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The New Judicial System of the Netherlands Antilles

The judicial system in the Netherlands Antilles and Aruba presently consists of the Court of First Instance of the Netherlands Antilles, which has a seat/location on each of the islands of the Netherlands Antilles and the Court of First Instance of Aruba. The Joint Court of Justice of the Netherlands Antilles and Aruba (the “Court of Justice”), is the appeal court of Netherlands Antilles and Aruba and the highest court based in these countries. The Final Instance for any appeal is the Supreme Court of the Netherlands (the Hague), which is the highest court in the Kingdom of the Netherlands.

Final Declaration/Court of Justice
In the context of the upcoming new constitutional status of the Netherlands Antilles the Court of Justice submitted a memorandum in February 2005, containing its views on the reorganization of the judicial system. A large part of the provisions on the organization of the judicial system, as contained in the Final Declaration (“Slotverklaring”) of 2 November 2006 is based on this memorandum. The contents of this important memorandum and to what extent the Final Declaration has adopted the suggestions contained therein, will be discussed hereafter.

Organizational problems
In its memorandum the Court of Justice first observed that there are a number of organizational problems concerning its formation, organization and operations, with which it has to deal. These organizational problems are a consequence of a lack of structural collaboration between the Netherlands Antilles and Aruba.

Independent legal entity
The Court of Justice suggests that the Court should become a separate independent legal entity, whilst the judicial system as such remains subject to Kingdom provisions and governed by a Kingdom act. According to the Court of Justice this is the only way to guarantee the institutional independence, integrity and good quality of our justice system. The Final Declaration has not touched on this subject.

Joint Court
The Court of Justice in its memorandum further discusses the importance to stay a joint Court of Justice. In its opinion the establishment of separate courts for the new countries (i.e. the individual Islands of the soon to be ex-Netherlands Antilles (Curacao, Bonaire, Sint Maarten, Saba and Sint Eustatius) and Aruba), would adversely affect the quality of the Court.

In small societies the judicial quality can be placed under pressure because it is difficult to find local personnel that is sufficiently qualified. Moreover it is difficult to find local experts who are independent enough to act as a judge because family-, business- and other relations in a small society are close. A joint court would certainly help to minimize this effect. In the Final Declaration the representatives of Curacao, Sint Maarten and the Netherlands have agreed that the appeal court for Curacao, Sint Maarten, Bonaire Saba, Sint. Eustatius and Aruba will remain a Joint Court of Appeal. Curacao and Sint Maarten shall each have a Court of First Instance and Bonaire, Saba and St. Eustatius shall share a Court of First Instance. Aruba will maintain its Court of First Instance

Uniformity of law
In order to maintain a Joint Court of Justice, the negotiating parties of the Final Declaration also agreed that there must be uniformity in the procedural law of the countries Curacao and St. Maarten, also as regards criminal law and civil law, including bankruptcy law. The countries should also strive to create uniformity between the other sections of their substantive laws.

Management
The fourth matter that was analyzed by the Court of Justice was its management. The Court of Justice stresses that it should have its own budget and an independent staff policy. As then the Court of Justice would no longer, as is the case now, be financially dependent on the government. It was agreed in the Final Declaration that the management of the Court shall be in the hands of a board of directors (“Bestuur”), which shall consist of the president of the Court, three vice-presidents and a managing director.

Administration and operations
The final matter of discussion was the administration and operations of the Court of Justice. As mentioned above, the Court of Justice wishes to have its own budget. In the opinion of the Court of Justice this budget should be managed by the board of directors (“Bestuur”). Such management is obliged to render account for the utilization of the budget. In that context the Court of Justice proposes that the management of the Court of Justice should report directly to a new to be established, independent authority called the “Beheerraad”, which shall consist of members, who are appointed by Curaçao, Sint Maarten, Aruba and the Netherlands, the latter representing Bonaire, Saba and Sint Eustatius. The Final Declaration agrees to establish a “Beheerraad”.

Curaçao, 13 July 2007
VanEps Kunneman VanDoorne
www.ekvandoorne.com
Ruby Raven / Natasha Joubert