The oath of office as prescribed in the Constitution of Curaçao requires Members of Parliament and Government to: “..pledge to maintain the Constitution of Curaçao”. Yet, the same Constitution does not have any legal means to guarantee the supremacy of the Constitution and constitutional legality of (proposed) legal acts in the country. In other words, the very people who should safeguard our constitution can breach it by accepting or enacting a legal act without an independent institution being able to determine its constitutionality. This does not make any sense. It makes a mockery of the oath of office and the Constitution. Further, it is arbitrary, antidemocratic and it compromises the very stability of the Constitution itself. As we have seen the new drama unfold in the Parliament of Curaçao, it has become painfully clear that we cannot and should not continue on this path. In this article I make the case for a Constitutional Court and judicial review, meaning the review of Constitutional validity of a legal act.
The plight for judicial review is not new. Curaçao‘s Statesman, dr. Moises Frumencio da Costa Gomez made his case in 1946 (Curaçao in het Koninkrijk, p.123) for Curaçao to depart from the Dutch Constitution (which still prohibits judicial review) by making it possible for Curaçao to review laws and legislation, making sure they abide by the Constitution. He did not go as far as calling for a Constitutional Court, but felt that this review could be handled by the ‘normal’ Appellate Court. I have been calling for a Constitutional Court since 2010. During my tenure as Member of Parliament (2012-2016), I worked arduously on this matter and even made my case with the President of the Joint Court of Justice of Aruba, Curacao, Sint Maarten, Bonaire, Sint Eustatius and Saba who was very enthusiastic as long as it became part of the Joint Court of Justice. Finally, a draft legislation was presented to the Parliaments of Aruba, Curaçao and Sint Maarten to make the necessary constitutional changes in order to make a Constitutional Court a reality.
A Constitutional Court, but how and what? This is my take on things. This is by no means an exhaustive list.
Together or solo?
The case for a joint Constitutional Court is overwhelming considering our small scale, lack of financial resources and qualified personnel. On top of that, I agree with (the now former) President of the Joint Court, that the Constitutional Court should be part of the already established and highly respected Joint Court of Justice. There are, according to my knowledge, no legal impediments for going solo, but I do not see any real advantages in doing so.
The way we have dealt in Curaçao with constitutional crises and multi-interpretations of the Constitution so far is based on the arguments of politicians – usually lacking even a rudimentary knowledge of constitutional matters – popular talk shows, and ‘expert opinions’ by various people with their own political agenda. Evidently this does not constitute the basis for constitutional review. On the contrary, it threatens the integrity of the Constitution and causes unnecessary drama. The main raison d’etre of the Constitutional Court should be to decide on only constitutional matters and issues connected with constitutional matters. In principle the Constitutional Court should be limited to rule whether a certain legal act is in conflict or not with the Constitution. Notwithstanding the foregoing, I also want to make the case for the Constitutional Court, under certain very limited circumstances, to clarify, interpret or reinterpret certain official constitutional provisions when there is a real necessity to improve the protection of the constitutional values and control mechanisms enshrined in the Constitution.
Decisions are binding.
A legal act that has been ruled by the Constitutional Court to be unconstitutional may not be applied from the day the ruling becomes publicly known and should be permanently revoked and or removed from the our legal system. An unconstitutional legal act cannot be replaced by a different but equivalent act. I do not believe in retroactive effect of decisions made by the Constitutional Court, even if such possibilities exist in some countries. The final decisions and or interpretations of the Constitutional Court are binding on all courts, institutions, organizations, officials as well as on citizens.
Repeal or amend.
When implementing the rulings of the Constitutional Court by which certain legal acts have been ruled to be in conflict with the Constitution, these acts should be either repealed or adapted, establishing a new regulation that is in accordance with the Constitution. In both cases it is necessary for the Government and the Parliament to be given enough space to make the above–mentioned changes.
Establish constitutional jurisprudence.
The Constitutional Court should be bound by its own precedents and decisions in order to be consistent and ensure the continuity of constitutional jurisprudence. The importance lies in the fact that at all cost arbitrariness and subjectivity depending on the composition of Government, Parliament and even of the Constitutional Court itself could taint the constitutional doctrine.
Finally, the Constitution embodies a system of core values that guarantee the protection of the rights and freedoms of each and every person. We should therefore make sure that the Constitution is upheld as an integral and harmonious system. It is way too easy in our system of parliamentary democracy for Members of Parliament to think that somehow they are almighty and do not – notwithstanding the oath of office – have to bother with the Constitution. In any case, easily they can find or pay someone to interpret the Constitution as they want it to be. I guess that is why I am for a constitutional democracy. But for now, let us make sure that we get a Constitutional Court without further ado. A first version has been drafted and should be picked up by the new Members of Parliament as soon as possible.