHO is of the opinion that insufficient cooperation is being given to the reform measures, the COHO can suspend assistance. It can also advise the Council of Ministers of the Kingdom to use a supervisory instrument – provided for in the Statute – if measures are insufficiently implemented. In addition, it will be given the authority, in accordance with the Council of Ministers of the Kingdom, to institute stricter financial supervision if a country makes insufficient effort to comply with obligations under the COHO or the Financial Supervision Act of Curaçao and Sint Maarten or supervision (R (A) ft).
The Minister of the Interior and Kingdom Relations is authorized to issue instructions to COHO with regard to an action plan for the development and implementation of a project, program or measure by government bodies and with regard to the initiation, promotion and implementation of projects. In addition, the Minister of the Interior and Kingdom Relations may, on his own initiative, impose stricter financial supervision on part or all of the expenditure of one of the countries if this is required by compelling interests.
b. Reading Guide
The Division then discusses the effectiveness of the proposal (point 2). The relationship between COHO and existing institutions (national government, C (A) ft, Minister of the Interior and Kingdom Relations) is central to this. The Division also discusses the need to arrive at clear conditions for the expiry of the consensus kingdom law. Subsequently, the Division examines the relationship of this proposal, taking into account the problems of effectiveness and proportionality, to the Staff Regulations (point 3). The Section then discusses which elements are necessary for a credible and feasible approach to the necessary reforms (point 4). Finally, the Division makes a further comment on the unclear legal framework regarding data processing (point 5).
Effectiveness
a. Introduction
The Department appreciates the intentions expressed with this proposal to provide aid and assistance to the Caribbean countries. This implements article 36 of the Statute. The Division endorses the need to provide support to the countries on the one hand and to initiate necessary reforms to improve public finances, the economic structure, education and the functioning of the administration on the other. The Division also appreciates the positive fact that the proposal does not only provide for the appointment and prescribing reforms considered necessary, but also aimed at actually providing support to the countries in their realization. Furthermore, the Division considers it appropriate in itself that the framework for this is laid down in consensus Kingdom legislation on the basis of Article 38, second paragraph, of the Statute. This expresses the fact that the Netherlands as well as Aruba, Curaçao and Sint Maarten endorse the desire and necessity to implement reforms and to work together to this end.
The Division considers it self-evident that the liquidity support is linked to a reform program. Conditional financial support is in line with the international practice of, for example, the IMF and the European Union, which is also characterized by lending under (strict) conditions, including the structural adjustment facilities aimed at structural reforms. Incidentally, the Division notes that it is unclear which money flows will go through the COHO and which will take place directly between the Netherlands and the country concerned. It is also not clear to what extent there will be loans or gifts.
The proposal focuses not only on the nature and extent of the reforms, but also indicates the way with the powers and resources by which the reforms must be implemented. On this point, the proposal encounters several objections that could seriously undermine the effectiveness of the proposal. The Division notes the following in this regard.
b. Relationship between COHO and national government
It is common for countries to be financially supported, not only with a view to the proper use of the resources involved, but also with a view to achieving certain policy goals, such as improving public finances and strengthening the economic structure. In addition, forms of monitoring are usually also provided. If the pre-agreed conditions are met, the country will receive the financial support that has been promised.
In this usual approach, the conditions attached to the aid have an impact on decision-making in the country concerned. After all, that decision-making is framed by the conditions that have been set. However, this does not interfere with (constitutional) domestic relations. In other words, the granting of aid has no formal impact on the tasks and powers of the relevant domestic institutions. This method has also been followed in the aid that has so far been provided to countries of the Kingdom at various times. A recent example of this is the Growth Agreement with Curaçao in 2019.
A different approach has been chosen for the present proposal. The basis for the measures to be taken is formed by the so-called land packages. These country packages are not yet concrete in terms of the goals to be achieved. The country packages are then worked out in an implementation agenda by the COHO and the Ministers of General Affairs of the countries. This will often ultimately result in concrete action plans, to be drawn up and in a number of cases also to be implemented by the COHO.
This means that aid is not based on a clear plan on which the aid recipient countries are judged. To this extent, there is an open commitment, whereby there is insufficient clarity in advance about the conditions set for the granting of support. This entails the risk that countries feel less responsible for fulfilling the conditions, resulting in less achievement of the intended goals, or that new conditions are constantly being set during the reform process to actually obtain the promised support.
This risk is reinforced by the combination of tasks assigned to the COHO. The Division establishes that the tasks of the COHO go beyond supporting and supervising the implementation of the country packages by the national administrations. The powers of the COHO also go further than is necessary for the performance of those tasks. For example, the COHO has the task of establishing an implementation agenda with the national government.
It is then unclear whether the national government is still independently authorized to set such an agenda. In addition, the COHO has the task of initiating, promoting and implementing projects and programs and can draw up action plans for this. Furthermore, the COHO has the authority to order the supply of goods or services and to participate in share capital, without the government in question having control over or over this.
has options to stop this. This also applies to granting
and providing grants to citizens and shareholdings in legal entities, even true
it concerns public companies.
In addition, the COHO can cooperate with institutions and bodies of institutions of the European Union and other international law organizations and with institutions and bodies of institutions of the Netherlands and other countries within the Kingdom with development, financing, supervision or general administrative tasks. Where appropriate, the COHO will draw up a collaboration protocol with the relevant institution or organization. In the alternative set-up outlined by the Division in point 4, whereby more responsibility is left to the countries, it is obvious that they too could enter into such cooperation.
The COHO thus has far-reaching powers that also belong to the national government. This creates competing responsibilities and powers. When it comes to drawing up the implementation agenda, a joint responsibility arises.
With the design chosen in the proposal, it is not sufficiently clear who is responsible for what. After all, both the COHO and the national government are responsible and competent. The Division considers this problematic: COHO and national administration can thus get in each other’s way, but a situation can also arise in which COHO and national administration point to each other. This is all the more urgent now that COHO and national government are accountable to different authorities. Moreover, a consequence of this set-up may be that the national government will experience less “ownership”, will feel less responsible for the implementation of the country package and will refer or refer to the COHO in case of problems. That chance is even greater now that the countries have little influence on the composition of the COHO board.
These ambiguities and risks are not removed by the provision that in the performance of its duties the COHO cannot exercise powers that are vested in a government body under the land law of a country.25 The Division understands the intention of this regulation, but notes , that this increases the uncertainty noted above rather than removing it. After all, when it comes to powers pertaining to the realization of administrative or economic reforms, these will without doubt belong to (organs of) the national government.
From this point of view, Article 4, second paragraph, means that no powers are vested in the COHO. The question here is when there are powers that are vested in a government body. This uncertainty is certainly true when it comes to the powers of COHO regarding subsidies and participations.
A strict interpretation of this paragraph could mean that various powers that the proposal allocates to the COHO cannot be exercised at all by the COHO. A flexible interpretation would quickly mean that Article 4, second paragraph, does not prevent the exercise of the powers given in the proposal, but that this paragraph has no real meaning.
c. Ratio to R (A) ft
One of the tasks assigned to the COHO in the proposal is to establish stricter financial supervision of one of the countries in agreement with the Council of Ministers of the Kingdom. This authority of the COHO applies not only if a country makes insufficient effort to fulfill the obligations imposed on the country concerned by or pursuant to the proposed Kingdom Act, but also if, in the opinion of the COHO, the country makes insufficient efforts to to comply with the obligation by or pursuant to the R (A) ft. The stricter supervision is exercised by the C (A) ft. If a compelling interest requires this, the Minister of the Interior and Kingdom Relations may, in agreement with the Council of Ministers of the Kingdom and after the COHO and the Financial Supervision Council have been heard, determine that stricter financial supervision will be instituted if a compelling interest requires this.
In the R (A) ft, financial supervision is regulated by the Council of Ministers of State in Aruba, Curaçao and Sint Maarten. The obligations for the countries are laid down in those statutory laws. It also provides that the C (A) ft supervises compliance with obligations arising from the R (A) ft in application of the rules set for this purpose in the R (A) ft. One of the tasks of the C (A) ft is to assess whether a country makes sufficient efforts to comply with the obligations imposed by or pursuant to the R (A) ft. This raises the question why it is necessary that the COHO also has the authority to assess whether the countries make sufficient effort to fulfill their obligations under or pursuant to the R (A) ft. After all, the consequence of this is that two authorities supervise compliance with the standards in the R (A) ft, the COHO and the C (A) ft.
The Division further points out in this regard that assigning the same task to two organs is the risk
ico of ambiguity and divergent judgments. It is unclear how the stricter supervision on the basis of the proposal and the issuing of an instruction on the basis of the R (A) ft relate to each other. Moreover, the independent position of the C (A) ft enshrined in Article 7 R (A) ft and the division of responsibilities as laid down in the R (A) ft with regard to the supervision of compliance with the budgetary standards.
These consequences are reinforced by the possibility for the Minister of the Interior and Kingdom Relations to impose stricter supervision in agreement with the Council of Ministers of the Kingdom. After all, in the R (A) ft it is up to the C (A) ft to assess whether there is a situation in which there is reason to issue an instruction, and it is then up to the RMR to act on the basis of advice from the C (A) ft decide to issue a clue. These powers for the Minister of the Interior and Kingdom Relations interfere with the powers of the C (A) ft laid down in the R (A) ft.
Increased financial supervision leads to an approval regime for all or part of the expenditure incurred by a country. According to the proposal, this approval regime need not be limited to expenditure incurred in the context of the implementation of the country packages, but can extend to all expenditure of a country. Moreover, the approval regime goes much further than the budget supervision regulated in the R (A) ft and relates to intended expenditure. On the basis of the R (A) ft, the C (A) ft only supervises the balance of the public finances and therefore leaves the choice with regard to which expenditure or income measures are taken to the governments of the countries. The explanation does not explain why this form of supervision is necessary in addition to the existing supervision based on the R (A) ft.
Finally, the Division points out that the countries will have to report to two authorities on virtually the same subject. In the view of the Division, this places too heavy a claim on the already limited implementation capacity of the countries.
The Division can imagine that it must be possible to take measures if problems arise in the implementation of the country packages. It is then obvious that COHO will take such measures. If, regardless of this, there is a reason for the desire to increase the effectiveness of the R (A) ft, provisions should be made for this in the R (A) ft itself, instead of the mixing of the two tracks currently proposed .
d. Relationship COHO – Minister of the Interior and Kingdom Relations and government
According to the proposal, the COHO appears to perform its tasks with a high degree of independence. Large parts of the Independent Administrative Bodies Framework Act have been declared applicable. This does not alter the fact that on a number of important points the proposal gives the Minister of the Interior and Kingdom Relations the authority to issue instructions or to limit or complete the powers of the COHO. For example, the Minister of the Interior and Kingdom Relations can determine how the COHO should spend financial resources made available to the COHO and the provision of resources can also be stopped or suspended if – in short – the Minister of the Interior is of the opinion that the country in question makes too little progress.
Furthermore, the Minister of the Interior and Kingdom Relations may, within the outlines described in a national package, after consultation with the Ministers concerned, give the COHO an instruction regarding an action plan for the development and implementation of a project, program or measure by government bodies. , as well as provide guidance on how to initiate, promote and implement projects. 32
The above shows that the COHO functions to a large extent under the direction of the Minister of the Interior and Kingdom Relations. Two restrictions apply: an obligation to consult with the relevant minister (s) of the country concerned, and the requirement that the minister must remain within the outlines described in a national package. The Division notes the following about this.
Although the Minister of the Interior and Kingdom Relations has an obligation to consult with the relevant minister (s), it is not necessary to reach an agreement.
With regard to the country packages, it should be noted that they contain little or no concrete measures. Nor are concrete objectives, for example in the field of public finances, included. This means that the condition that the minister must remain within the outlines described in a national package also has little effect on norms.
The foregoing means that the powers of the Minister of the Interior and Kingdom Relations are hardly limited. They cover the entire palette of drawing up action plans, drawing up, initiating and implementing projects, programs and measures,
as well as its financing. This places the Minister of the Interior and Kingdom Relations not only above the COHO, but also above the government of the country concerned. The powers assigned to the minister thus infringe the responsibilities and problem ownership of the countries.
e. Phasing out of the scheme
In principle, the law will expire after 6 years. At the request of the Netherlands or one of the countries, this period can be extended by 2 years each time. The Netherlands and the countries can also agree that the law will lapse earlier. However, neither the bill nor the explanatory memorandum deal with the question under what circumstances and on the basis of what facts extension or early termination could be appropriate. This is relevant because in the preparation of this bill of law the relationship between the Netherlands and the other countries was not always equally good and there appears to be a suspicious attitude from both sides. In such a situation it is all the more important that it is clear on what grounds it will be decided that the objective of the proposal, namely to implement reforms, to achieve sustainable finances and to strengthen the resilience of the economies in the countries. reached.
This question arises with this proposal because it differs from previous partnerships between the Caribbean countries and the Netherlands. In those cases, all responsibilities remained with the (national) government. In the proposal, however, a number of responsibilities are shifted to the COHO and it must therefore be clear when these will be transferred back to the (national) government. Before this can be done, sufficient concrete and tangible results must be achieved. It is particularly important here that the living environment of the population of the three countries has structurally improved. Improvement of the living environment of the population in a concrete sense is necessary in order to maintain support for the deployment of COHO and thus the intervention from the Netherlands, and to increase the confidence of the population in the administration.
f. Conclusion
In the light of the foregoing, the Division considers the proposal in this form to be problematic. The positioning and range of tasks of the COHO and the relationship with other actors lead to uncertainties about the division of responsibilities and powers between different actors. The Division does not consider it advisable to compensate for the lack of implementation power of the countries by making the COHO (jointly) responsible for drawing up and implementing action plans. This does not strengthen the implementation power of the countries, weakens their commitment and own responsibility and makes the phasing-out of the scheme more difficult. It must therefore be doubted whether, with the currently chosen design, it is reasonable to expect that a reform program will lead to success in the short and long term.
In the light of these comments, the Division recommends reconsidering the chosen structure.
Relationship with the Staff Regulations
a. As an introduction
The Statute prescribes “mutual consultation” when it comes to a consensus kingdom law. The Division establishes that these consultations have taken place and that the governments of Aruba, Curaçao and Sint Maarten have agreed to submit this proposal to the Division. The Division therefore assesses the proposal as it was presented to it, namely as a consensus kingdom law.
b. Statutory principles
As can be seen from the foregoing, the approach chosen by the government carries risks to the effectiveness of the reforms. This is partly due to the fact that the national institutions themselves bear only limited responsibility for implementing the reforms. The powers of the COHO overlap with the powers of the national governments. This undermines the effectiveness of the approach. In addition, the COHO is largely under the direction of the Minister of the Interior and Kingdom Relations, who in a certain sense will be placed above the governments of the countries.
The above aspects are also relevant from the point of view of the Staff Regulations. The fact that in this specific case there is a consensus kingdom law, and therefore a political compromise, does not detract from the principles that underlie the constitutional structure of the Kingdom. The starting point of the autonomy of the countries, and in particular the restraint that the Kingdom government, and the Netherlands as the largest country, must exercise in limiting the countries’ own responsibility is an important factor in this respect.
In that light, the Division notes that the explanation does not sufficiently show why the limitations of this own responsibility, as currently foreseen, and the far-reaching influence of the Minister of the Interior and Kingdom Relations are necessary.
and proportionate in the light of the principles of the Staff Regulations. The earlier observation of the Division is important in this regard that the powers of the COHO go beyond what is necessary for the performance of its tasks.
The Division advises further consideration of the bill on this point.
c. Binding to international economic and financial agreements As described above, the COHO can cooperate with institutions and bodies of institutions of the European Union and other international law organizations. It does not appear from the proposal that prior to the decision to enter into such cooperation, consultations will take place on this subject with the country concerned. The Division realizes that formally it is the COHO, and not the country concerned, that makes these agreements. However, given the tasks of the COHO, it is obvious that the country concerned is also actually bound by these agreements. The explanation does not reveal how this relates to the fact that the Caribbean countries can declare that they do not wish to be bound by an international economic and financial agreement.39
The Division recommends going into the foregoing in the explanation.
d. Powers of the Governors
On the basis of the bill, the COHO can, in certain cases, submit to the
Council of Ministers to advise the Government of Ministers to make provision under the Statute.40 The explanatory memorandum rightly states that this proposal does not interfere with the powers of the governor on this point. After all, the governors have independent powers in the context of their task of supervising, among other things, compliance with statutory laws, including a statutory act such as the one to which a proposal is made here.41 In view of the fact that the Governor will therefore also have to supervise the compliance with this law, however, the powers of the Governor and the COHO on this point may overlap.
As noted above about the relationship between the C (A) ft and the COHO, such an overlap of powers entails the risk of ambiguity, overlapping powers and divergent judgments. In concrete terms, this may mean, for example, that the Governor adopts a national ordinance or national decree, and therefore does not make use of his authority not to establish it due to conflict with higher law, while the COHO
in the Information of 17 September 2015 from the Division on giving directions to the Governors of the countries in the Caribbean part of the Kingdom, item 1b (W04.15.0112 / I / Vo).
39 Article 25, first paragraph, of the Staff Regulations. It is clear from Article 24, paragraph 1, that these are not only agreements with other powers, but also agreements with international organizations.
40 This may include, in particular, powers of substitution and destruction under Articles 50 and 51 of the Statute.
41 Article 20 et seq. Of the Regulations for the Governor of Curaçao, the Regulations for the Governor of Aruba and the Regulations for the Governor of Sint Maarten.
national legislation sees reason to request a provision under the Statute.
The Division recommends that further attention be paid to this in the explanation and that the proposal be amended if necessary.
What is a need for?
The points above discussed bottlenecks and possible undesirable consequences of the currently proposed approach that entail risks for its effectiveness. This begs the question for a different approach, which has fewer such risks, which could be a better approach. Below, the Division provides a number of considerations in this regard and outlines some contours.
a. Credible, achievable and flexible
It is a great gain that the proposal pursues the three goals (reforms of an administrative nature, sustainable public finances and strengthening the resilience of the economy) in conjunction. At the same time, it must be recognized that these goals can be at odds with each other and can (temporarily) frustrate each other. For example, strengthening economic resilience and the implementation of reforms, certainly in the shorter term, can lead to tension with the objective of achieving sustainable and sustainable public finances. Dimensions and coordination are therefore necessary to arrive at a balanced approach. This requires flexibility.
In this regard, the Division notes that the proposal does not provide for adjustment of the budgetary standards in the Rft. This raises the question of whether sufficient flexibility has been built into the law to arrive at the required dimensions in practice. The Division considers it desirable from this point of view to consider all the measures that will apply (in any case the liquidity support, the R (A) ft and the present proposal).
Furthermore, the Division considers the ‘ownership’ and commitment of the countries to be crucial for the success of this approach. This is the only way to establish fruitful cooperation and achieve sustainable results that will last even after the program has ended. In recent decades, the implementation power has been problematic in the implementation of the various measures.
As discussed above, the Division does not consider it useful to try to compensate for this lack of implementation power by making the COHO (partly) responsible for drawing up and implementing action plans. This does not strengthen the implementation power of the countries. The responsibility for drawing up and implementing their own action plans should lie with the countries themselves. This does justice to the individual responsibility of the countries.
This is also in line with the practice and experiences of international organizations such as the
IMF and the corona crisis recovery tool established by the
European Union. Strengthening the implementation power of the countries themselves is one of the most important goals of the measures to be taken, which is in fact threatened to be thwarted by too great a role for the COHO.
This does not detract from the fact that the COHO has an important role to play in strengthening the necessary administrative strength of the Caribbean countries. It is therefore important that the COHO can support the country governments in drawing up projects, programs and measures and in the implementation of the projects, programs and measures to which the countries agree. At the same time, this requires countries to be open to COHO’s proposals and to make the requested and necessary efforts to implement the necessary reforms and strengthen administrative strength where they can. This may also be required of the countries where the financial resources for the relevant projects are also provided through the COHO.
Only if the COHO can fulfill its important role and the Caribbean countries accept that role will fruitful cooperation between the COHO and the national governments be possible. Linking liquidity support and support in tranches to the achievement of the targets is an important incentive to actually achieve those targets. If the implementation of projects, programs or measures is insufficient, the COHO can suspend support. In the unlikely event that this does not lead to the intended results and it turns out that, despite this support and appropriate use of the power to suspend, insufficient progress is being made to increase the administrative strength and fulfill the responsibilities independently in the long term, more compelling measures will eventually be taken, whether or not initiated by the COHO, are inescapable.
In view of this, the Division considers it appropriate that the following tasks are assigned to the COHO:
a) Adopt the countries’ implementation agenda and action plans for the implementation of projects, programs or measures, with clear performance requirements linked to the mobilization of financial resources over time;
b) Monitoring the progress of implementation by the countries;
c) Support by technical and other assistance, for which the COHO has its own budget;
d) Monitoring the achievement of the performance requirements, enabling the financial resources to be provided.
In this context, the composition and appointment of the board also deserves
COHO attention. In view of the role of the Netherlands and the role of the COHO, a heavy Dutch mark on the COHO is understandable. However, support, ownership and commitment of the countries as well as insight into the local situation can be increased by representation on the board of the COHO that finds support from the Caribbean countries. The importance of support among the countries increases as the tasks of the COHO overlap more with tasks that also belong to the national administrations. According to the proposed scheme, a demonstrable affinity with the Caribbean part of the Kingdom is required from one of the members of the COHO. The question is whether this will sufficiently ensure the necessary support among the Caribbean countries.
c. Clear frameworks
Obviously, support in the way outlined is not without obligation. It goes without saying that conditions are attached to (financial) support and that compliance with those conditions and the (progress of) implementation of the measures to be taken are closely monitored. The COHO has an important role to play in this, consisting of monitoring the progress of the plans and programs, providing support in the sense of technical assistance and releasing financial resources as required.
g the action plans are implemented.
But that does require a clear approach. The Division points to the practice in IMF credit programs, as well as in the context of the European Union, where additional financial support is linked to pre-agreed performance indicators. It must be avoided that countries have to focus on moving targets in order to obtain support and financial support. That risk is great with the approach now being followed, in which the measures in the country packages are formulated very openly and the COHO has a lot of room to further elaborate on this. This is further reinforced by the intervention options of the Minister of the Interior and Kingdom Relations (whether or not in response to reactions from the States General). It is therefore important to clearly lay down the conditions for granting support and not to make it possible for the COHO or the Minister of the Interior to unilaterally adjust the conditions in the meantime (except in special, pre-defined circumstances).
With an approach as outlined above, the concurrence outlined in point 3b between the proposal and the R (A) ft, between COHO and Cft can be easily avoided. The COHO can then focus on monitoring and support through technical assistance and release financial resources as the action plans are implemented. The C (A) ft continues to focus on maintaining budget balance.
d. The importance of differentiation
The proposal concerns all three Caribbean countries of the Kingdom. Each of these countries has its own history and its own administrative culture. There are also differences with regard to, for example, the implementation capacity and reforms already implemented, for example in response to the Growth Agreement (Curaçao), protocols on financial supervision (Aruba), the liquidity support after hurricane Irma (Sint Maarten) and the experiences with the cooperation with the World Bank established facility for reconstruction. The challenges are partly the same, but it is important to recognize that the reform agenda is different for each of the three countries. The COHO must therefore be enabled to differentiate in the performance of its tasks. This also requires that there is sufficient knowledge within the COHO board to be able to assess the situation in each of the countries.
As explained above, the submitted proposal only concerns Curaçao. Therefore, no attention has been paid to the foregoing in the explanation. In the letter about the expansion to Aruba, it is stated on this point that the backgrounds differ per country and that the explanation on this point will be supplemented, but that these adjustments will be minimal because the differentiation will mainly be addressed in the different country packages. This point is not mentioned at all in the letter about the connection of Sint Maarten. The Division considers it insufficient that the required differentiation is only fundamentally addressed in the country packages.
Data protection
Under the bill, all government bodies and public companies are obliged to provide data and information on request that the COHO needs for the performance of its duties. It is not clear from the explanation whether this also concerns personal data. If this is the case, the GDPR applies to the processing of these personal data by the COHO. After all, it is located in the European part of the Netherlands and has legal personality under Dutch law.
In this light, the Division notes that provisions on data processing, including the designation of a controller, are missing from the proposal. In addition, the explanation does not discuss the possible transfer of personal data by the COHO to the Caribbean countries. If this is the case, the GDPR regime regarding transfer to third countries applies.
Since the European Commission has not taken an adequacy decision with regard to the Caribbean countries of the Kingdom, and the government has indicated that it cannot be readily assumed that such a level of protection can be offered in the Caribbean countries, the controller must offer appropriate safeguards. In doing so, data subjects must have enforceable rights and effective means.
The Division advises to go into the explanatory notes on the point of processing and transfer of personal data and to amend the proposal where necessary.
Conclusion
The Division endorses the chosen approach whereby aid to the Caribbean countries is linked to a reform program to make the economies and public finances of the countries healthy, to strengthen public administration and the conditions of the populations of Aruba, Curaçao and Sint Maarten.
However, the Division does not consider the way in which this approach is elaborated in the proposal appropriate. The positioning and range of tasks of the COHO and the relationship with other actors lead to uncertainties about the division of responsibilities and powers between different actors.
The Division does not consider it advisable to compensate for the lack of implementation power of the countries by making the COHO (jointly) responsible for drawing up and implementing action plans. This does not strengthen the implementation power of the countries, their own responsibility and ownership are affected and the phasing-out of the scheme is made more difficult.
It is therefore doubtful whether, with the currently chosen design, it is reasonable to expect that a reform program will lead to successful results in the short and long term. Partly because of this, questions also arise about the compatibility with the constitutional structure of the Kingdom as laid down in the Statute, among other things, in which the autonomy and individual responsibility of the countries are important starting points.
On the basis of the considerations given in this advisory report, the Division is therefore of the opinion that the proposal for a Kingdom Act is inadequate. She concluded that the bill should be reconsidered and therefore cannot be submitted to the parliaments of the countries of the Kingdom in this form.
The Advisory Division of the Council of State of the Kingdom has a number of comments on the bill of state and advises against submitting the bill of law to the House of Representatives of the States General, the States of Aruba, those of Curaçao and of Sint Maarten, unless it has been modified.
The Vice President of the Council of State of the Kingdom,
Appendix I: questions from Curaçao
The general question included in the request for advice is further elaborated in the following specific questions:
Does Article 2, paragraph 4, read in conjunction with Articles 22 and 23 of the Independent Administrative Bodies Framework Act, and the lack of involvement of Curaçao in that decision-making, relate to Articles 37 and 38 of the Charter?
Does the composition and method of appointment FULL ARTICLE WITH BACK STORY: http://sxmgovernment.com/2021/03/24/documents-english-translation-council-state-st-maarten-harshly-criticized-the-hague-coho/