The oath of office as prescribed in our Constitution requires Members of Parliament and Government to: “..maintain the Constitution of Curaçao”. Yet, the same Constitution doesn’t have legal means to guarantee the supremacy of the Constitution and Constitutional legality of (proposed) legal acts. Meaning, those who should safeguard our Constitution can breach it by accepting or enacting a legal act without independently determine its constitutionality. This doesn’t make sense. We should curb the absolute powers of Parliament.
The dangers of not having a Constitutional Court isn’t theoretical. In 2013 the office of the Governor indicated that the Governor would not sign into law the unconstitutional “80/20” which was passed by the Parliament in 2011. Had it arrived on the desk of the Governor, this would’ve resulted in an unresolved constitutional crisis.
The plight for a Constitutional Court (judicial review) isn’t new. Dr. Moises Frumencio da Costa Gomez made his case in 1946 (Curaçao in het Koninkrijk, p.123) for Curaçao to depart from the Dutch tradition to prohibit judicial review and make it possible judicial review. He didn’t propose a Constitutional Court, but felt that it could be handled by the Appellate Court.
Building on da Costa Gomez’ proposal I’ve been calling for a Constitutional Court since 2010. As Member of Parliament (2012-2016), I presented draft legislation to the Parliaments of Aruba, Curaçao and Sint Maarten for a joint Constitutional Court. It was well received, but Curaçao didn’t continue to lead. Below, the most salient points of my proposal.
Together or solo?
The case for a joint Constitutional Court which is part of the already established Joint Court of Justice is overwhelming considering our scale. We could go solo, but it’s not recommended.
The way we’ve dealt with Constitutional crises and multi-interpretations of the Constitution so far is based on opinions of constitutionally unlettered politicians and ‘expert opinions’ by people with their own agenda. Evidently this isn’t constitutional review. On the contrary, it threatens the integrity of the Constitution. The Constitutional Court should be limited to establishing whether a certain legal act is in conflict or not with the Constitution. To clarify, (re)interpret constitutional provisions when it’s important to improve the protection of the constitutional values and control mechanisms enshrined in the Constitution.
Decisions are binding
A legal act that has been ruled by the Constitutional Court to be unconstitutional may not be applied from the day the ruling is made public. It should be permanently revoked, removed from the our legal system or amended. I don’t believe in retroactive effect of decisions made by the Constitutional Court, even if such possibilities exist in some countries. The final decisions and or interpretations of the Constitutional Court are binding on all courts, institutions, organizations, officials and citizens. Government and the Parliament should be given enough space to make the above–mentioned changes.
Establish constitutional jurisprudence
The Constitutional Court should be bound by its own precedents and decisions in order to be consistent and ensure the continuity of constitutional jurisprudence. The importance lies in the fact that at all cost arbitrariness and subjectivity depending on the composition of Government, Parliament and even of the Constitutional Court should be avoided.
Curb and check the ‘absolute’ power of Parliament
In our parliamentary democracy Parliamentarians too easily consider themselves almighty and like yelling Vox Populi, Vox Dei, ignorant that this was originated in 1709 by Kings who were given celestial powers by Christianity. It’s especially harrowing in Curaçao where Members of Parliament with zero votes are able to represent the entire population. We like to talk about democratic deficiency as it pertains to our relationship within the Kingdom of The Netherlands. Rarely do we talk about deficiencies in our own house.