In a series of articles titled “In the debate on HOFA,” Member of Parliament Xiomara Maduro shares important information for the public debate regarding the HOFA Kingdom Law. In this article, the central question is: Was there really consensus in the Administrative Agreement (Bestuurlijk Akkoord)?
Consensus cannot be assumed
HOFA is based on the Administrative Agreement between Aruba and the Netherlands. This agreement became the foundation for the law that, according to the Advisory Council (Raad van Advies) of Aruba and the Council of State (Raad van State) of the Netherlands, limits Aruba’s autonomy in public finance. For this reason, we must ask ourselves: How do we know if Aruba agreed “voluntarily” or freely to the Administrative Agreement?
To date, no independent body has investigated whether Aruba signed the Administrative Agreement without financial pressure, without fear of losing financial support, without dependence on refinancing debt, and without the fear that Aruba would be presented as a country that does not pay its debts. Without looking at the situation in which the Administrative Agreement was signed, one cannot simply assume that there was consensus.
A power imbalance
Furthermore, it is worth explaining that Aruba and the Netherlands were not in the same position during the negotiations on HOFA. Aruba depended on financial support from the Netherlands during and after the pandemic, the Netherlands controls access to cheaper financing, and the future of financial supervision was part of the Netherlands’ condition for receiving its repayment. If we take these details into account, we must ask ourselves: When one country is stronger than the other, how do we know if the consensus was truly free?
No independent institution
Because there is no constitutional court or any other independent body within the Dutch Kingdom that can verify whether the countries reached a consensus based on equality, and there is also no procedure to determine if the power imbalance influenced the outcome, doubts remain as to whether there was real consensus when the Administrative Agreement was signed.
There is a democratic deficit
Additionally, there is a democratic deficit within the Kingdom of the Netherlands. Important decisions for Aruba are made within a system where the countries do not hold equal power. Although this flaw is well known, there is still no independent mechanism—a dispute regulation (geschillenregeling)—to resolve conflicts between the countries when there is a disagreement regarding autonomy or the interpretation of the Kingdom Charter (Statuut). This brings the danger that even though Aruba might be right, the Netherlands, through its majority in the Kingdom Council of Ministers (Rijksministerraad) or through Dutch institutions, interprets the Charter in a way that suits the Netherlands and not Aruba.
The question remains unanswered
In the debate on HOFA, one cannot simply assume that because Aruba signed the Administrative Agreement, that automatically constitutes the necessary consensus to limit our financial autonomy. The question that remains unanswered is: Was there really a consensus? So far, no independent body has given an answer to that question.