Reinforced crown appeal is a nonentity

Douwe Jan Elzinga, professor constitutional law at the National University Groningen examined the value of the reinforced crown appeal (versterkt kroonberoep) in the following article in Binnenlands Bestuur last year. This is his opinion.

“In 2010 the Netherlands Antilles were dismantled and the kingdom had four countries: The Netherlands, Aruba, Curacao and St. Maarten. Because the number of countries increased, the obligation to arrive at a dispute regulation was added to the Kingdom Charter. So far, this has not become a reality.

The most important cause of this is the difference in insight between the Netherlands on one side and the three Caribbean countries on the other. In 2010 it was made clear that this had to be an independent instance. And for legal conflicts – for instance about the interpretation of the Kingdom Charter – this leads immediately to a judicial instance.

The Netherlands did (and does) not want to hear about this and came with the proposal to introduce a reinforced crown appeal. The kingdom government decides about conflicts, for legal conflicts based on advice from the Kingdom’s Council of State. This exists already for the financial supervision in the Caribbean countries. Now it would have to start functioning as a general dispute regulation.

The arguments for this form of settling conflicts are unprecedented and on certain points even bizarre. Especially in the context of the Kingdom the reinforced crown appeal is a nonentity. The crown appeal hardly still exists in the Netherlands and that is because in the end politicians are making the decisions, even when they are – binding or not – advised about this by former politicians who have moved on to the Council of State.  The ultimate guarantee for independence cannot be offered.

Furthermore, the Dutch government is absolutely dominant in the kingdom government. In this Jesuit construction ministers are easily able to change their hats; then it is rather bizarre to present a conflict about for instance the interpretation of the Kingdom Charter to the instance that took the primary decision.

If the municipality of Haarlem of the island of Bonaire were affected by an annulment decision of the crown, they are able to have this reviewed by the administrative judge. But with the introduction of the reinforced crown appeal this option is taken away from the Caribbean countries.

Especially now that the relationships in the kingdom are under heavy pressure because of the unequal institutional setup of the charter it is from a political-psychological point of view alone immensely unwise to propose this form of settling disputes. The checks and balances in the kingdom can be strengthened considerably with a dispute regulation through an independent judge. It could take away a lot of tension and be the first step towards more equal treatment of each other.

The decision making process about the final form of the dispute regulation is in the hands of the Netherlands. However, it looks like the Caribbean islands will massively resist this. In such circumstances it would be a testimony to constitutional wisdom if The Hague showed its preparedness to stand down; better turned at half than to get lost altogether.”