RESULTS OF STUDY ON BONAIRE'S 'PUBLIC ENTITY' POLITICAL STATUS

  

The Dependency Studies Project
 Study and Analysis on Dependency Governance
__________________________________________

Assessment of self-governance sufficiency in conformity
with internationally-recognised standards 

Country:  Bonaire

Concluding Observations

In the aftermath of the five-year review of the ‘public entity’ status, a constitutional process was initiated in The Hague to embed/anchor the three polities of Bonaire, Saba and Sint Eustatius (BES Islands) in the Dutch Constitution. With specific reference to Bonaire, this procedure was followed despite persistent questions about the legitimacy of the status which had been repeatedly opposed by the people through democratic expression in multiple referenda. 

The political and socio-economic inequalities which emerged from the imposition of the status amounted to an involuntary annexation through partial integration of a people into a larger state without their consent, against their will, and irrespective of the applicability of international law on self-determination which has clearly been circumvented.

Despite the misgivings formally expressed on multiple fronts in Bonaire and Sint Eustatius, and following independent critique by various scholars and legal authorities in and out of the Kingdom, the Netherlands proceeded, nevertheless, to embark on an internal political process as a ‘final solution’ of anchoring the status in the Dutch Constitution. This process was accelerated in the aftermath of the five-year review even as it was strenuously opposed in Bonaire to no avail.

By 2019, a main Dutch objective was to encourage BES participation in the election for the nine-member Electoral College newly created under Article 132a(3) of the Dutch Constitution. This was designed to project a certain legitimacy of the foregone anchoring procedure on the assumption that the BES would participate overwhelmingly in the process. Accordingly, the voter participation for the Electoral College was a bare majority of 50.7 % (blank ballots which may have been cast in protest and which may have dropped the final count below 50 % were excluded from the final count). [1] Thus, a modicum of participation in the Dutch political system may have been the result, but its significance severely limited in accordance with the level of representation for the BES. Overall, the unilateral annexation of Bonaire would be violative of the international legal principle of "ex injuria jus non oritur" (“unjust acts cannot create law”).

Also to be noted are other portions of the amended Dutch Constitution of 2018. Hence, a new and more elaborately titled Article was created, “Caribbean part of the Netherlands, territorial public bodies other than provinces and municipalities.” (Constitution, 2018). This replaced the designation in the 2002 and 2008 versions of the constitution which referred only to ‘public bodies.’ The following Table of the current SGA compares the designation of the ‘public bodies’ as they are reflected in the 2002, 2008 and 2018 versions of the Dutch constitutions (with emphasis added).

TABLE: Comparison of ‘public bodies’ in Dutch Constitution
2002-2018 (emphasis added)

Dutch Constitution 2002	Dutch Constitution 2008	Dutch Constitution 2018
Article 134  1. Public bodies for the professions and trades and other public bodies may be established and dissolved by or pursuant to Act of Parliament.  2. The duties and organisation of such bodies, the composition and powers of their administrative organs and public access to their meetings shall be regulated by Act of Parliament. Legislative powers may be granted to their administrative organs by or pursuant to Act of Parliament.  3. Supervision of the administrative organs shall be regulated by Act of Parliament. Decisions by the administrative organs may be quashed only if they are in conflict with the law or the public interest. Article 135 Rules pertaining to matters in which two or more public bodies are involved shall be laid down by Act of Parliament. These may provide for the establishment of a new public body, in which case Article 134, paragraphs 2 and 3, shall apply. Article 136 Disputes between public bodies shall be settled by Royal Decree unless they fall within the competence of the judiciary or decisions are referred to other bodies by Act of Parliament.	Article 134  1. Public bodies for the professions and trades and other public bodies may be established and dissolved by or pursuant to Act of Parliament.  2. The duties and organisation of such bodies, the composition and powers of their administrative organs and public access to their meetings shall be regulated by Act of Parliament. Legislative powers may be granted to their administrative organs by or pursuant to Act of Parliament.   3. Supervision of the administrative organs shall be regulated by Act of Parliament. Decisions by the administrative organs may be quashed only if they are in conflict with the law or the public interest. Article 135 Rules pertaining to matters in which two or more public bodies are involved shall be laid down by Act of Parliament. These may provide for the establishment of a new public body, in which case Article 134, paragraphs 2 and 3, shall apply. Article 136 Disputes between public bodies shall be settled by Royal Decree unless they fall within the competence of the judiciary or decisions are referred to other bodies by Act of Parliament.	Article 132a  1. In the Caribbean part of the Netherlands, territorial public bodies other than provinces and municipalities may be established and dissolved by Act of Parliament. 2. Articles 124, 125 and 127 to 132 shall apply mutatis mutandis to these public bodies. 3. In these public bodies, elections shall be held for an electoral college for the Upper House. Article 129 shall apply mutatis mutandis. 4. For these public bodies, rules may be laid down and other specific measures may be taken in view of special circumstances that fundamentally distinguish these public bodies from the European part of the Netherlands.

Of the elements related to the newly designated “territorial public bodies other than provinces and municipalities” is a fundamental consistency throughout the three versions of the Dutch Constitution that these entities “may be established and dissolved by act of Parliament.” This is arguably the singular feature that is consistent with actual provinces and municipalities which are clearly segregated from the ‘public bodies’ in the Dutch Constitution of 2018. 

Further, while the duties/organisation, and composition/ powers of the administrative organs of the provinces and municipalities are clearly spelled out, the rules governing the ‘public bodies’ are far less detailed, reflecting possibilities for “specific measures (that) may be taken in view of special circumstances that fundamentally distinguish these public bodies from the European part of the Netherlands.” (emphasis added).

The spectre of political, economic and social inequality and the accompanying asymmetrical balance of power continues to linger when such distinctions between the Caribbean and Dutch ‘parts of the Kingdom’ are articulated as they are in the new constitutional provisions of the Dutch Constitution of 2018 related to the ‘public entities/bodies.’ At the least, there is no attempt to re-name them as ‘special municipalities’- the term often used in general discourse on the new dependency governance arrangements in the BES islands.

All things considered, the inalienable right to self-determination must lead to a transformational process of decolonisation and democracy – or it can be replaced with a distorted process resulting in the cruel hoax of colonial reform perpetuating the inequality that the process was supposed to replace. This was the case with respect to the BES Islands in the Caribbean. 

It is to be observed that dependency governance is not democratic governance, just as colonialism is not democracy. The ‘public body/entity’ renamed ‘territorial public body’ is one of several global dependency governance models erroneously projected in the 21st Century as forms of democracy, and applied in a fashion that circumvents the inalienable right to genuine self-determination under international law. This is how the scenario has evolved for Bonaire.

The British, French and U.S. all have their versions of asymmetrical dependency governance in the Caribbean and/or the Pacific. Upon examination of the oeuvre of research, the present SGA can only conclude that any projection of Bonaire as a model of democratic governance is illusory at best. Instead, what has been created is yet another form of 21st Century colonialocracy - deficient by all measures of democratic governance. 

However, whilst colonialism remains illegal, its illegality is often a matter of power, not justice. This is the fundamental challenge to the contemporary process of self-determination and its consequent decolonisation for island jurisdictions such as Bonaire.

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[1] In comparison, the vote for the candidates to the Island Council was or  64.14 per cent or some fourteen per cent higher than that for the “Electoral College.