Taking Ownership
of Human Rights Towards a maturing Dutch Caribbean.
Presentation by the
Hon. Mr Justice Jacob Wit Judge of the Caribbean Court
of Justice
At the occasion of the launch of the Dutch Caribbean
Human Rights Committee
University of the
Netherlands Antilles Curaçao, October 18, 2007

Distinguished guests,
ladies and gentlemen,
We are living in interesting times. Under our very
eyes the constitutional structures of our islands are
being changed. Only a few of us, however, are involved
in that process. Most of us are looking on from the
sideline and are wondering what will come of this.
I will argue that if there ever was a time for the
citizens of these isles to get involved in the political
processes of our societies that time is now. I am of
course not talking about party politics, although that
is also necessary, but about politics in a much broader
sense. Democratic governance is no longer limited (if it
ever was) to the right to vote as it now has been widely
accepted that it also embraces both the rule of law and
the right to participation in the political process
including, besides the right to vote, also the rights of
assembly, association and expression. The latter
includes of course the right to have free, independent
and pluralistic media.
It is in this context that the launch of the Dutch
Caribbean Human Rights Committee (DCHRC) fits in nicely.
Indeed, here we are, assembled, celebrating the birth of
a new association in the presence of the press that,
although not without faults, is still free, independent
and pluralistic.
My point of departure is that for many years now the
Dutch Caribbean peoples have been living in a stage of
constitutional and societal adolescence; that, from a
constitutional point of view, for far too long, we have
been lingering in a protracted age of puberty. The time
has come, it seems to me, to grow up and mature. But we
have to act and speak now, or, as they say, for ever
hold our tongue.
Our local politics have generally not been of a level
that could be appraised as satisfactory. As a whole, the
quality of politics has deteriorated substantially.
Apart from incidental cases of rampant corruption, our
political directorate has been behaving as the
proverbial student, living in lodgings paid for by his
parents, regularly and irregularly asking them for some
more money during the course of the month and taking his
dirty laundry home every weekend for his mother to clean
them; the same student who, when his mother cautiously
seeks to convince him to act more responsibly and behave
properly, will defiantly tell her that she should not
meddle in his private affairs as he is now an adult who
knows how to take care of himself and who knows his
rights. Of course, Mother also has her own agenda (as
people usually have).
However, it would not be totally fair to put all the
blame on the politicians. After all, we are the ones who
elected them and we are the ones who gave them a free
hand. And it is certainly true that in our small scale
island societies, politicians are regularly being
pressured by individuals, groups or even society as a
whole to provide for certain things even while we all
know very well that there is no money to do so.
One of the idiosyncrasies of our postcolonial
arrangements with the Mother country is that we are
living in our own constitutional fairy tale portraying
ourselves as full members of one (almost) imaginary
Kingdom, consisting of three separate but equal
countries all sublimated into a constitutional Trinity
the mysterious structure of which is enshrined in a
document of quasi-sacred character: the Charter of the
Kingdom. This “one but three, three but one”
construction, once, aptly I think, described by me as “a
paradigm of Dutch pragmatism, neither troubled by
constitutional logic nor constitutional principles” has
caused much havoc in our relations with The Netherlands
as it has blurred our (and their) vision on the
realities of our constitutional situation.
There seems to exist a tendency among the politicians
on both sides of the Atlantic, only when it suits their
purposes of course, to invoke the magic words “We are
all Dutch!” and “We all belong to the same Kingdom!”
This has brought Dutch politicians to criticize, e.g.,
the poor state of our prisons and the appalling poverty
that exists in some parts of our islands. By using the
incantation “How is this possible in our own Kingdom?”
they justify their stance to chastise our politicians
for not keeping our prisons up to standards and for not
alleviating the fate of our poor. The same rhetorical
device, however, has sometimes been used by our own
politicians in seeking to obtain for their people the
extravaganza of certain benefits which do exist in The
Netherlands (like relatively copious social security
allowances).
In both cases the answer has predictably been: yes we
are one, but this particular matter falls squarely and
clearly outside the competence of the Kingdom and should
therefore be deemed an internal affair which has to be
dealt with by the respective countries themselves. In
other words “Mind your own business!” Add to that the
fact that our beloved Kingdom has no Parliament, no
juridical personality (meaning that it cannot be sued),
and no money, and you might understand why I just spoke
of an “almost imaginary Kingdom.”
I should also point out that the very word “Dutch”
has a double meaning which renders sometimes true and
sometimes not the submission that we are all Dutch. On
the one hand, being Dutch means that one is a Dutch
citizen or has the Dutch nationality (which is certainly
true). But it might also mean that one belongs to the
Dutch people in a social, cultural and often ethnic
sense (which is not true) . That is why we still
distinguish “Yu’i Korsou” and “Macamba” although rare
cases of transformation from one into the other have
been reported. As a rule, the European Dutch are always
Dutch and the Caribbean Dutch are only Dutch in one
sense, an incongruity that lays at the root of problems
that have either manifested themselves already or are
still looming in the dark. At any rate, this form of
“double Dutch” has been a source of many false and
consequently unfulfilled expectations.
All of these factors and many more, have contributed
to the mess that our public finances and the general
state of our Dutch Caribbean countries are currently in.
And in the midst of the turmoil caused by debts of
breathtaking magnitude and clear examples of political
mismanagement, we find ourselves now in the process of
restructuring our constitutional positions as Curaçao
and St Maarten are seeking to obtain “country status”
comparable to that of Aruba, and the other three islands
are aiming to be fully “integrated” in The Netherlands,
a position that seems untenable to me as is already
becoming clear from what we have seen thus far. As I see
it, the creation of these so-called BES islands only
adds another layer of obscurity to the already
impenetrable and multi-interpretable structure and
content of our Kingdom Charter, a characteristic which I
suppose it shares with other “sacred” texts.
What does all this has to do with human rights, you
will ask. Well, everything, I would say, as I am now
about to explain.
The restructuring of the Netherlands Antilles is all
about the furthering of a fundamental right its
inhabitants have: the right to self-determination, which
is the very first right mentioned in the International
Covenant on Civil and Political Rights (ICCPR), a Human
Rights Treaty to which we are a Party.
As it was felt by a vast majority of our peoples that
the old structure of the Netherlands Antilles is no
longer helpful to our advancement as a people but,
indeed, more of an impediment to our future development,
and as this was finally recognized by the Mother country
at yonder side of the Atlantic, we have embarked on a
series of negotiations and meetings of all sorts to
achieve these goals.
Initially, the demands from this side of the Kingdom
were of a level that did not reflect much understanding
of the nature of this process. Especially Curaçao was
clear and simple in its wishes: they wanted nothing
less, and maybe a little bit more, than the separate
status Aruba already has. St Maarten, having much more
to gain in comparison with Curaçao, which after all
already has the seat of the central government, was a
little less robust and one could say more cautious in
its demands. Nevertheless, the discussion took place on
a level of “we want our own this, and we want our own
that.” As such, there is nothing wrong with this. In a
sense it flows from the concept of equal treatment and
it also appeals to something that is deeply felt by all
and sundry. In the words of John Stuart Mill:
“If a person possesses any tolerable amount of common
sense and experience, his own mode of laying out his
existence is the best, not because it is the best in
itself, but because it is his own mode.”
That is true of course, but it is not the whole
truth. Things are usually more complicated than that.
There is now I think a growing tendency in international
law to circumscribe the right to self-determination in
the sense that an intended disintegration of a country
should not lead to instability or to a substantial lower
level of well-being or a loss or deterioration of
governmental quality in terms of essential elements like
the rule of law, democracy, good governance and human
rights. In that light it is understandable that the
Dutch government has offered substantial financial
relief to the islands in order to bring the total debt
in the public sector down to a level where it can be
managed. In fact, it would have been irresponsible of
them to agree with the process of dismantlement of the
Netherlands Antilles if they had not offered this relief
without which the new entities would not be viable or
would at least not be able to maintain a sufficient
level of wellbeing and democratic governance for their
peoples. Although it is theoretically possible to make a
distinction between the constitutional restructuring of
the Antilles and the financial restructuring of its
public sector(s), realistically and from the view of
international law it would seem to me that these
processes are inextricably linked.
Now, Holland would not be Holland if it would have
simply given us the money to pay off the debts without
any further conditions. Nobody would expect that and
from the view that countries, like people, have to
mature (which usually means learning it the hard way)
this would have been a very unwise thing to do. So,
there is really no objection against imposing conditions
as such and neither can one object to the fact that a
lot of bickering is going on now with respect to the
question of what these conditions should entail and to
exactly what extent. That is simply all in the game.
That the Dutch government is seeking to
institutionalize some form of supervision on our
politicians as to their way of managing our public
finances in order to avoid a reoccurrence of the
financial mess we have seen emerge, seems to be in
keeping with the overriding responsibility which they,
wearing the mantle of the Kingdom of the Netherlands,
still have. I do not have a problem with that. Where
they seem to go wrong, however, is the way in which they
apparently seek to establish that supervision as they
seem bent to take that responsibility permanently out of
our hands.
Understandably, the approach from our side has been
to resist them as much as possible in an effort to give
away as little “autonomy” as possible. But whose
autonomy are we talking about? It is as though the
autonomy that is being pursued is nothing else than the
privilege of our politicians to do what they want and
this is of course very problematic.
In my view, both approaches are to be deplored. Going
back to the basics we have to be mindful that this whole
enterprise of constitutional restructuring should be
aimed at furthering the right to self-determination of
us, the Dutch Caribbean peoples. At the same time we
should be mindful of the fact that this is not a right
per se but one that implies a duty for us to foster in a
meaningful way the high ideals of democratic governance.
If we only focus on the external outline of our new
constitutional arrangements, let’s say a separate status
similar to that of Aruba, we would have achieved very
little because internally, and thus basically,
everything would stay the same. In order to mature in
the big bad world of today one needs to take
responsibility for those things that matter. One cannot
claim the right to stand on ones own two feet whilst
staying in bed. One has to get up and stand. The right
to carry responsibility for ones own affairs, therefore,
implies that one starts carrying that responsibility.
Even if it were true that “Mother knows best” we cannot
accept that “Mommy” will take care of us to eternity.
And so, any arrangement that sees to it that Mother will
for ever be in charge of our affairs will reduce us to
eternal adolescents, pitiful creatures indeed. This
would be a violation of our right to human dignity which
is I think the most fundamental right there is.
What are we to do to avoid this impending violation?
My answer is that we have to start behaving as adults.
We have to take our fate in our own hands even though,
for the time being at least, we will stay within the
confines of our almost imaginary Kingdom which, by the
way, is still real enough to produce both limitations
and benefits for us.
Experience has taught us that the ideals of
democratic and proper governance are still very far away
from our daily realities. This is so because we never
considered these ideals to be really ours. In our
sometimes petty way of looking at things we thought of
them as “belonging to another world.” And in a way we
still do. Very often one hears politicians and citizens
alike complaining about these inconvenient “human
rights” that only seem to favour criminals. And in times
of emerging crime waves even politicians who should know
better are eager to promote the idea of declaring some
state of emergency in which we could then easily limit
or do away with “this foolishness of human rights.”
Nevertheless, we all understand that we cannot escape
the consequences of these fundamental rights as they are
laid down in the many treaties to which we are a Party
and we are probably aware that many of these rights, as
a consequence of our “monist” approach of international
law, have a direct effect on our local legal system even
to such extent that they can be used to set aside the
application of our domestic laws. Be that as it may,
these human rights, although more and more applied,
still seem very often “foreign” to us. Contributing to
that feeling perhaps is the fact that the signing of
these treaties have mostly been initiated by the Mother
country and that they, after reluctantly being approved
by us, are usually being applied by the judges most of
whom are of European stock.
It would seem to me that what we have to do is to
rethink our constitutional position ourselves. We’ll
have to find our own mode of laying out our existence.
And so, we have to refocus on our own Constitution
(Staatsregeling). This should be our own sacred text in
which we lay down what we stand for and what we think
our country should strive for. This should be our
founding document in which we enshrine the cohesive
principles of democracy, good governance and the rule of
law ensuring a government of laws, not of men. This
should be the basic text by which we seek to define, in
the words of Dr R. Martha, the “strategic goals” of our
little island nations and by which we internalize those
human rights that we hold dear and consider fundamental
for our identity and our development, thus taking
ownership of those very rights.
It is true that we have a draft constitution for
Curaçao. But I am afraid that that document is as
unsatisfactory as it is uninspiring. In fact, one could
argue that it is worthless, although I would not want to
go as far as that. Basically, it is not much more than a
redraft of the existing constitution of the Netherlands
Antilles. Now, it is true that in this draft one can
find a number of fundamental rights, but the problem is
that these are mere clones from those mentioned in the
Dutch constitution a document that has made itself
virtually irrelevant due to the fact that it prohibits
the judiciary to review the constitutionality of Acts of
Parliament which means that the Dutch constitution
cannot fully be enforced. Following the example of the
Aruba Constitution the Curaçao draft does make it
possible for the courts to review legislation against
the background of the 17 classical fundamental rights
mentioned in the draft but, as I will shortly set out,
this is far from satisfactory.
Let me first say this. The Dutch constitutional model
is not suited for the Dutch Caribbean. It may be a good
model for Holland (although even there that is being
disputed), but it is not good for our small scale
societies. The Dutch parliamentary system has been
effective in Holland because, at least in the past, the
Dutch parliamentarians had enough integrity and
knowledge to carry that system. Experience has taught us
however that this is not the case with us. The Dutch
position that we as citizens of the Dutch Caribbean have
to be protected against the possible excesses of our
very own politicians is correct.
The solution to that problem, however, is not to give
the Dutch politicians and bureaucrats the power to
supervise our politicians and bureaucrats. The solution
lies with us. We the citizens of these islands must have
more tools to keep our politicians in check. And these
tools should be provided by our Constitution. The
solution is to adopt a constitution that is truly the
supreme law of the land and to charge our judiciary with
the duty to uphold that Constitution entirely (not just
a part of it) so as to offer us the full protection of
the law.
This is not to give more power to the judges or to
establish judicial supremacy but simply to give power to
the people themselves. After all, even under a
constitution that is supreme and wholly reviewable the
initiative to take steps against the government of the
day lies not in the hands of the judges but in those of
the citizens themselves. Giving ourselves these powerful
means to reign in our politicians will ensure as much as
possible the full enforcement of our constitution and
will keep our politicians focused on the fact that they
are serving us and not themselves. That being said, we
will have to start looking at the content of our
constitution in a very different way.
I will give you a few examples of what I am talking
about. Our draft constitution provides for a General
Chamber of Audit and an Ombudsman, both institutions
designed to monitor and possibly correct the executive
government. However, these provisions are virtually
meaningless without an additional provision demanding an
efficient output from these institutions and ensuring
that the government provides them with sufficient means,
financial and otherwise, to discharge their duties in a
proper and timely manner. But even if such a provision
is made, it would still be irrelevant if it could not be
enforced if and when the government failed to comply.
Another example. At the presentation of the draft
constitution it was proudly announced that section 81 of
the draft requires the government to present to the
parliament a yearly so-called balanced budget. According
to paragraph 2 of that section the budget will have to
be prepared in accordance with norms that will be
established by law. If you think that such a provision
would be able to stop the government from messing up our
public finances ever again, you are wrong. In the first
place, the fact that the budget will be prepared
according to norms we do not yet know and which can be
established with a simple majority in parliament does
not sound very reassuring. Secondly, even if the
government would bluntly present an unbalanced budget,
probably claiming force majeur, this would have no
effect whatsoever, because when constitutional review is
not possible – as would be the case under the draft
constitution – ordinances (statutes) that violate the
constitution cannot be struck down. The budget of course
is established by ordinance.
A last example. Very often the constitution demands
that certain important matters be laid down in formal
legislation usually by or pursuant to an ordinance.
However, if the constitution does not allow for full
judicial review and if the government and the parliament
have not complied with the constitutional requirement of
making the law, nothing can be done. In that case the
courts are powerless to enforce the constitution and to
order the government to introduce a Bill in parliament.
A constitution such as proposed by the draft is
nothing more than a harmless symbol, an ineffectual play
thing for stir-eyed idealists, philosophers and smart
politicians.
I would respectfully submit to you that we do not
need that kind of constitution and we should not want it
either. I would go even further. If this draft becomes
our constitution, we will have failed miserably in
developing our right to self-determination. I would even
submit that in that case we would not deserve to call
ourselves autonomous, whatever the arrangements with the
mother country.
If, however, we would embrace the constitution as our
supreme law with full judicial review – as, by the way,
St. Maarten has done – then we would be required to have
a much closer look at our constitution before we adopt
it. When we realize that anything we lay down in the
constitution could some day be enforced by the
judiciary, going even as far as striking down newly
adopted legislation as unconstitutional or ordering the
government to present legislation to the parliament, it
will make us pause when we draft the constitutional
duties of the governmental departments and the
fundamental rights we want our citizens to have. Indeed,
it is then that we cannot afford to sprinkle our
constitution with fancy ideals and hollow phrases
anymore. We will have to be very precise.
Our new constitution should not only be a supreme
document, it should also, as I said before, be a
defining document. This means that we will have to make
a decision as to which of the many human rights that
exist in the world we want to enshrine in our
constitution. Because by enshrining them we will take
ownership of them.
In the first place we will have to look at the human
rights that already have legal effect in our
jurisdictions. But we should not necessarily stop there.
For example, the African Charter of Human Rights and
Peoples’ Rights mentions the right of all peoples to
have “a general satisfactory environment favorable to
their development.”(article 24). This is the only human
rights treaty I know of, that does so. I would like to
think that the environment is a very important issue for
Caribbean islands, not only because their livelihood is
at stake (think of coral reefs, tourism and fisheries),
but also because it involves very important health
issues. The latter have become very obvious in Curaçao
where serious cases of heavy pollution have been
reported. So, this might or should be a human right that
we would want to consider as a candidate for our
constitution.
Surprisingly, some of the most fundamental human
rights as laid down in the two important general human
rights treaties, the International Covenant and the
European Convention of Human Rights, both in force in
our isles, are not mentioned in our draft constitution,
probably because they are not mentioned in the Dutch
constitution. I am referring, inter alia, to the right
to life and the right not to be subjected to torture, or
to cruel, inhuman or degrading treatment or punishment .
I do not have to remind you that these rights are not
always being adhered to in the Dutch Caribbean.
Another right that at least should be considered as a
candidate for our constitution is the prohibition of
slavery and of slave-trade in all their forms . Apart
from the fact that this fundamental right has lately
gotten new dimensions, a country that has gone through
the evils of slavery and slave-trade would be wise to
remind itself of these sad and wicked times in order to
foster a general conviction that those days should never
be forgotten and should never return. It is significant
that most independent Caribbean States have enshrined
these particular fundamental rights in their respective
constitutions.
The fundamental right to education as expressed in
the Dutch constitution has a very peculiar twist in that
it fosters both public-authority schools and
denominational schools. I do not mind that we copy this
very peculiar arrangement as long as we realize that
this provision results from fundamental, and typically
Dutch, discussions that have still not ended . As a
general rule, however, I think we would be better off
copying the structure of the human rights as worded in
the Human Rights treaties, although we might consider
sharpening them here and there.
I say this because by following the structure of the
human rights as formulated in those treaties we will
make it clear for ourselves that most of these rights
are not without limitations. Lawyers and judges of
course are, or should be, familiar with this phenomenon,
but for the ordinary citizen this is not always the
case. By transplanting the structure of those
fundamental rights that we have decided to admit into
the Hall of Fame of our constitution into its text we
will bring home to all of us not only which of these
rights may be limited but also how and under what
conditions. At the same time it will be clear to all
that there can be no derogation from some of these
rights (like the right not to be subjected to torture or
cruel or degrading treatment). That is also good to
know.
Using this structure we will further make it clear
that the rights as expressed in our constitution are
inextricably linked to those in the treaties which will
invite our judges to tap in into the jurisprudence of
Human Rights courts while interpreting our domestic
constitution. Although it is true that the courts are
already using this jurisprudence and are in fact
compelled to do so, there is still an important
difference. By bringing the human rights down from the
high heavens of international law to the earthly sphere
of our own constitution we have in fact made these
rights our very own while at the same time acknowledging
that we are part of a bigger world, bigger even than
this “huge” Kingdom of ours.
This approach will also bring home that limitations
of these fundamental rights, if at all possible, can
only be lawfully imposed if they are provided or
prescribed by law and if they are necessary in a
democratic society for one or more of the legitimate
purposes defined in the provisions concerned. The Dutch
constitution, and in its footsteps the draft
constitution of Curaçao, usually only mentions the first
condition but that is clearly not sufficient. Using
European case law when interpreting the constitution
will therefore refine and enhance our understanding of
these fundamental rights. In accordance with that case
law it is not enough if the statute simply allows
certain infringements of the right concerned even if
those infringements are proportionate and for legitimate
purposes.
The requirement to provide or prescribe these
limitations by law also relates, according to the
European Court of Human Rights, to the quality of the
law, requiring it to be compatible with the rule of
law.” This means that when the law allows certain
infringements of the fundamental right it should be so
structured that it provides adequate legal safeguards
against abuse and that, where the law confers a power of
discretion to the authorities, the law should also
“indicate the scope of that discretion.” It is thus that
the Courts if conferred with the power of full judicial
review would be able to protect and uphold the rights of
the citizens.
By transforming treaty rights into constitutional
rights another valuable development may ensue. “Monist”
thinkers that we are, we never realize that not only
does international human rights law influence our
domestic law but interpretation of domestic fundamental
rights may also very well affect international case law.
This is so because of what we call the margin of
appreciation that is allowed to the individual states to
conceptualize and implement these rights. The
development of human rights law is in a sense a two-way
street, at least more than we think.
Bringing human rights home and taking ownership of
them also entails that we confront ourselves with the
question under which circumstances we might be relieved
from the duty to observe and honor these rights. In the
recent past it has regularly occurred that pressured by
the populace and certain media politicians have sought
to find excuses to suspend some of the fundamental
rights by declaring a quasi state of emergency or
purporting to pretend that such a state in fact existed.
It has also been a popular theme during election time.
Whenever crime is on the rise utterances like these are
heard. Although these statements are reject able and
irresponsible, it is easy for them to be made because
our current constitution does not even mention the power
to declare a state of emergency so that nobody really
knows what the politician is talking about.
It is a positive development that the draft
constitution seeks to fill that gap by introducing a
section 91 in which some features of declaring a state
of emergency are outlined. It is also positive that the
draft makes clear that only a limited number of
fundamental rights may be departed from: the freedom of
the press, the right of association and assembly and
also the inviolability of the home and the right to
privacy of correspondence. The proposed section also
makes mention of the requirement for an official
proclamation of the state of emergency. It is, however,
silent on such important principles as the principle of
exceptional threat, strict necessity and international
notification. In other words, declaring some state of
emergency in case of rising crime is out of the
question, at any rate if the government (even with the
support of parliament) would want to succumb to
pressures from groups advocating the suspension of some
inconvenient rights.
It is especially in hard times and difficult
situations that we can test how true we are to our
fundamental values and principles. Compared with the
situation in the state of Israel our own difficulties
are really child’s play. Nevertheless, many times the
Israeli Supreme Court stood its ground. Aharon Barak,
the former President of that Court once discussed this
in a judgment in which his Court held that violent
interrogation of a suspected terrorist is not lawful,
even if doing so may save human life by preventing
impending terrorist acts ( a “ticking bomb” situation).
He held:
“We are aware that this decision does not make it
easier to deal with that reality. This is the fate of
democracy, as not all means are acceptable to it, and
not all methods employed by its enemies are open to it.
Sometimes a democracy must fight with one hand tied
behind its back. Nonetheless, it has the upper hand.
Preserving the rule of law and the recognition of
individual liberties constitute an important component
of its understanding of security. At the end of the day,
they strengthen its spirit and strength and allow it to
overcome its difficulties.”
And he divulged:
“Deciding these applications has been difficult for
us. True, from the legal perspective, the road before us
is smooth. We are, however, part of Israeli society. We
know its problems and we live its history. We are not in
an ivory tower. We live the life of this country. We are
aware of the harsh reality of terrorism in which we are,
at times, immersed. The fear that our ruling will
prevent us from properly dealing with terrorists
troubles us. But we are judges. We demand that others
act according to the law. This is also the demand that
we make of ourselves. When we sit at trial, we stand on
trial.”
The two major arguments brought forward against full
judicial review in the Dutch Caribbean are that this
would form a break with Dutch legal tradition and that
most of our judges are “not from here” or, to put it
more precise are “European whites” so that a shift of
power towards the judges might be perceived as a
reintroduction of some form of colonialism.
It would take me a lecture in itself to seriously
deal with those arguments but I am already talking too
long and as I must have mercy on your souls I will not
seek to exhaust you. Let me just make two points.
Tradition is never a real argument. If it was, the world
would look very differently. Talking of breaking with
tradition: all the independent countries in the
Commonwealth Caribbean, all former colonies of Britain,
got their independence upon condition that they would
have a written constitution being the supreme law of the
land and imbued with the principle of the separation of
powers charging the judiciary with the duty to review
the constitutionality of all laws and governmental acts.
This “package” was demanded by England who herself did
not even have a written constitution or judicial review
of statutes (as is still the case).
As to the second point, I would like to say the
following. It has to be accepted by all politicians,
current and future, that they must be closely monitored
in the way they ply their trade. This is not just a
demand made by the Dutch government, it has also and
more importantly so been demanded by the people. Even
the report of drs. Caryl Monte who at the time was
hailed as the saviour of the country by those that
vehemently opposed the “final declaration” pertaining to
the new constitutional structure of the Antilles
suggested that the politicians should be put under
strict supervision of new and old local institutions,
virtually sidelining the parliament.
But even these institutions would need a final back
up from the Courts and so the choice, to put it bluntly,
is this: should our politicians be supervised by Dutch
judges or Dutch politicians and bureaucrats. I would
choose the judges as they are at least bound by our laws
and for many more reasons. But that is perhaps for
another time.
At the end of the day, however, this is not about
judges. It is about us, the people. It is about our
right to self-determination.
Let me end with the following citation:
“..because human rights enable and legitimize the
free choice of , the individual, they strengthen the
dominant structure of modern society, which is based
upon free inclusion and individual mobility… As such,
human rights constitute the unnoticed and elementary
condition for participation within modern society. Human
rights enable us, without paying further heed, to take
part in the richness of social roles, networks,
associations and organizations that make up modern
societies.” (G. Verschraegen, ‘Human Rights and Modern
Society: A Sociological Analysis from the Perspective of
Systems Theory’ (2002)
And so, members of the DCHRC, here it is. There is
work to do, a lot of work in all fields. There will be
fiery debates, there will be uneasy silence. There will
be enthusiasm, there will be unwillingness. There will
be victories, there will be defeats. There will be
applause and there will be resistance. You are a group
that might be destined to take the lead in discussing
the difficult issues of human rights and by having them
debated enlighten the people. There is still a long way
to go and it will take perseverance and courage to
continue on the journey you have now embarked upon.
I trust that you will keep the faith and that you
will stand tall. I wish you well in your endeavours. I
wish our countries well in our quest for maturity and
justice.
I thank you.
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