After the advice from the Attorney General at the Supreme Court, in which it indicates that the decision of our Common Court of Justice regarding marriage is correct, some politicians have raised the question of whether the decisions in Curaçao are made by the judges or the politicians. Although the case is still under consideration and the final decision of the Supreme Court is not yet known, the people of Curaçao deserve to receive accurate information about the roles of the judiciary and Parliament in our community.
Constitutional law in Curaçao recognizes the separation of powers (trias politica). Parliament, together with the Government, creates laws. We all know that the Government executes the laws. The Court has the final say when it comes to establishing a violation of the law. In our constitutional framework, the Court has what they call "constitutional review." This means that if our laws conflict with, for example, freedom of expression, freedom of belief, prohibition of discrimination, or any other fundamental human right, as per Article 101 of the Constitution, our Court is obligated to act.
In Curaçao, the Court can review a law against fundamental human rights. If the law clashes with fundamental human rights or certain international treaties, it can invalidate that law. The Court can also instruct the government to change the law.
Contrary to what some mistakenly believe, in Curaçao, the judiciary itself can annul a law, or it can instruct the government to amend the law. This ensures that, for example, even if our Parliament as a whole decides to reintroduce slavery, even if all 21 parliamentarians vote in favor, the judiciary has the authority to invalidate that law.
As for the right to interpret the law or the 'rechtvormende taak' of the judiciary, this is nothing new and has been applied since the Lindenbaum/Cohen ruling in 1919.
Therefore, the lack of knowledge on these points by some politicians is alarming because the people demand that those who claim to represent them are at least informed.
Furthermore, Article 44 of the Statute of the Kingdom is highly relevant. According to the Statute, changes to our constitutional framework related to classical human rights must be submitted to the government of the Kingdom. These changes do not come into effect until the government of the Kingdom has expressed its consent. With this article, the visionary progressive, national hero, and father of the Statute, Dr. Mr. Moises Frumencio da Costa Gomez, created protection for the people of Curaçao to prevent fundamental human rights from being changed without authorization from the Kingdom government.
Women, our elders, minorities, and the entire people of Curaçao have the guarantee that their human rights, such as freedom of expression, freedom of religion, or the prohibition of discrimination, cannot change without the permission of the Kingdom government. No passing local fundamentalist political trend can alter these.
Therefore, as a parliamentarian advocating for the strengthening of these human rights, I will continue to believe that Curaçao should introduce a constitutional court, similar to Sint Maarten. This way, we will continue to protect the people against all forms of discrimination and misinformation. It is up to us to continue with courage, work for development, and create opportunities for everyone in our country.
Gwendell Mercelina, Jr.
Member of Parliament
