Today Newspaper St. Maarten

St. Maarten – The British Overseas Territories apply the guarantee function more efficiently than the Kingdom of the Netherlands by giving the governor a role in meetings of the Council of Ministers. That is the opinion of Oberon Nauta, a senior project manager at the DSP Group, a research and consultancy company in Amsterdam. One of his fields of expertise is public administration. Nauta published his analysis of the guarantee function and the role the governor could play in the Caribbean autonomous countries in the Caribisch Juristen Blad. With Nauta’s permission, we present his article to our readers.

“Based on the Kingdom Charter, the Kingdom Government has to guarantee that the fundamental human rights and freedoms, the legal security and good governance in the Caribbean countries become a reality. This task, described with the term guarantee function, has triggered a lot of discussion since the Charter’s ratification, but little decisiveness. Wrongly. It is possible to execute the guarantee function much more approachable and efficiently than what was thought possible up to now. A look at the British Overseas Territories is in this context quite enlightening.

So much is clear: one cannot deal lightly with the guarantee function. From the official clarification to the Kingdom Charter, it appears that this task of the Kingdom Government is only opportune when in one of the Caribbean countries “no redress of an unacceptable situation is possible.” The question is therefore: do such situations occur in the Caribbean countries? And if so, are the countries not capable to solve them on their own?

As far as unacceptable situations is concerned there is no need for a lot of discussion. While it is a dicey venture to establish whether a country de jure falls short of realizing the fundamental human rights and freedoms and legal security the term good governance offers less problems. That is to say: all definitions of the concept state that the public administration at least has to act lawfully if it wants to qualify as good governance at all.

If a situation whereby the public administrations in the Caribbean countries do not act lawfully is considered unacceptable, the conclusion must be that this happens frequently. The examples that support this conclusion, vary from not submitting legally required budgets (or not submitting them at all) and hiring civil servants in violation of existing regulations to granting contracts and concessions while the rules do not allow this.

With such unacceptable situations, the Caribbean countries are not unique. Decisive for executing the guarantee function is therefore the answer to the question whether the entities are capable of solving these unacceptable situations on their own. According to the Dutch government, this may indeed be expected because the countries supposedly have all necessary democratic facilities at their disposal. The recent vision-memorandum about the guarantee function states for instance: “There are also checks and balances. There is parliamentary control on the executive bodies and there is control by the court on the actions of the government and the legislator: the Common Court of Justice, the Supreme Court and the special Courts of Justice. All countries also have independent bodies like a Council of Advice, General Audit Chamber and Ombudsman. Lastly, the governor has a special role in each country to guarantee that laws and decisions do justice to the laws and rules of the Kingdom.”

The Dutch government’s vision shows however an ethnocentric orientation on the public administration. The institutional system of the Caribbean countries is based on the Dutch system, but it has to function within a very different governing and cultural context. That Caribbean context turns the democratic facilities that guarantee good governance in the European part of the Kingdom in the overseas territories often into toothless tigers. The parliamentary control in the Caribbean parts of the kingdom is by comparison extremely weak and several high councils of state like the Audit Chamber and the Council of Advice are not able to work according to their initial objective.

As a consequence, the system of checks and balances is unbalanced. This results in a situation whereby the executive power on the islands has too much maneuvering space and whereby the quality of the public administration is affected.

The influence of the Caribbean context on the functioning of the institutional system has been known for quite some time, but during the last revision of the institutional systems the Dutch example was again largely used as blueprint. The mismatch between the Caribbean context and the institutional system therefore remained in place.

Violations of the principle of lawfulness must therefore not be seen as isolated incidents but as structural side effects of the current institutional system. It is not surprising that even the Dutch National Audit Chamber calls for an active implementation of the guarantee function these days.

Is that call justified? After all the politicians the population has elected are the ones violating the principles of good governance. In spite of this seemingly legitimizing of the current status quo, there is a lot to be said in favor of the Audit Chamber’s position, not only from a Dutch perspective, but also from that of the Caribbean countries.

For the Netherlands, the economic argument plays an important role. The Charter provides next to the guarantee function also the regulation for assistance. This regulation – ex article 36 Charter – makes it practically taboo that the Hague does not assist if one of the Caribbean countries gets into financial trouble. The last large restructuring round cost the Netherlands almost €2.5 billion ($3.1 billion) in damages and it seems that the Aruban state finances will demand a large financial offer from The Hague. These situations could have been (partially) prevented if the Kingdom Government had implemented the guarantee function actively in the preceding period.

The Dutch international liability for the Caribbean parts of the Kingdom is an additional argument for an active role of the Kingdom Government. That is to say: foreign countries frequently call the Netherlands on unacceptable situations in one or more of the Caribbean countries.

The wellbeing of the inhabitant of the islands is however the most important reason to call for an active implementation of the guarantee function. The relationship between good governance and healthy social-economic developments is very strong and there is no reason to assume that this link would not apply to Aruba, Curacao and Sint Maarten. Guaranteeing good governance means therefore immediately also actively contributing to the social development of the entities. That is, considering the social-economic indicators of the islands, not a luxury. According to the United Nations, it is also practically impossible to realize the fundamental human rights and freedoms without guaranteeing good governance.

Based on the above the conclusion must be that tolerating bad governance by the Kingdom Government structurally disadvantages the population of the Caribbean parts of the Kingdom and the Dutch taxpayer. This represents a strong argument in favor of an active implementation of the guarantee function in line with the vision of the National Audit Chamber.

The use of the guarantee function is generally interpreted as the use of the executive and legislative power by the Kingdom Government. That is the most important reason for not actively implementing the function. The lackluster zest for applying such kill or cure remedies is of course understandable. A general measure of Kingdom governance to put things in order can only lead to enormous tensions between the kingdom partners. This would make a constructive dialogue about unacceptable situations impossible. But it is a misunderstanding to think that the guarantee function can only be implemented through this formal set of instruments.

On the contrary: the current post-colonial relationships within the Kingdom offer an elegant but unused alternative of which the British have demonstrated that it is possible to effectively implement the guarantee function in an approachable manner. This option only requires a slight change to certain competencies. It is not necessary to amend legislation or regulations. What is this all about?

Just like in the Dutch Kingdom the governor in the British Overseas Territories represents the Crown. In that capacity he is the head of the government. The crucial difference with the Kingdom is however that the governor in the British model actually executes that role and attends every meeting of the Council of Ministers. That presence is according to the British of decisive importance for their relatively smooth relationship with the territories and the high level of good governance in these entities.

His presence creates a situation whereby it is possible to reach agreements on the highest level of government in an approachable manner and under the radar of the media. This does not mean that the governor or London intervene in the local decision making process. On the contrary: in local matters – and this is what the large majority of decisions by the Councils of Ministers in the territories are about – the governor keeps entirely aloof.

When the local Council of Ministers abides insufficiently by the principles of good governance according to the representative of the crown, it becomes his task to join the discussion. That could mean that he points out certain procedural requirements for a decision, but also that he could propose to put a decision on hold until the next meeting because he feels the need to weigh its consequences. He does this with the staff of his cabinet or with the Overseas Territory Department of the Foreign and Commonwealth Office in London.

Insofar the conclusion is that an intended decision does not tally with the principles of good governance, the governor attempts with tact and persuasiveness to persuade the Council of Ministers to revise the decision. That does not always succeed. When the issue is a breaking point for London, the governor does not hesitate to make it known to the Council of Ministers that if they stick to their decision he will be forced by London to exercise his formal competencies. Under those circumstances, he does not operate autonomously; the Foreign and Commonwealth Office will prompt the exercising of these competencies entirely. It is telling that the British hardly ever use their formal competencies; they are able to make do with this informal active implementation of the guarantee function.

Contrary to the United Kingdom, in the Kingdom of the Netherlands the governor is deployed only passively. He is only present in meetings of the Council of Ministers on exceptional occasions. As a consequence he is not structurally and in an early stage informed about the intentions of the Council of Ministers, let alone that he is able to hold those intention up against the principles of good governance in that stage of the decision making process. Contrary to London, The Hague is often faced with faits accomplis. Because the country then already has taken a formal decision, the Kingdom Government can do little else than using formal legal means or accept its fate. Up to now – because of the explosive character of the first option – the choice always fell on the second option.

This situation could change radically when the governor begins to take part in all meetings of the Council of Ministers. In doing so, his role is limited to supervising the observance of the principles of good governance and his interference with local matters is out of the question. His presence guarantees however that – long before a formal decision is taken – it is possible to reach an agreement in a constructive manner about guaranteeing the principles of good governance.

The question is now: is it possible for the governor to take on this role in the context of the guarantee function? From the legal-scientific perspective, it is possible to object to this with the argument that there is no unequivocal definition of good governance and that the formal task of the governor is not compatible with the role that is proposed here. However, the interpretation of the guarantee function – and good governance in particular – is not legal, but political. This means that if politicians are of the opinion that there is bad governance, then there is bad governance. If politicians are of the opinion that the governor has to take on a specific role, the governor has no choice but to do that. The legal framework – according to the Charter, the State Regulations and the rules of order for the governor – does not present any legal obstructions for the governor’s presence in the Council of Ministers and the execution within that council of his proposed task. After all, the governor already has to supervise the observance of Kingdom laws, general measures of Kingdom governance and of treaties and decisions by organizations under international law. The representative of the Crown is also entitled to be informed, to encourage and to warn. In Curacao and Aruba, the governor even appears to be the chairman of the Council of Ministers, if he is present in its meeting.

The challenge within our Kingdom is therefore not so much tearing down legal obstacles, but breaking through political traditions that have known two constants during the past sixty years: the Dutch tendency to prevent reproaches of neo-colonial behavior at any price and an attitude of laissez faire.

The sensitivity for the neo-colonial card can be linked historically very well to the embarrassing role of the Netherlands in the decolonization of the Dutch East Indies. However, the Dutch indifference is mainly due to political opportunism. Dutch politicians cannot score on the Caribbean dossier. The Dutch public has in general little interest in what is happening on the islands – unless things are going seriously wrong. This attitude makes that it does not pay for Dutch ministers to invest in the Caribbean parts of the Kingdom unless there is a large wave of social dissatisfaction in the Netherlands. That happens seldom, and it usually does not last long.

While this behavioral pattern is as old as the Kingdom Charter, it is a misunderstanding to assume that it is impossible to change. The recent British post-colonial history shows that everything hinges on political will. The United Kingdom initially had little zest for change as well. Its attitude was best characterized as reluctance combined with the preparedness to transfer as many competencies as possible to the post-colonial entities. The idea was to lead the entities this way towards independence.

That attitude changed in 1982 after the occupation of the Falkland Islands by Argentina. Several years later, corruption scandals hit the Turks and Caicos Islands. A few years after that, the British were forced under international pressure to close down several mala fide banks in Montserrat. That is when London revised its vision on the overseas territories. Only by tightening the ties with the overseas territories was it possible to give meaning to the post-colonial relationships. This position resulted in 1999 in a vision document from the British government entitled White Paper. Its message was clear: it was the free choice of the entities to remain part of the United Kingdom, but that choice came with a strict house rule: “Our objective is that those territories which choose to remain British should abide by the same basic standards of human rights, openness and good government that British people expect of their government.”

To enable the British overseas territories to observe that house rule, the government started a comprehensive process of modernizing the institutional framework of the post-colonial relationships. Initially the British gave the entities the opportunity to come up with their own proposals for the reform of their institutional system. When it appeared that the political establishment of the islands used the reform mainly to grab more competencies for their own government and that they wanted less supervision, London took over the initiative. The British government noted that it was unable to exercise the guarantee function without the correct competencies.

“The UK government would be left with continuing responsibilities while being denied any ability to ensure good governance, fulfill our international obligations or protect the British government and taxpayer from significant contingent liabilities should things go wrong You will understand why this is unacceptable. It is certainly not the partnership envisioned in the 1999 White Paper.”

The islands remained with two options: independence or a lasting relationship on the condition that – within his existing competencies – the governor would be more actively involved in good governance. In spite of all the fierce rhetoric, none of the territories opted for independence. They accepted the new task of the governor within the Council of Ministers.

On 10-10-10, a great opportunity was missed to graft the institutional systems of the Caribbean countries on their own governing-cultural context. The susceptibility for bad governance has remained in place unabated and it cannot be expected that the countries are able to realize on their own the protection of human rights, the legal security and good governance. In spite of the fact that this situation exists already since the signing of the charter, the Kingdom Government has never been prepared to actively implement the guarantee function. The most important reason for this was that The Hague always assumed that executing this task involved the use of draconic measures; its fear for the colonial card prevented the Dutch government from taking those measures.

The current post-colonial relationships within the Kingdom of the Netherlands offer however more possibilities for implementing the guarantee function than the inconsiderate application by the Kingdom Government of its executive and legislative powers.

This article has pointed out an alternative that is approachable as well as proven effective. There are no legal obstacles for implementing these alternative, only historical ones.

With the understanding that the Kingdom Government’s objective is not to please the political establishment on the islands but to give priority to the interest of their citizens, there are no valid arguments to forego such an active implementation of the guarantee function.”

Oberon Nauta’s British alternative to guarantee good governance: “Give governor role in Council of Ministers” by admin