Does poor GRETA THUNBERG have to defend the earth, nature and mankind all on her own?
Does Aruba Bird Life Conservation Foundation have to continue to sue the government to prevent development and construction of hotels / condominium projects in areas designated as nature preserve in the Territorial Ordinance Plan??
My guest speaker today is Johan P. Sjiem Fat, Attorney at Law, Sjiem Fat & Co, who has a brilliant mind and is one of the most intellectually astute individuals I know.
He was invited to speak on behalf of the Aruba Bar Association when two new judges were installed last week.
I asked him what he said, and after reading his piece, I decided to publish because it is relevant to us.
His topic was the TRIAS POLITICA, which is a constitutional system, please stick with me, it gets interesting in a minute. That system dictates the separation of governmental powers, meaning it tells us who does what, who makes the rules, the legislative system, right? Who then sees to the execution of the rules, the executive branch, right? And who is in charge of the courts and the judicial setup in case violations of those rules occurs.
Basically a threesome, a system of checks and balances, the lawyers calls it Trias Politica, the triangle of government.
The issue of the happy threesome came up, in light of a recent Supreme Court decision in the URGENDA case.
The case concerned the topic of climate change. That’s how it is relevant to us.
Urgenda, an environmental action group filed a class action against the Dutch State demanding that they adhere to the climate change norm based on international consensus among climate change scientists and international organizations to reduce emission of greenhouse gasses by 25% or more by 2020 in order to fight climate change.
Urgenda won the case and the Supreme Court ruled that the state had to comply with the order as demanded by Urgenda.
The decision started a heated discussion in Holland about whether the Court had overstepped the bounds of its authority as delineated in the above 18th century TRIAS POLITICA separation of government powers, by making climate change policy and ordering the State to enforce and comply with this policy.
One of the main arguments in the critic’s corner was that Urgenda had no democratic legitimacy to force the State to follow a certain climate change policy, whereas the parliament and the government / executive branch, who had such democratic legitimacy, were sidelined by the court’s decision.
The criticism was quite vehement and aggressive accusing Urgenda and the court of attacking the rule of law and democratic order based on climate change madness.
Urgenda and its defenders argued that the court merely applied the law, namely the human rights protection of Dutch citizens under the EU Human rights convention and that if the democratically elected representatives fail to protect the citizens, we should all be glad that a group like Urgenda steps up to the plate to demand such protection by the court in a class action lawsuit, in order to prevent poor GRETA THUNBERG from having to defend the earth, nature and mankind all on her own.
The President of our Joint Court expressed concern over these attacks on the judiciary and explained the role of each branch of government under the TRIAS POLITICA. She furthermore expressed hope that the fierce discussion that erupted in Holland can be prevented, as each branch of government acknowledges its place and explains its decisions and policy to the general public. The President furthermore explained that attacks on the integrity of the judiciary are dangerous because they undermine the rule of law.
In his speech Johan P. Sjiem Fat said he would give those present a TRIAS POLITICA homework assignment. And he summarized the court’s decision in the Urgenda case and the arguments made by opponents and proponents.
He explained that the TRIAS POLITICA issues and discussions clearly have relevance in Aruba too, because every court case that involves government policy or decisions can raise the question about whether or not the judiciary is overstepping its authority by encroaching on the territory of the executive or legislative branch, or whether the executive is trying to play judge, jury and executioner.
With respect to class actions in Aruba, Johan P. Sjiem Fat pointed out the cases initiated and won by ARUBA BIRDLIFE CONSERVATION against the government to prevent development and construction of hotels / condominium projects in areas designated as nature preserve in the Territorial Ordinance Plan.
The TRIAS POLITICA questions that these cases raise are:
Is ABC influencing the court to make environmental policy without democratic legitimacy and preventing much needed economic development for Aruba, which the Minister of Infrastructure, who did have democratic legitimacy, was willing to facilitate?
Was the Minister of Infrastructure overstepping his authority and was he neglecting the protection of the environment necessary to ensure future generations that there would still be some nature left on our Happy Island by trying to facilitate commercial development in nature preserve areas? In which case ABC’s actions and the court’s support for such actions can only be applauded.
He also said that in his opinion the discussion about the place and boundaries of the judiciary and the executive and legislative branches is legitimate and necessary in any democratic society, and that the Bar Association does not object to these discussions taking place with the use of strong language.
Of course the Bar Association agrees with the President of our Joint Court that attacks on the judiciary’s integrity and independence are reprehensible because they undermine the rule of law and our democracy.
This is the homework assignment for you: Answer 2 questions:
- Based on the separation of government powers do you find the Urgenda decision horrendous and an infringement of the TRIAS POLITICA?
- Would you find the Urgenda decision fantastic and a correct interpretation of the TRIAS POLITICA, which he would have applauded?
In general Johan P. Sjiem Fat concludes, the subject of Climate Change-litigation is fascinating. Another Environmental Action Group recently sued Shell in the Netherlands for not doing enough to prevent climate change.