“We have to learn a lesson from the past”
~ Donner on departure as vice-president of the Council of State ~
“The big danger always is that we take it for granted if something goes well and always draw our attention to everything that does not go well.”
“For the first time since the dismantling of the central Netherlands Antillean government, there are three Dutch Caribbean governments that want to be true partners in the Kingdom, which is special, and there is also a more positive attitude on the Dutch side.
“And exactly because of that, we now have to be careful that nobody thinks: so now we can give extra throttle, or that the Netherlands will put extra pressure on, because now there are extra positive governments or people to work with.”
Donner refers to the 90s, when the Dutch government demanded drastic cuts from then Prime Minister Miguel Pourier, but subsequently failed to meet the promise of budget support and investments.
“We have to learn a lesson from the past, how can we prevent its repetition. Since those days, there have been other cabinets that sometimes really wanted to cooperate, but had to deal with a local political situation: those are the most sensitive situations.”
Donner looks back in his room at the stately building of the Council of State at the Kneuterdijk in The Hague. For eight years, he was closely involved with developments in the Kingdom.
Four days after the dismantling, he started as Minister of the Interior and Kingdom Relations and was subsequently appointed vice-president of the Council of State on February 1, 2012. Due to his 70th birthday at the end of October, he will resign on November 1.
“Over the past eight years, a lot of time has been used to create a situation in which relations were not good, and the Kingdom partners were often stuck in conflicts,” says Donner. These conflicts become clear if you look at the instructions from the Kingdom Council of Ministers to the governments of Curaçao, Aruba and St. Maarten to put their finances in order, or to change other policies.
Only last year, the organisation of the Curaçao elections was placed – by Kingdom decision – under the authority of Governor Lucille George-Wout to ensure that they would be held properly.
Safeguard function
It seems to some as if the safeguard (‘waarborg’) function of the Kingdom government is used differently or faster but, according to Donner, that is not the case. “There is no other interpretation as such, but conflicts and interventions from ‘The Hague’ are just more visible now, which is a direct consequence of the disappearance of the extra administrative layer formed by the central government of the Netherlands Antilles in Willemstad.
“Before 10-10-10, the government of the Netherlands Antilles had to take measures when there was something going on at a certain island, sometimes that happened in consultation with the Kingdom Council of Ministers,” he says. “The safeguard function is always meant to be preventive: If action can only be taken when nothing else is possible and the disaster has already taken place, then direct administration from The Hague is the only option. This preventive element does not imply that the Kingdom Council of Ministers may intervene immediately, if one of the countries is not entirely in line with the ideas of the Dutch government or parliament.”
Donner refers to the Council of State advice of 2015 on the giving of instructions. “The Advisory Division of the Council of State noted that in a number of cases, a Kingdom instruction was given, while the situation at that time did not call for one (yet).”
Despite objections from then minister of Kingdom Relations Ronald Plasterk, that advice was interpreted by various legal scholars as a criticism of the financial instruction for Aruba, which in 2014 led to a hunger strike by Aruban Prime Minister Mike Eman.
Dispute settlement
A general dispute settlement could prevent conflicts. Donner regrets that it is still not there. Former minister Plasterk made a proposal, which the Advisory Division of the Council of State of the Kingdom then issued advice on.
The government has not yet published this advisory opinion, but as early as October 2016, Donner gave his views on a number of elements of the cabinet proposal as a speaker at a meeting of the Dutch-Aruba Society in The Hague.
Referring to proposals from the Interparliamentary Kingdom Relations Committee (IPKO) and from the Caribbean countries to submit disputes to a regular legal court, Donner warns of getting all excited about nothing.
The disputes of recent years were not or hardly legal. They were mainly related to broader policy issues that also included some legal aspects. Donner therefore understands the objection to the Caribbean idea of only submitting legal disputes.
In practice, the islands would not win much with a strictly legal review: decisions of the Kingdom Council of Ministers are almost always lawful in a technical legal sense. Furthermore, this would mean that the conflict must first totally escalate and a decision must have been made before you can submit it to a court.
Donner also said at that time that a binding court decision – which was desired by the islands – if no decision has yet been taken is not possible. Then a judge would interfere in the Kingdom administration and would undermine the role of parliament.
“In any case, Plasterk’s proposal is special because it would make it possible to submit a dispute – as a form of mediation – fairly early in the decision-making process. Once a final decision has been taken, it is much more difficult to resolve a dispute because parties then already have each taken strong positions and a compromise at that state would be difficult to reach,” says Donner.
Independent
According to Donner, such a mediating role in resolving disputes when a decision has not yet been taken can be properly fulfilled by the Advisory Division of the Council of State of the Kingdom.
Already, the Council is functioning as a dispute settlement court in the dispute settlements that are part of the Kingdom Acts on Financial Supervision for all three Caribbean countries and on St. Maarten for the so-called Plans of approach for Justice and for the Protocol on the Integrity Chamber.
Donner has little understanding for doubts about the independence of the Council of State of the Kingdom. “The Council of State is certainly not the mouthpiece of the Kingdom Council of Ministers or of the Dutch government; our critical advisory opinions have proven that over the years.
“In addition to that, apart from the Kingdom Council of Ministers, the Council of State of the Kingdom is the only Kingdom body in which representatives from all Caribbean countries are present. In my view, this is another reason to have disputes settled by the Council of State of the Kingdom.”
“Opinions of the Advisory Division of the Council of State of the Kingdom are not the expression of the personal views of the vice-president or of one of the other members. Advisory opinions are the product of the opinions and views of all members in the spirit of the Charter for the Kingdom.
“The Council of State oversees the best possible constitutional functioning of the Kingdom with the ultimate goal that through proper governance and adequate legal protection, all Kingdom citizens can build up a decent life of their own.”
Donner emphasises that at the same time, the question of who the members of the Council of State are, is not entirely irrelevant. The vice-president must have the trust of all political parties, groups and factions that appeal to the Council of State.
And certainly in the Advisory Division, government experience is crucial. “You have to know what ministers have to deal with, in order to be able to give them good and critical advice,” says Donner.
Drinking water
In the case of the Advisory Division of the Kingdom Council of State, familiarity with the islands is also important. “You must have visited the Caribbean part of the Kingdom to be able to advise and judge.
“St. Eustatius and Saba are an example: On these islands, the Dutch inspection checks whether the drinking water contains certain bacteria that can only occur if fresh water is the basis of the drinking water.
“The drinking water on the islands – as you know – is made from salt seawater. This is an example of what we have always argued: Not every Dutch rule can be applied as such on Bonaire, Saba or Statia. You need to have a mechanism by which you can objectively, carefully and in consultation with the islands decide which rules to apply in full, which rules should not be applied at all and which must be adjusted tailor made.
"In this drinking water case, the procedure described by law to inspect for certain bacteria is nonsense for the Dutch Caribbean.”
For the in-depth knowledge of the local situation, the state councillors for Curaçao, Aruba and St. Maarten are of great importance, although Donner and other “Dutch” state councillors have often visited the islands themselves.
Former governor Frits Goedgedrag plays the same role for the Caribbean Netherlands as an extraordinary state councillor.
Visits are important: “During my recent visit to the three islands of the Caribbean Netherlands, for example, I experienced that daily life is extremely expensive: a tomato costs almost a US dollar.
“Even if you set the social minimum and raise the minimum wage or AOV, these prices will remain a problem for many. Even two-income families often have difficulty in making ends meet.”
Positive
The relationships within the Kingdom would benefit from a dispute settlement, but there are more elements, says Donner. “What people do not realise enough in the European part of the Netherlands is that we as a Kingdom are not locked up inside Europe. We can have a broader view of the world and because we are part of a Kingdom, internationally we can talk about a number of extra issues,” says Donner.
“The Netherlands should also more often realise that living is much better in the Caribbean part of the Kingdom than in many other countries in the region. This becomes even clearer when you look at the extent of recovery on the Dutch side of St. Maarten and the French side.
“During my visit to St. Maarten, I saw how much has been achieved, because people themselves take the initiative and make enormous efforts. The big danger always is that we take it for granted when something goes well and only draw our attention to the things that do not go well.”
This last remark also applies to the three Caribbean countries, says Donner. “Many countries in the Caribbean region would be happy with a form of Kingdom guarantee. There are fewer and fewer things that countries can autonomously determine in the world: The Netherlands is a sovereign state, but our policy is very much determined by dependencies within Europe.
The Caribbean part of the Kingdom now has three governments with a positive attitude towards the Kingdom, but they also recognise its limitations. This positive realism is encouraging.”
Framework: Caribbean Netherlands
The customs departments on St. Eustatius and Saba were amongst the first government offices that were put in order after the dismantling. Donner now thinks this is an example of something that could have been dealt with differently.
“We should have created between all islands a space for the free movement of people and goods, so that people traveling between islands do not have to go through Immigration and goods do not have to go through Customs every time,” says Donner.
In particular, this would have reduced prices and would therefore have facilitated life on Bonaire, St. Eustatius and Saba. “So looking back, that is something that I would have done differently. But the question remains whether that would have been possible within the political feelings and circumstances that at that time led to the dismantling.”
