There is much debate about whether it is better to anchor financial supervision in a rijkswet or in a landsverordening. The big question is why is it so important for the Netherlands to anchor financial supervision in a “consensus-rijkswet”?
A landsverordening is a law that our own government and parliament make. One
Landsverordening is an instrument for creating rights and obligations. It creates the power for the government along with parliament to regulate what our national entities and our citizens can and cannot do. We have for example a Landsverordening algemene ziektekostenverzekering (or Landsverordening AZV), which is a general health insurance scheme. This land ordinance stipulates, among other things, that we have a fund for the costs of care. It gives certain powers to the minister in charge of public health and regulates who can be an AZV insured. It is important to note that the government and parliament can only make a landsverordening for matters pertaining to Aruba’s autonomy. Creating a landsverordening is only possible for a matter
interior of Aruba. The governor carries out continuous supervision to check that the laws that ministers and parliament want to pass remain within the framework of our autonomy. When the governor finds that a bill goes beyond the limits of our autonomy, the governor will refuse to sign the bill. Thus the governor can prevent a bill that violates the limits of our autonomy from becoming a landsverordening. It is important to ensure that Aruba remains within the framework of its own autonomy so that Aruba does not start regulating matters that only the Kingdom can regulate. It deals with matters of the Kingdom, such as defence of the Kingdom’s territory, international relations and Dutch nationality. The Government of the Kingdom together with the Dutch Parliament can only make laws on these matters. These laws are called rikswet. A rijkswet creates the rights and obligations for, among others, the entities of the Netherlands, Aruba, Curaçao, Sint Maarten, but also for citizens throughout the Kingdom. A rijkswet is higher than a landsverordening. This is expressed in the fact that the governor has the power to refuse to sign any land ordinance that conflicts with a bill. Thus the governor can block a landverordening that is issued against a rijkswet from coming into force. If the governor does not stop a landsverordening that violates a rijkswet, the Kingdom government still has the possibility to suspend or destroy the landsverordening. In addition, the government of the Kingdom can come up with an anwijzing in the form of a KB (Koninklijk Besluit) for the government of Aruba to comply with. If that doesn’t work, the Kingdom government can come up with an Algemene Maatregel van Rijksbestuur for the Kingdom itself to regulate what should be regulated for Aruba. An example of how far such a measure can go is the
Dutch intervention in St. Eustatius, where St. Eustatius temporarily lost all of its democracy due to lawlessness. In addition to the landsverordening and the rijkswet there is another legal instrument to create the rights and obligations for the Netherlands, Aruba, Curaçao and Sint Maarten. That’s the underlying arrangement. The onderlinge regeling is enshrined in Article 38 (1) of the Statute for the Kingdom. This instrument is for the Netherlands, Aruba, Curaçao and Sint Maarten to make legal commitments to each other. Examples of onderlinge regelingen are the endless protocols that Aruba, Curaçao and Sint Maarten have concluded with the Netherlands, such as the protocol of 13 November 2020 that Minister-President Evelyn Wever-Croes signed to provide a legal basis for the Landspakket for Aruba. As with an onderlinge regeling, it is an agreement between, for example, the Netherlands and Aruba, the parties signing the onderlinge regeling.
You are under a legal obligation to keep the promises you have made. Although the onderlinge regeling is regulated in the Statute, one party may have little or no confidence that the other party intends to comply. The Statute provides a solution to this trust problem in Article 38 paragraph 2. The statute creates the possibility of anchoring an unterlinge regeling in a rijkswet. This is a peculiar bill, as it does not regulate a Kingdom matter, as is usually the case with a bill. In this case the legal basis of the rijkswet in question is an onderlinge regeling itself. Since an unterlinge regeling is mutually agreed, this type of legislation is called a consensus-rijkswet. Now we can answer the question why the Netherlands wants to anchor financial supervision for Aruba in a consensus-rijkswet. The Netherlands does not trust the government or parliament of Aruba. This has to do with the fact that in the Netherlands the AVP and MEP cabinets have created serious risks for public finances. Our parliament has not proved to be critical enough to stop mismanagement by some of these cabinets. Since the Netherlands itself has invested a lot of money in Aruba, the Netherlands has an even greater interest in having the guarantees that the Kingdom can intervene if Aruba is left unfulfilled. In this regard, the Netherlands simply wants assurance that Aruba will raise the quality of its financial management.