Opinion: integrity assessment Country St. Maarten: Strengths and weaknesses (2)

POSTED: 10/11/13 2:15 PM
This is part 2 of the strengths and weaknesses chapter from Transparency International’s integrity assessment of Curacao. Part 2 appeared in our Thursday edition and part 3 will appear tomorrow.

 In the Curaçao National Integrity System, party discipline governs both acts of Members of Parliament as well as those of the Executive, blurring the constitutionally-prescribed division of powers. Parliament in practice does not operate independently, but instead is widely considered to operate as a ‘rubber stamp’. Whereas the independence of Members of Parliament is firmly enshrined in the constitution to ensure Parliament represents all the people of Curaçao, the logic of ‘a party political mandate’ is firmly embedded in the Curaçao political landscape in practice.

Similarly, political interventions leave little room for maneuver for the Executive in its decision- making processes. Because of this weakness, the inevitable and necessary nuances temporarily put aside, Curaçao’s parliamentary democracy has not yet sufficiently evolved into a system which adequately represents the electorate. Instead, sometimes, it resembles a system in which today’s winners – backed up by their extended families, business partners, party financers and voters – try to exploit legislative and executive power temporarily granted to further specific interests. As a result, the rights of the large minority are insufficiently safeguarded.

Party discipline, however, cannot, be sustained at all times, and the Curaçao National Integrity System is also characterized by a political landscape with changing coalitions, in which today’s small majority governing the country may be tomorrow’s large minority in Parliament. In essence, the latter is considered to be a good thing, because it is one of the few existing mechanisms to ensure that the Executive is held to account.

Nevertheless, the accountability of the Executive remains weak in practice. This, in turn, undermines the capacity of the public sector to operate effectively. For example, the Executive exerts strong influence on appointments in the public sector as well as on its output, including some examples of direct interference in administrative matters. Furthermore, the specific circumstances of the new constitutional relations, requiring two executive layers to be merged into one, have not resulted in an enhancement of the public sector’s performance to date.

Because these institutions do not function well, in practice much of the work of the well-functioning oversight institutions, most prominently the judiciary, the supreme audit and supervisory institutions as well as the Ombudsman, is undermined. For example, many of the recommendations of the supreme audit and supervisory institutions and the Ombudsman lack follow-up and court decisions are not sufficiently enforced. Furthermore, the lack of adequate complaints mechanisms within the administration creates a high demand on the Ombudsman’s services and limits the ability of the Ombudsman to investigate more proactively. The slow pace of reform in Curaçao’s financial management framework, meanwhile, results in ineffective financial audits. Additionally, while the judiciary has the authority to penalize offenders in corruption-related cases, it is dependent on the Public Prosecutor’s Office to bring cases to court. The Public Prosecutor’s Office, in turn, is to a large extent dependent on prosecutions instigated by law enforcement agencies. The lack of sufficient financial and human resources within the police forces creates a high demand on the services of Public Prosecutor’s Office and limits its ability to prosecute.

Civil society and business, on the other hand, are less dependent on the functioning of the public sector when performing their watchdog role. However, the impact of their activities is difficult to measure, and the stronghold of the party political mandate affecting many of the aforementioned institutions reduces their ability to influence policies through advocacy.

Key strengths and weaknesses

The following section summarizes the most important strengths and weaknesses of the Curaçao National Integrity System pillars.

LEGISLATURE (Parliament)

Key strengths

 There are generally strong legal provisions to ensure that Parliament has the capacity to effectively perform its functions, both in terms of resources and independence.

 Parliament has numerous and sufficient powers to oversee the Executive.

Key weaknesses

 Party discipline is considered to considerably limit Parliament’s independence.

 There are almost no formal provisions to provide for publication of parliamentary documents.

 Important provisions such as those related to gifts, assets, additional functions and lobbying contacts are not in place.

 Despite a strong legal framework, Parliament does not exercise sufficient executive oversight in practice and does not make effective use of the information and advice provided to support its oversight.

EXECUTIVE (Ministers and Council of Ministers)

Key strengths

 There are strong legal provisions to ensure both that the Executive remains independent and that it can be held to account for its actions.

Key weaknesses

 Because of a notable lack of transparency in the Executive, there is little clarity on which powers are delegated to whom, and how the Executive in practice uses its power granted.

 Because of weak oversight, the Executive does not make effective use of the recommendations provided by other actors to support its executive tasks.

 Current integrity provisions, including the screening process, still contain some loopholes and their effectiveness in practice cannot be assessed because of a lack of effective oversight.

 A structural commitment to a well-developed public sector is lacking, and the Executive does not sufficiently prioritize adoption and effective implementation of legislation.

JUDICIARY (Joint Court of Justice)

Key strengths

 There are strong legal provisions in place to ensure the independence of the judiciary.

 The judiciary is responsible for its own personnel and budget management and has adequate financial resources and personnel to achieve its goals in practice.

 The judiciary has considerable legal powers to oversee the activities of the Executive.

Key weaknesses

 Attracting and keeping adequate personnel remains a concern.

 The office of the registrar, which is ‘the gateway to the judiciary’, does not always operate effectively in practice.

 Even when the court produces decisions against the government, enforcement of those decisions can be problematic.

 There are no regular and comprehensive court statistics on corruption cases, and the annual reports of the Court of Justice do not provide an insight into the number of corruption convictions.

 There is no independent body to investigate complaints against the judiciary.

 The code of conduct and management rules have not yet been published, despite a legal requirement to do so.

PUBLIC SECTOR (Administration, public companies and public foundations)

Key strengths

 There are robust integrity rules for the civil service, including registration requirements for gifts and additional functions. There are also several whistleblower provisions.

 There is a corporate governance ordinance and a corporate governance code in place for public companies and public foundations.

Key weaknesses

 The independence of the administration is compromised by undue interference of the Executive.

 Transparency is generally weak. The public is insufficiently informed about the management of  the administration, and whether its practice complies with the principles of good governance.

 Screening procedures for positions involving confidentiality in the public sector are not yet fully in place.

 Mechanisms to monitor and enforce compliance with integrity provisions are not yet fully in place.

 The letter and spirit of the corporate governance ordinance and the corporate governance code are not yet fully observed in practice.

 Transparency of public companies and public foundations is weak, and delays in reporting limit the ability to hold those entities effectively accountable.

 The public sector does not adequately inform and educate citizens about their role in fighting corruption.

LAW ENFORCEMENT AGENCIES (Public Prosecutor’s Office, KPC, Landsrecherche)

Key strengths

 The legal framework contains several provisions designed to ensure the independence of law enforcement bodies, including robust provisions to appoint, suspend and dismiss law enforcement officers.

 The Public Prosecutor’s Office is responsible for its own personnel and budget.

Key weaknesses

 There are serious concerns about the information processes of both the police forces and the Public Prosecutor’s Office.

 Despite an enabling legal framework, police forces are unable to operate with a high degree of independence in practice because they are under financial control of the government.

 A few legal instruments are in place to ensure individual citizens’ access to information on management and working procedures, investigations and prosecutions but overall, transparency provisions are limited.

 Investigation and prosecution of corruption cases is generally complicated and time-consuming.

 Insufficient financial and human resources (expertise) and institutional mistrust have a negative effect on the detection and investigation of corruption cases in Curaçao.

 There are no regular and comprehensive statistics specifically on corruption cases.

ELECTORAL MANAGEMENT BODY

Key strengths

 The operational independence of the Supreme Electoral Council in practice is strong, and its integrity has not been questioned in spite of insufficient legal safeguards in this regard.

 The electoral council has been active and successful in ensuring the integrity of the electoral process in general.

Key weaknesses

 The legislative framework on the financing of political parties does not contain any provisions to ensure sufficient capacity and effective governance of the electoral council.

 The regulations on the financing of political parties are not effectively executed in practice.

OMBUDSMAN

Key strengths

 The legislative framework includes many aspects to ensure the independence of the Ombudsman, and in practice the Ombudsman operates in a professional and non-partisan manner.

 The Ombudsman recently adopted a code of ethics including many of the relevant provisions to ensure the integrity of the Ombudsman.

 The Ombudsman is generally active in dealing with complaints from the public on a case by case basis and in promoting good practice.

Key weaknesses

 There are only limited specific provisions which require the Ombudsman to release information on individual reports proactively between the Ombudsman’s annual reports. Individual reports cannot yet be accessed via the Ombudsman’s website.

 The lack of a uniform complaints mechanism within the administration puts pressure on the Ombudsman’s capacity.

 Government officials are not always cooperative and do not always sufficiently comply with, or explain deviations from, the Ombudsman’s recommendations.

SUPREME AUDIT AND SUPERVISION INSTITUTIONS PUBLIC SECTOR

Key strengths

 There are strong legal provisions to ensure that the institutions have the capacity to effectively perform their functions, both in terms of resources and independence. In practice the capacity of these institutions to perform their goals is generally adequate.

 The mechanisms in place to ensure the accountability and the integrity of the institutions are generally adequate.

 The institutions consistently provide the Executive with numerous suggestions to improve its financial management.

 Cft’s recommendation to the Kingdom Council of Ministers to instruct the Curaçao government has spurred the government to improve its financial management.

Key weaknesses

 Existing provisions to ensure ARC’s accountability are ineffective, largely because of delays in reporting.

 The effectiveness of the internal and external audit of Curaçao’s annual accounts is limited, in part because their scope is not far-reaching enough.

 With some exceptions, the recommendations provided by the institutions do not receive adequate follow-up.

 The institutions experience practical difficulties in effectively auditing or supervising public entities, including public companies and public foundations.

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Opinion: integrity assessment Country St. Maarten: Strengths and weaknesses (2) by

Comments (1)

 

  1. This is a very intellectual academic study(NIS) made by TI of Curacao. It could have been made of every Island in the Caribbean This is an analytical piece of ADVICE given to the three sectors and pillars of any Island. THESE RECOMMENDATIONS ARE JUST THAT:RECOMMENDATIONS. If the sectors do not want to enforce them they are worth NOTHING.There is no law or rulle which can force the sectors to enforce these recommendations. In the real world: they will not be enforced and nothing in St.Maarten will change. Our recommendation is to do the investigation Instruction as ordered by the Dutch Kingdom as the results are enforcable and has a better chance of improving the integrity in the St. Maarten community and government