CURACAO SHOULD ESTABLISH A CONSTITUTIONAL COURT

Speech by Karel Frielink, President of the Curacao Bar Association, given on Friday 21 September 2012 on the occasion of the inauguration of three judges of the Joint Court of Justice of Aruba, Curacao and St Maarten and of Bonaire, St Eustatius and Saba

 

Madam President! Excellency! Ladies and gentlemen!

Our government, our parliament and our judiciary are the cornerstones of the sustainable, positive development of our Country. With our belief in God we shall enjoy His protection, for blessed are those whose God is the Lord. We shall pull together and serve our Country with love in equality and in peace.

This quotation does not come from a Mass, nor from an informal speech, but from the preamble to the Constitution of Curacao. They are carefully chosen words and, according to the Constitution, this message has been proclaimed by the people of Curacao themselves.

This is the fourth and final time that I, as President of the Curacao Bar Association, am being permitted to grace an inauguration with my presence. In my very first speech I voiced major concerns. In later years these concerns were cast in stronger terms to match the conditions at the time. If I had to point to a central theme in my speeches, it would undoubtedly be the voicing of criticism of people (and conditions, but people cause them too) who, to a lesser or greater degree, represent a threat to the rule of law. A small group reacted fairly fanatically to this, mainly in the form of yelling and cursing. Such reactions had no effect on me personally, but the fact that even people with great political responsibility (and they are leaders who set an example to others) joined in is disappointing and a sign of weakness. Reactions of this kind do not however prevent me from sounding a critical note today too, a constitutional note this time.

The purpose of regulations such as the Constitution (Staatsregeling), but also the Standing Orders of Parliament (Reglement van Orde), is – amongst other things – to provide protection against unfairness. The Standing Orders are not so named without good reason: they contain regulations that are important for the orderly functioning of Parliament. In cases of doubt about the interpretation of a provision of the Standing Orders it is Parliament (that is the majority) that decides and not the Speaker. It is not the Speaker therefore who ultimately decides how the Standing Orders are to be interpreted and understood, but Parliament itself. A Speaker is obliged to let members of parliament who let it be known that they so wish to give an opinion on this.

It may be stating the obvious, but power can be abused, even if that power has been organized democratically. Powers can for example be abused by putting them to a different use from that for which they were granted (see section 3:13 of the Curacao Civil Code). The power to suspend a sitting of Parliament for example is designed to let members of parliament have a bit of a break or a bite to eat after a long sitting. The thinking behind giving powers to a Speaker has been that he takes a politically neutral (non-partisan), independent and fair line. I have already made public my personal view of the way in which the power to suspend was used on 24 August 2012 and I will not be repeating it here today (I refer for instance to the Antilliaans Dagblad of 30 August 2012 (p. 8)).

It has however been laid down in the Standing Orders that it is the Speaker who decides whether or not to suspend a sitting, but the Standing Orders do not contain any provision under which Parliament can challenge abuse of that power. The recent developments show that there is a gap in our legal system, a gap that has led to members of parliament being diametrically opposed to each other, with things going from bad to worse, verbally in particular. Sometimes I have the feeling that we are living under the law of the jungle.

Naturally thought has been given to whether the debate about who the real Speaker and Deputy Speaker are can be resolved with the tools that our form of government currently has at its disposal. Article 62 of the Constitution of Curacao states that Parliament shall adopt its own Standing Orders and that they shall be published by placement in the Official Journal. The Standing Orders of Parliament are internal regulations, but they have an external profile and are very much a standard that helps give shape to the social duty of care of the Country of Curacao. It is defensible that an incorrect application of the Standing Orders in respect of members of parliament constitutes a breach under civil law and is therefore unlawful. On the basis of this view relief could be sought from the civil court (as ordinary court in this case) in summary proceedings that leads to Parliament – for example – being able to sit normally again. This is not an ideal solution and we would prefer not to have to make the civil court resolve politically tinted disputes, not even if they mainly relate to matters of a more procedural nature.

The strength of legal rules lies in their application, while the application is based on legal rules. The violation of contractual rules is a private matter, the government facilitating the resolution of disputes in the form of the administration of justice. The violation of constitutional law on the other hand is a public matter, which after all affects the foundations of the form of government in which we live, a form of government that has to protect us against the dictatorship of both the majority and the minority. The Charter for the Kingdom (Statuut voor het Koninkrijk) certainly offers the Kingdom the opportunity to intervene in extreme situations, but not only is this a matter of last resort, more important is that we must ourselves be adequately equipped to cope with violations and impending violations of constitutional law. Under a mature rule of law problems must as far as possible be resolved in-house and where politicians fail to resolve their own problems, it should be possible to fall back on an institution capable of deciding with the necessary authority in that area.

In this respect our constitutional law is failing because it makes no provision for an objective, specialized form of dispute resolution. To a limited degree the civil court could fulfill a role as ordinary court, but that – as I have said – is far from ideal. I have previously advocated the establishment of a Constitutional Court, with reference to St Maarten and the Federal Republic of Germany. I advocate it again today. As far as I am concerned, such a Court should be set up. That Court should be able to review national ordinances against the Constitution of Curacao, it should judge on the regularity and legitimacy of all acts in the elections process and for example conduct a preventive review of referenda. Further consideration must be given to this and other powers in a different place. But more important for now, that Court should in the final instance have the opportunity to resolve interpretation debates where our Constitution is concerned and the power to impose permanent or temporary remedies on request. When for example a case of abuse of power by the Speaker of Parliament occurs and this cannot be redressed internally, any member of Parliament must find it easy to turn to the Constitutional Court.

Perhaps the Governor should also be given the power to submit matters of a constitutional law nature submitted to him to that Court. At the moment the Governor has little room for maneuver: he can if necessary mediate or (whether or not with the engagement of advisers) give his opinion or – in an extreme case – bring about the use of the guarantee function laid down in the Charter. But just as with the civil court, where the Governor is concerned, we would prefer not to want to make him resolve politically charged disputes.

In the last few weeks there have been repeated claims of a constitutional crisis, which has shown that there is a gap in our legal system. We lack an institution capable of resolving disputes of a constitutional law nature with authority. It would be of benefit to the confidence in our Constitution and the functioning of our democracy if an independent Constitutional Court were to be set up.

On behalf of the Bar I would like to congratulate the judges who are taking center stage at this inauguration today. You are starting your work at a turbulent time in our history, but also at a time when history is being written. And although I respect and value your role where the resolution of disputes is concerned, at this time Curacao, in addition to a Constitutional Court, above all needs social leaders who can make a contribution to the social reconciliation desired by so many.

Thank you very much!

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