Opinion: Liabilities (of Ministers signing agreements)

POSTED: 07/27/14 11:14 PM

Did Vromi-Minister Maurice Lake overstep his authority when he signed a purchase agreement with the Vorst-family to buy land in Cay Hill for $5.5 million?

There is no doubt that the answer to this question has to be a resounding yes. Lake signed the agreement on his own, and only later the Council of Ministers became aware of it.

The public register the government maintains based on the Kingdom law financial supervision contains a list of ministers, secretaries-general and other civil servants combined with the amount of money for which they are authorized to act on behalf of the government.

The register shows that each minister is authorized to sign off on transactions up to 500,000 guilders (almost $280,000). For transactions above that amount, every minister needs the consent of the Council of Ministers. Secretaries-general and other civil servants below the rank of minister that are included in the register are authorized to do transactions up to 5,000 guilders.

By signing the Vorst purchase deal for $5.5 million without informing – let alone getting the approval of – the Council of Ministers, Minister Lake obviously took a decision that was not his alone to make.

The way things stand now, the sellers have a valid purchase contract and it does not look like the government will be able to get away from it.

The minister is of course politically responsible for his actions, but as long as the Parliament does not give him his marching orders, this remains without consequences.

What then about the personal liability of the minister – or, to put this in a broader perspective – the liability of any minister who saddles his country with huge an unauthorized expenditures?

From what we hear, it is very well possible to hold a minister personally liable for the damages and there is even jurisprudence to back up this position.

In the seventies of last century, a prosecutor in the southern part of the Netherlands kept a suspect in pretrial detention, even though the Judge of Instruction had ordered the suspect’s release.

We don’t know how long the suspect remained behind bars without title, but we do know that he went after the authorities for compensation. That invoice fell on the doorstep of the prosecutor who had, against the instructions from the court, kept a citizen unlawfully behind bars.

The example shows that civil servants – and that is what ministers are, after all – cannot just do whatever they like without ever having to face the consequences.

Closer to home, there is the case of Aruba’s Minister of Finance, who was dragged into court for violating the accountability ordinance in 2001 for signing off on projects designed to upgrade San Nicolas. In 2009, the Common Court of Justice ruled that a minister can be held personally liable if he behaves unlawfully and oversteps his legal authority. There is a condition though: the circumstances of the case must establish that it is possible to make a “sufficiently serious reproach.”

If the country wanted to hold Minister Lake personally liable for the financial consequences of the Vorst-purchase it would have to indicate which actions amount to the qualification of “sufficient serious reproach.”

The fact that a minister could be held personally liable does of course not mean that Minister Lake will be held personally liable. However, it is a comforting thought that the possibility exists, if only because it could make ministers think twice before they commit the country to outlandishly expensive purchases.

 

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