From Complaining to Acting: The Handhavingsverzoek

We complain. We complain a lot.

We see something happening in the community that we believe shouldn't be happening, and we react immediately. We write emotional posts on Facebook. We are appalled. We share pictures and videos in our WhatsApp groups. We complain about the government or a certain department. We complain about enforcement. We complain that nobody is doing anything. Sometimes we get angry. Sometimes we make a lot of noise. And almost inevitably somebody says: “Something has to be done.”

And then?

Very often, nothing. We have expressed our outrage, everybody in the WhatsApp group agrees with us, the Facebook post has accumulated comments and angry emojis, and a few days later we move on to the next thing that appalls us.

When I say “we” I mean us as citizens and members of our community: residents, neighbors, businesses, foundations, associations, NGOs, unions, and other organizations representing common interests. We have every right to speak up and complain when we believe something is wrong. But I would go one step further. As members of a community, we also have a civic responsibility to ask what we can actually do about it.

Sometimes we can do something.

Aruba's administrative law gives us an instrument that, in the appropriate circumstances, lets us formally ask government to enforce the law. It is called a handhavingsverzoek: a request for enforcement.

A complaint asks government to listen. A handhavingsverzoek asks government to decide.

Perhaps government doesn't know

A minister, department or public official cannot know everything happening throughout Aruba. Something discussed for weeks in a neighborhood WhatsApp group may not even be on the radar of the authority that has the power to address it.

One well-documented letter may bring the issue to the right authority's attention. Perhaps that is all that is needed: the department investigates and takes action. The objective, after all, is not litigation. It is getting the issue addressed.

It will not always work that way. A handhavingsverzoek is not a magic bullet. But it is an effective legal tool because it does more than simply express dissatisfaction.

Not just for individual citizens

A handhavingsverzoek is a written request asking the competent administrative authority to take enforcement action against an alleged violation. We identify what is happening, what rule we believe is being violated, and ask the responsible authority to act.

This can be relevant to an individual citizen or to organized interests: a group of neighbors, a foundation or NGO, a business organization such as Comerciante Uni Aruba (CUA) or ATIA, an association, or a labor union.

There is an important qualification. Under the Landsverordening administratieve rechtspraak, the LAR, the person or organization making use of the procedure must qualify as a belanghebbende: an interested party whose own interest is directly affected. An organization does not automatically qualify simply because it considers an issue important. The circumstances and the interests it represents matter.

There must also be something legally enforceable: an applicable rule, an alleged violation, and an administrative authority with the legal power to act.

Why the instrument has teeth

Aruban administrative law recognizes what lawyers call the beginselplicht tot handhaving. Put simply, where a legal rule is being violated, and an administrative authority has the power to enforce it, the starting point is that it should do so.

The Gemeenschappelijk Hof van Justitie has held that because enforcement serves the public interest, an authority empowered to act against a violation must, as a rule, use that power. Only under special circumstances may it refrain from doing so.

That does not mean every handhavingsverzoek succeeds. Government must assess the facts and applicable law. But the Hof has also recognized that someone who has properly requested enforcement has, in principle, a claim to enforcement. That is what gives the instrument its teeth.

We can take the first step

A handhavingsverzoek is a legal instrument, so obtaining legal advice is advisable, particularly when the facts or applicable legislation are complicated. But that does not necessarily mean that our first step must be retaining a lawyer.

In a sufficiently straightforward case, we can identify what is happening and the rule we believe is being violated, explain why we are directly affected, identify the authority responsible, and clearly request enforcement and a formal decision.

Put it in writing. Keep a copy. Keep the supporting documents, photographs, and other relevant information. Most importantly, keep proof of when you submitted it and when it was received.

Then open your calendar.

Twelve weeks: mark the date

Do not submit a handhavingsverzoek and forget about it.

Unless another statutory decision period applies, the LAR gives the authority twelve weeks to decide. Calculate that date when you submit your request and put it in your calendar.

If government responds, record when you received the decision. If government does not respond within the applicable twelve weeks, do not assume nothing happened. Under the LAR, that failure to decide is treated as a refusal: a fictieve weigering. Government cannot keep us outside the legal process indefinitely simply by leaving a request unanswered.

But the law will not manage our calendars for us.

Write it. Submit it. Keep proof. Mark twelve weeks. If a decision arrives, record the date. If no decision arrives, recognize that the expiry of the period may itself give you the next procedural step.

And then another clock starts running.

Six weeks: don't miss it

Whether we receive an actual refusal or the applicable period expires without a decision, there is a next step. Under the LAR, you generally must lodge an objection within six weeks. Aruba has a mandatory bezwaar phase, after which the matter can proceed to the Gerecht and ultimately, where applicable, to the Gemeenschappelijk Hof van Justitie.

We do not all need to become administrative-law specialists. We simply need to understand that these procedures run on deadlines.

Send it. Record it. Calendar it. Track it. Act.

When should we call a lawyer?

If substantial interests are involved, the law is complicated, or we are uncertain whether we qualify as a belanghebbende or have identified the correct authority, it may be prudent to seek legal assistance from the beginning.

A word of caution is appropriate here. You may encounter consultants or advisers who are not lawyers offering assistance with procedures like this. Be careful whom you engage. Although the LAR is intended to provide accessible legal protection, administrative law can quickly become technically complex. Standing, competence, applicable legislation and deadlines can all matter. If you are paying someone for legal assistance, make sure the person has the appropriate legal training and expertise. Saving money at the beginning helps little if an incorrect approach or missed deadline ultimately costs you your case.

In appropriate cases, we may be able to take the initial step ourselves. If the government rejects the request, we can take the decision, our original request, and supporting documents to a lawyer. If the twelve-week period expires without a decision, we similarly have an existing file and a concrete procedural situation on which a lawyer can act.

That can make legal assistance more focused and potentially more cost-effective. Instead of asking a lawyer to start from zero, we arrive with the request, evidence, proof of submission, and relevant dates already documented.

From outrage to action

We have every right to complain. We should speak up when we believe something is wrong. But if we have an instrument available to address the problem, I believe we also have a civic responsibility to consider using it.

Sometimes that may be as simple as informing the right department about something it did not know. One letter may be enough to trigger an investigation and produce the desired result. Sometimes government will disagree, refuse to act, or not respond. That is when knowing the legal process becomes important.

A handhavingsverzoek is not a magic bullet, and the law cannot guarantee the answer we want. But it gives us an effective tool to move from saying “somebody should do something” to formally asking the competent authority to do something.

So the next time the WhatsApp group is exploding, Facebook is on fire, and everybody agrees that “something has to be done,” perhaps somebody should ask a different question:

What are we going to do?

Sometimes the answer begins with a handhavingsverzoek and a date marked in our calendar.

Until next week, take care of yourselves and each other. If you would like to read more of my blogs or listen to my podcasts, visit my website at www.lincolngomez.com. See you next week.