On June 19th, 2014, the commissioners for constitutional affairs of Bonaire, Sint Eustatius and Saba and the Minister of Internal Affairs and Kingdom Relations (BZK) reached an agreement in The Hague on the evaluation assignment to work out the new constitutional structure of Bonaire, Sint Eustatius and Saba since October 10, 2010. The evaluation will be carried out by an independent evaluation committee, which still has to be instituted.
In the final chord of the mini conference on the future constitutional position of Bonaire, Sint Eustatius and Saba which was held in The Hague in October 2006, it was agreed upon that five years after the moment the three islands obtained a constitutional position within the Dutch state regime, the elaboration of the new constitutional structure will be evaluated jointly by the Netherlands and the three islands.
A joint workgroup of commissioners for constitutional affairs and a delegation of the Ministry of Internal Affairs and Kingdom Relations, under supervision of the SG, formulated the evaluation assignment. The input of the various departments, the three public entities, the information administered by Council of State of February 4th, 2014 is part of this evaluation, together with the subject of democratic representation.
With the new constitutional position of Bonaire, Sint Eustatius and Saba as per 10-10-10 a new relationship between the Netherlands and three islands was created. It can be considered that there a new phase has started, in which all parties involved had to gain experience with the new constitutional relationship. 10-10-10 is not an end point, but rather a starting point of a process on the basis of which all those involved work step by step on a good interpretation of administrative agreements that were made, in anticipation of 10-10-10.The evaluation covers the way in which that interpretation of the agreements has taken place.
The agreements and the chosen principles as such are no point of discussion in the evaluation. A debate on a possible change of the constitutional relations is no part of the evaluation itself. The purpose of the evaluation is to determine, through an evaluation, what has been accomplished on the basis of as much factual material as possible? How did the legislation, agreements and procedures work out?
The basic essential for the evaluation is the information from the Council of State of February 4th, 2014. The evaluation assignment includes the three evaluation pillars that were outlined by the Council of State. These are closely linked but must nevertheless be separated from each other. It concerns:
• The effectiveness of the law; The effectiveness of the law regards the consequences of the choices made regarding legislation on 10-10-10 for the islands as well as for European Netherlands.
• The effectiveness of the new administrative structure; The demand for the functioning of the public entities and the cooperation between the public entities with the government and the other countries of the Kingdom is central to the operation of the new administrative structure. This also relates to the implementation of the specific legal evaluation requirements in the Law on public entities Bonaire, Sint Eustatius and Saba (WolBES) and the Law on finance Bonaire, Sint Eustatius and Saba (FinBES).
• The impact of the transition to the new political situation for the population of the islands. This concerns primarily answering the question: which were the administrative agreements on the level of facilities to pursue and how have they been executed.
In the evaluation assignment, there are also some general principles included. For example, it is requested to also make use of all research carried out and recommendations made. This work does not need to be redone. Also it is requested to go into the subject of (democratic) representation in the evaluation.
To perform the evaluation, an independent evaluation committee will be established. The Minister of BZK and the Executive Councils of the Public Entities are co-instructors. The joint working group of Island Commissioners and (SG) BZK which prepared the evaluation assignment will operate as a council for the instructors after the installation of the evaluation committee. (SG) BZK represents via the CN table the departments involved in the evaluation.
The independent evaluation committee will start working after the summer and will present its final report before 10-10-2015. The final report of the evaluation reports on the results of the sub-studies, and these are analyzed in conjunction. The final report contains the results of Bonaire, Sint Eustatius and Saba separately and elements that relate specifically to the European part of the Netherlands (particularly the government). The final report also includes a general analysis, but no recommendations.
The Executive Councils and the Ministry of the Interior and Kingdom Relations reconfirm the appointment of the administrative meeting of March 14th, 2013, which states that the findings of the evaluation will be respected.
After completion of the evaluation, a balanced decision will be taken regarding the question to what extent and in what way adjustment of the chosen interpretation of the political structure is needed. This involves connecting the interests of Bonaire, Sint Eustatius, Saba and the European part of the Netherlands. The decision will be effectuated in one yet to be established government position, based on the final report of the evaluation committee, after consultation with the three islands.
Attachement to the governmental consultation Evaluation Caribbean Netherlands June 19th 2014 in The Hague
FRAMEWORK EVALUATION ASSIGNMENT CARIBBEAN NETHERLANDS
In the final agreement of the mini-conference on the future constitutional position of Bonaire, Sint Eustatius and Saba on October 10th and 11th, 2006 in The Hague is incorporated that five years after the moment on which the three islands obtain a constitutional position within the Dutch state regime, the realization of the new constitutional structure will be evaluated by the Netherlands and the three islands.
During the governmental consultation Financial Relations of March 14th, 2013, the minister of BZK re-confirmed the agreement from 2006 with the executive administration officials of the public entities Bonaire, Sint Eustatius and Saba that the public entities are co-instructors of the evaluation process.
At the governmental consultation Financial Relations on October 31st, 2013 the minister of BZK agreed with the executive administration officials of the public entities Bonaire, Sint Eustatius and Saba to jointly institute a work group receiving the task to formulate the evaluation assignment and to incorporate therein the input of the various departments, the three islands and the administered information by (the Department of advice of) the Council of State of February 4th, 2014.
The executive administration officials of Bonaire, Sint Eustatius and Saba and the minister of BZK determined the evaluation assignment finally in the governmental consultation of June 19th, 2014. It is agreed that an independent evaluation committee will execute the evaluation.
Evaluation assignment and execution by an independent evaluation committee.
A different relation has arisen between the Netherlands and the three islands since 10-10-10 with the new constitutional position of Bonaire, Sint Eustatius and Saba. One can speak of a new phase in which all parties concerned had to and must gain experience with the realization of the new constitutional relations. 10-10-10 is with that not an ending point but a point of beginning for a process based upon which all involved work step-by-step towards a good fulfilling of the governmental agreements that were made preceding 10-10-10.
The evaluation regards the way that fulfillment of agreements made has taken place. The agreements and the chosen points of departure as such are no discussion matter in the evaluation. A debate on an eventual change of the constitutional relations is no part of the evaluation itself. The objective of the evaluation is to take a look back and determine ‘what has been accomplished’? How have the legislation, the agreements and the procedures functioned?
The aim of the evaluation is to collect as much factual material as possible about the way on which realization has been given to the new constitutional position of Bonaire, Sint Eustatius and Saba. Based upon this, balanced decision making can take place, after completing the evaluation within the framework of the administered information by the Council of State, regarding the question how far and how adaptation to that realization is needed. There it is about connecting the interests of Bonaire, Sint Eustatius, Saba and the European part of the Netherlands.
An independent evaluation committee will be instituted to execute the evaluation. The minister of BZK and the executive councils of the public entities are joint instructors. The joint work group of island commissioners and the (SG) of BZK that prepared the evaluation assignment will operate as a council for the instructors after the installation of the evaluation committee. The (SG) of BZK represents the departments involved with the evaluation through the CN (Caribbean Netherlands) table.
The evaluation committee has the following tasks:
· The operationalization of the themes of the distinguishable evaluation complexes and turning these into a concrete research design. The research design contains the research methods to be used and also the financial aspects (budget). Herewith the committee includes (parliamentary) promise made regarding the evaluation. The committee presents this research design no later than January 15th, 2015 for approbation to the instructors, who will take a decision about it within four weeks. The minister of BZK will decide about the financial aspects;
· The developing of criteria with which the factual findings of the distinguishable researches can be analyzed. The committee will present these criteria no later than January 15th, 2015 for approbation to the instructors, who will make a decision about them within four weeks;
· The basis for the evaluation is the administered information by the Council of State on February 4th, 2014 and will be detailed further below. The evaluation assignment entails the three evaluation complexes that the Council of State has described. These are strongly interconnected but must nevertheless be separated from each other. It regards:
o The functioning of the legislation;
o The functioning of the new governmental structure;
o The consequences of the transition to the new constitutional situation for the population of the islands.
· If and in so far that the committee deems it necessary, the selection of external researchers to do the sub-researches. There a tendering procedure, that will have been determined beforehand, will be followed.
· Guiding the sub-researches and guarding and coordinating the coherence between the researches. The committee has mandate to give direction to the sub-researches if unforeseen problems arise;
· Temporary reporting on advancements to the instructors at moments to be determined in consultation with the instructors.
· Editing the final report of the evaluation in which report is given of the results of the sub-researches and these are analyzed in their mutual relation. The final report contains separate results for Bonaire, Sint Eustatius and Saba and the specific elements regarding the European part of the Netherlands (especially the state government). The final report also contains a general analysis.
The final report contains no recommendations. The report will be submitted to the instructors no later than October 10th, 2015.
The fact that the evaluation of the realization of the new constitutional relations is done now, doesn’t mean that no useful insights have been developed in the period past. Research has been done on several terrains and advice has been presented, among which the advice by the Council for Human Rights. The evaluation committee will therefore include existing material according to its own discretion.
It is important, before describing the three evaluation complexes further below, to name a few general points of departure in view of the execution of the evaluation and in view of the editing of the final report.
Just like the Council of State too describes in its administered information, the feasibility of a broad evaluation research is a special point of attention. When it regards the realization of the evaluation, the evaluation committee must play an important role. A sharp selection will have to be made between the topics per sub-research, partially in view of the available time. The evaluation questions incorporated below per evaluation complex, are examples. When implementing the evaluation design the evaluation committee gives priority to aspects where possible bottlenecks can be seen beforehand. The evaluation committee has room for making adjustments to the evaluation within the given framework. The execution plan of the evaluation design that the evaluation committee will present to the instructors shows how the evaluation can be finished no later than 10-10-15. If the evaluation committee judges that this final date is unattainable without compromising the quality of the evaluation, it will give a proposal on how to deal with that.
Related to the three evaluation complexes to be described, is the question about the (democratic) representation of the population of the Caribbean Netherlands is open. In the third periodical observation of the Council of State on December 20th, 2012, the Council states that reinforcing the relation, on both sides, between the voter in Bonaire, Sint Eustatius and Saba and those who represent them also in the Hague and take decisions there that concern them too, and also between island government and country government is an important point of attention. The evaluation committee will be asked to make this matter part of the evaluation and to report about in the final report.
The administered information by the Council of State also deals with the points of contact between the evaluation of the judicial Kingdom laws and those of the realization of the constitutional position Caribbean Netherlands. These points of contact regard the experiences with administering justice, maintaining justice and constitutional status and the Joint Court of Justice and the differences in legislation. These are two evaluation courses to be distinguished from each other.
The functioning of the legislation
This evaluation complex deals with the workings of the legislation: what are the consequences of the choices made regarding the legislation on 10-10-10 for both the islands and for European Netherlands? Besides indexing the possible bottlenecks in the bringing into existence and the execution of the legislation, this theme is of importance in view of the choices yet to be made about the desirability to introduce European Dutch legislation (as much as possible) in Caribbean Netherlands. This fulfills the parliamentary promise to include the question in the evaluation. The answering of this question is no part of the evaluation assignment but the evaluation must contribute effectively to the making of a solid choice regarding this point.
Only a few laws can be researched deeper in the legislation research, besides the general inventarisation of valid legislation. Sufficient spread should be realized over the most important topics. Also in connection with the choice yet to be made to introduce European Dutch legislation in Caribbean Netherlands is it of importance to emphasize the execution and feasibility of the laws and the eventual bottlenecks and successes that can be pointed out. There it should be about laws both of Netherlands-Antillean origin as of Dutch laws introduced on the islands on 10-10-10 or thereafter.
Below some examples of possible evaluation questions are incorporated:
1. How has the point of departure of legislative restraint that was agreed upon been applied in reality?
2. Which legislation was valid for the islands as of 10-10-10? Which laws have been introduced on the islands after 10-10-10? To what extend have insular ordinances and execution decrees come into existence based on valid legislation?
3. To what extent were the inherent characteristics of the three (separate) islands taken into consideration when introducing Dutch legislation? Which interinsular differences justify differentiation between the islands?
4. What does the existence, the maintenance and the eventual adjustment of a separate law regime for the islands practically mean for the state government and for the islands themselves?
5. How have the islands been involved in the production of new legislation? How far have the islands been involved in the policy making process that is the basis for new legislation? To what extend was the consultation duty adhered to and has this lead to adjustments in the originally intended legislation and regulation? To what extend were the islands involved with eventual changes in legislation and regulation after the consultation phase?
Further, this evaluation complex deals with the manner in which execution and the upholding of legislation take place. It is in essence about the question which bottlenecks can eventually be pointed out regarding that execution and upholding. And the question which explanations can be given for these eventual bottlenecks. Below some examples of possible evaluation questions are incorporated.
1. To what extend has the legislation that was introduced as of 10-10-10 executed in reality and where can eventual bottlenecks be seen? To what extend can these eventual bottlenecks be attributed to the local (im)possibilities to execute valid legislation adequately? Has the way with which legislation and regulation were upheld before 10-10-10 changed after that date?
A further selection must be made for the evaluation of the execution and the upholding of the legislation and regulation. Which major laws or legislation complexes can be selected for this part of the evaluation. One can think of the Law VROMBES (ex ante where there is no execution practice yet), the governmental jurisprudence for the BES, including the Law administrative jurisdiction BES and the legislation and regulation related to labor participation, including the Law admission and expulsion BES, the Law labor strangers BES annex the Law of July 4th, 1948 containing the institution of a labor bureau BES and the Labor safety law BES. One can also think of the Establishment law BES, the Law primary education, the Law Financial Markets and the prices law BES.
2. To what extend is the government on the islands sufficiently organized to execute the tasks and competences it is appointed for based on the valid legislation? Are the islands sufficiently equipped to execute new legislation and regulation, both regarding personnel and finance? Are there differences in equipping for the laws valid before 10-10-10 and those that came into effect on or after that date? Is there a development during the years after 10-10-10? What are the causes behind the observatory statements done?
The functioning of the new governmental structure
Regarding the governmental embedding the Council of State points out in its administered information that with the choice of a public entity to shape a ‘direct relation’ with the Netherlands the exact fulfillment of the choice was not exactly clear. The evaluation can be used to collect factual material to see to what extend adjustments – seen the specific situation on the three islands – are necessary.
The workings of the new governmental structure are central in this evaluation complex: the question about the functioning of the public entities and the cooperation between the public entities and the State and the other countries of the Kingdom. The execution of the specific legal evaluation obligations in the Law public entities Bonaire, Sint Eustatius and Saba (WolBES) and the Law finance Bonaire, Sint Eustatius and Saba (FinBES) deal with this too.
First, the question about the measure of good governance. Below examples of possible evaluation questions have been incorporated.
1. To what extend are the stipulations in the WolBES and in the FinBES effective and what effects do these laws have in reality?
2. Have the deviations in the WolBES and in the FinBES from the Municipality law proven effective and proportional to safeguard good governance?
3. Has the governmental embedding of Bonaire, Sint Eustatius and Saba as public entities been supportive for good governance that is geared towards the specific situation on these islands?
4. To what extend do the insular character, the small surface, the limited population size and other factors related to specific characteristics of the islands influence the functioning of the governance and how it performs it tasks and competences?
5. Which qualitative and quantitative criteria for good governance can be pointed out? To what extend are the stipulations incorporated in the WolBES and in the FinBES for the promotion of good governance effective in reality?
6. How has the separation of functions and competences between the island council and the island commissioners worked in reality and how has the lieutenant governor fulfilled the role of president of both the island council and of the executive council?
Secondly, the question about the designation and the partition of competences and tasks among the various governmental organs in Caribbean Netherlands and the partition between the State and the public entities. It also regards the size of the autonomy in relation to the governing power of the public entities and the workings of the (financial) supervision including the relation between horizontal and vertical supervision. Here the function of the Audit-General’s Office and of the (national) Ombudsman must be incorporated. Below a few examples of possible evaluation questions have been incorporated.
1. Is the designation and partition of competences and tasks among the various governmental organs in Caribbean Netherlands efficient and effective?
2. Is the partition between competences and tasks of the State and of the public entities, in relation to the governing power (including the possibilities of the public service apparatus) at the island level efficient and effective?
3. There are several supervisory functions in Caribbean Netherlands, including the Board financial supervision. Which financial instruments contribute effectively to the financial insight of the islands and how does the vertical supervision relate to the horizontal supervision?
4. To what extend do the several supervision instruments allow differentiation and gradual application, in light of the possible differences between the three islands regarding governmental capacity?
5. Is the organization of the function Audit office and of the function Ombudsman effective, seen the small scale and culture of the islands?
6. How have the relations between the public entities and the countries of the Caribbean part of the Kingdom developed? Which possible bottlenecks appear and what causes these?
7. To what extend do the inhabitants of Bonaire, Sint Eustatius and Saba feel themselves (democratically) represented in relation to the Eurpean part of the Netherlands and in relation to the countries of the Caribbean part of the Kingdom? To what extend are the islands capable of an effective representation of interests?
Thirdly, the question of the financial ratios. This includes the development of the insular and government expenditure. Below are examples of possible evaluation questions included.
1. How did the Government Expenditure and insular expenses developed since 10-10-10 respect of the distinct tasks? Is there any difference between Government Expenditure and insular expenses? Is there any difference between structural funding and occasional funding? How is this development and the potential to explain the differences and what is the actual meaning?
2. How does this work out on the specific benefits tool of the law on financial relations, that the special benefits tool is based on?
3. What has been the influence of the so-called reference to both the insular-like government expenditure?
Consequences for the population
Already in its administered information on September 18th, 2006 the Council of State made the remark about doing an evaluation after a period of five years after the transition to the new relations “in order to determine whether the interests of the population were safeguarded enough in the new relations”. The evaluation must give a description as factual as possible of the actual situation at the moment of the transition in comparison to the level of provisions before the transition, as far as that is possible based on the available data, also taking into account the social-economic differences between the islands. It is not about making a comparison between the level of provisions in the European part of the Netherlands and the Caribbean part. Here too it is about the primary answer to the question about what the governmental agreements were about an acceptable level of provisions to strife for and how these have been executed and what role the islands themselves and the Kingdom played in that.
It is also of importance to put the development of the level of provisions against the background o a description of the development of the economic situation on the islands since 10-10-10, as far as this is possible based on the available data. In this part the tax law BES and the customs and excise duty law BES are evaluated for efficiency and effects in reality. Here too counts that the agreements as such are not for discussion in this evaluation about the efficiency and the practical effects.
Below a few examples of possible evaluation questions are incorporated.
1. How has the economic situation developed itself since 10-10-10?
2. Have the goals striven for with the tax law BES and the Customs and Excise Duty law BES (sufficient revenue, feasibility, support on the islands and a boost to promote local entrepreneurship) been attained and what are the effects of these laws in actual practice?
3. How has execution been given to the agreement from the governmental consultation of January 31st, 2008, taking into account the specific circumstance as mentioned in the list of decisions of that consultation, to formulate norms for a level of provisions on Bonaire, Sint Eustatius and Saba that is acceptable in the Netherlands for the primary areas of education, healthcare, social security and safety?
4. How has the level of provisions in the of special benefits based areas agreed upon during the governmental consultation of January 31st, 2008 – education, healthcare, social security and safety, complemented with physical infrastructure, including the accessibility of the islands by water and air – developed against the background of the special character of Caribbean Netherlands and the norms agreed upon to formulate, and against the background of the standards of agreement for a level of provision acceptable in The Netherlands?
5. What are the effects for the population of the policy with regard to the level of provisions in the areas of education, public health, social security, safety and physical infrastructure?
6. What was the input there of each of the parties (public entities and Kingdom) to the development of the level of provisions and how has the partition of tasks between the public entities and the Kingdom and the mutual cooperation regarding the development of the level of provisions worked?