Opinion: “Your Legal Order Is Not Mine — and Fifteen Years On, It Still Isn’t”

By National Ombudsman, Reinier van Zutphen

Since 17 November 2017, based on Article 133(4) of the Constitution (Gw), rules can be laid down for the public entities in the Caribbean part of the Netherlands, and other specific measures can be taken in view of special circumstances that distinguish these public entities substantially from the European part of the Netherlands.

The provision is the successor to Article 1(2) of the Statute for the Kingdom of the Netherlands. That paragraph came into force on 10-10-10, and it is interesting, to use a neutral word, to see how the explanatory notes to the provision mention the possibility of governing the islands efficiently and effectively, and how the three islands differ from the European part of the Netherlands in terms of location and many other factors. And then it is also stated in the explanatory memorandum that these factors, due to their permanent and cumulative nature, have significant adverse effects on the development of the islands compared to the European part of the Netherlands.

But it goes even further! The subject of the government’s continuing concern is to achieve an acceptable level of facilities on the islands within the Netherlands (indiscriminately!) in close cooperation with the governments of the islands concerned. Especially in the field of education, public health, social security, and safety. In accordance with Article 1 of the Dutch Constitution, the specific local circumstances of the islands are taken into account.

And this is the explanatory finale: differentiation is therefore possible and sometimes even necessary. But the Constitution applies so that all those who are on the territory of the public entities are treated equally in equal cases (just like in the rest of the Netherlands). And, oh yes, there are two separate legal orders in the Netherlands. One in Europe (18 million citizens) and one for three small islands (25,000 citizens).

What have we been doing after the dissolution of the Netherlands Antilles? Has the government of the Netherlands ensured that the adverse effects on the development of the islands, as foreseen well before 2010, have been prevented, remedied, or at least limited? Is education in order? Do students have equal opportunities with those others who fall within the scope of Article 1Gw? What is the state of education at all? And with the social minimums, and elderly care, and youth care, and medical care? And with safety (How current on Bonaire now)?

Since 1998, I have been in all the countries of our Kingdom with great regularity. I have worked in all countries and islands. I have spent holidays in and on all the islands. I lived on (at the time not yet ‘in’) Curaçao. In the course of those years, a lot has changed and also remained the same. But what was and still is, especially on Saba, Statia, and Bonaire, is poverty, bitter poverty. And the powerlessness to put an end to it. It is still there. There is also an impotence to organize public transport (bus shelters, no buses). Powerlessness to get waste processing in order: Lagun on Bonaire, Parkietenbos in Aruba, Pondfill in Sint Maarten. Healthcare on all six islands.

I stop. It is too sad for words, too sad for those people, parents, children, grandparents who want to but cannot. And hardly anyone asks: what do you need? Almost no one understands and understands that it is possible if you just want to. The will on the European side must change. Not helping or controlling or bashing or cursing or disapproving or disdaining should prevail. Not being happy when the European stamp can be put on everyday administrative practice.

Let’s make the tilt result in the question to the citizens of the BES (and just a false note: I’m not talking about the white, European recruits who have signed on) what they need, what they can do themselves and what the government can realistically contribute to this. Let’s shake off all legal feathers from 10-10-25. We are going to repair what has broken together, and every citizen will have the opportunity to say what she needs and how she wants to contribute to their own future and of course that of their children. Here you can also read “he” for them if you wish.

Let’s go back to the beginning of this epistle. We have created a discriminatory system of laws, rules, and policies for 25,000 Dutch people. We impose European standards on Caribbean public entities and defend them by invoking diversity and separate legal orders. As far as I am concerned, that in itself is making a forbidden distinction. Why?

Because good care is just good care for everyone. Because public transport is a basic facility. Because care for the elderly is a matter of civilization. Because children have the right to a good education. Because the rule of law should be there for everyone.

Seen in this way, 10-10-10 is a moment when making prohibited distinctions is enshrined in law. The justification for this is flawed and we knew it. Even then. It is not too late. So let’s ensure the rule of law in the Netherlands. A legal order in which everyone has equal opportunities and rights. With good governance, cooperation at number two, because the citizen comes first.

National Ombudsman Reinier van Zutphen

The above opinion article is also part of a collection of essays on 15 years of the Caribbean Netherlands that is presented today in The Hague. The collection contains candid stories from residents of Bonaire, St. Eustatius, and Saba, in which they reflect on the past fifteen years, supplemented with analyses by more than twenty experts in the field of kingdom relations. The collection has been compiled by Nina den Heyer (former member of the Provincial Executive on Bonaire) and René Zwart (creator of Dossier Kingdom Relations).