Tell Us the Rule: When Does a Political Appointment Become a Crime?

I have spent some time reading and rereading the judgment against former minister O. Oduber in what has become known as the “Flamingo” case. The more I read it, the more I am left with a fundamental concern. The Court is entitled to scrutinize political appointments, and I do not believe ministers should be exempt from criminal responsibility when public money is involved. My concern is that the Court appears to have judged these appointments without sufficiently understanding, or at least establishing in its judgment, the political and organizational reality in which such appointments operated.

That distinction is important. A court is perfectly entitled to conclude that an established political practice is unlawful. The fact that something has been done for decades does not make it legal. But before we can characterize conduct as criminal fraud, we first need to understand what the arrangement was, what rules applied to it, what was represented to the decision-makers, and exactly what made that representation false.

This matters because the Court itself acknowledges that political appointments were permitted and that ministers had considerable freedom in composing their ministerial bureaus. I know this environment not from textbooks but from having worked in it, decades ago. That does not make my interpretation legally decisive, but it does give me a different perspective when I read a judicial description of how a ministerial bureau supposedly functions.

The Problem With the Term “Spookambtenaar”

Let us start with the terminology.

“Spookambtenaar” is a powerful word. It immediately creates an image of a civil servant who receives a government salary, never shows up to work, and does absolutely nothing. Once that image is established, the conclusion almost writes itself. But the two persons I will discuss, whom I will simply call Person X and Person Y, were not ordinary civil servants appointed by landsbesluit. They were arbeidscontractanten working under private-law employment agreements. That distinction matters.

Political employees and other contract workers do not necessarily function like career civil servants within a government department. They may be hired because a minister trusts them, because they have a political relationship with the minister, or because they perform functions around the political organization that do not fit neatly into the traditional civil-service structure. We can debate whether that system is desirable. Perhaps it has become too flexible. Perhaps it needs substantial reform. But when a criminal court assesses such an arrangement, it must first assess the arrangement that actually existed. A label cannot do the work of legal analysis.

How Political Staff Actually Work

Anyone who has worked closely with government and politics knows that a minister does not operate alone. A chef de bureau or chief of staff, advisers, liaison officers, secretarial personnel, and others perform different functions around the political leadership.

Their work can be broad. They may maintain contacts with neighborhoods and community organizations, accompany the minister, attend meetings, organize activities, deal with citizens, coordinate appointments, assist with speeches or social media, maintain political contacts, or perform work outside the government office. Political loyalty and trust also matter. That should surprise nobody. These are political appointments. People frequently arrive with an administration and leave when the political circumstances change.

Another reality is perhaps even harder to understand from outside the system. The minister who formally employs a person is not necessarily the minister for whom that person will ultimately perform most of his work. A minister may want to bring somebody into government but may not have the budget, space, or administrative possibility within his own ministry. Another minister may have that possibility. The person can therefore be formally contracted through one minister or ministry while, in political and practical terms, working for or around the minister who brought them into government. So the contracting minister has no clue, nor cares to. He or she just did a colleague a solid.

Is that the ideal way to organize a modern public administration? That is a completely different question. I am explaining how the political machinery has operated. And that matters. If you later reconstruct the employment relationship by looking only at the formal line on the paperwork, you may reach a conclusion that does not correspond with the political reality in which the arrangement was created.

What Exactly Is a Liaison Officer?

This brings me to one of the passages in the judgment that I find most difficult. The Court places considerable importance on whether Oduber gave Person X and Person Y concrete assignments, whether they reported to him, and whether he supervised their work. The Court also gave limited weight to evidence from people who saw them at meetings, around government activities, or performing certain activities because that evidence did not establish the required connection to Oduber’s instructions and supervision.

At first reading, that may sound logical. On closer examination, however, an important question arises: where does that job model come from?

Was it written in the employment agreements? Was there an official job description? Did a law or regulation require Oduber personally to issue assignments and personally receive reports? Could a chief of staff coordinate the work? Could another person within the political organization give instructions? Could someone formally attached to one part of government perform work supporting another part of the political operation? These are not insignificant details. They determine what constitutes performance of the employment relationship.

If we first define genuine performance by reference to direct assignments and supervision from the minister, and then give little weight to other evidence of work because direct assignments cannot be established, the reasoning risks becoming circular. Before concluding that the work was not performed, tell us what the work was and who, according to the applicable rules, was supposed to direct it.

When the Employer Does Not Give You Work

Person X illustrates another difficulty. According to the judgment, Person X asked Oduber for work but did not receive any. That deserves attention.

There is an important difference between hiring somebody under an arrangement that everybody knows from the beginning is fictitious and entering into a genuine employment agreement but subsequently failing to provide that employee with sufficient work. If an employee asks the employer for work and the employer does not provide it, that may say something about management, necessity, efficiency and the use of public money. It does not automatically establish that the employment agreement was fraudulent from the beginning.

Perhaps the appointment was unnecessary. Perhaps the minister managed the person badly. Perhaps government received very little value for the salary paid. Those can all be serious criticisms. But poor administration and criminal fraud are not synonyms.

Person Y Is More Complicated

Person Y presents a more difficult situation because the Court found that he performed activities connected with a private business. That should not be minimized. If somebody receives a salary from the Land while performing activities for a private enterprise, that deserves scrutiny. But scrutiny means asking the next questions.

What did his employment agreement require? What work did he perform for the Land? Were outside activities prohibited? Were those activities incompatible with his contractual obligations? Did performing activities elsewhere necessarily mean that he performed no work under his government contract? How many other government contract workers, including those under “OVOs” aka overeenkomst van opdracht, have other jobs or clients?

The Court found that it had not become plausible that Person Y received separate salary or financial compensation for those private activities. That does not make those activities irrelevant. It does demonstrate why the issues need to be separated carefully. Performing other activities, failing to perform sufficient work for the Land, and having a fictitious employment agreement from the beginning are not necessarily the same thing.

How the Council of Ministers Actually Works

I describe these practices not to defend them, and certainly not to suggest that political custom can override the law. I describe them because they form part of the factual environment in which these decisions were made. If a criminal conviction depends on what ministers understood, what they represented to one another and what caused the Council of Ministers to approve an appointment, then the way that institution actually functioned matters. A court may ultimately conclude that the practice was unlawful, but it must first understand the practice before deciding that somebody used it to deceive.

For me, this is where the political reality becomes particularly important. The Court considers it plausible that if the Council of Ministers had known the “real situation,” it would not have approved the appointments. But how do we know that? A Council of Ministers is not simply an HR committee where every minister interrogates every other minister about the political people he wants to appoint. That is not how the political relationship between ministers has traditionally operated in Aruba.

Trust, reciprocity, and political respect matter. A minister brings forward somebody he wants within or around his political organization, and his colleagues will generally respect that choice. Tomorrow another minister brings forward his person and expects the same consideration. Put simply: I respect your political appointment, and you respect mine. Unless any magistrate or prosecutor worked in that environment, they would not know. This is not law in the books; this is law in practice.

The judgment itself recognizes that political appointments were permitted and that ministers had considerable freedom in composing their bureaus. It also records that the Council assessed personnel proposals on the basis of trust. That is enormously important. It means that when the Court concludes that the Council would not have approved these appointments had it known the “real situation” we should ask what evidence supports that counterfactual conclusion.

Which ministers said they would have voted differently? What information would have changed their decision? What did ministers ordinarily expect to know about another minister’s political employees? Did they normally investigate who would give daily instructions, where the employee would sit, what activities the person would perform, or whether the person might in practice assist another political office?

Perhaps there are answers. But those answers cannot come from imagining how an ideal Council of Ministers should operate. They must come from understanding how the Council actually operated. Ask those who have been there. Ask any former or current minister, chief of staff or main advisor. I can speak of experience.

Forty Years of Political Practice Matter

Aruba has now lived with Status Aparte for forty years. During that period, our political institutions have developed not only through laws, regulations, and organizational charts, but also through practices, conventions, and understandings between the people operating those institutions. I am not suggesting that everything politicians have done repeatedly for forty years somehow becomes law. It does not. A bad practice does not become lawful merely through repetition, and political convention cannot override the Criminal Code. But we also cannot pretend those conventions do not exist when we are trying to determine what political actors understood, why they approved something, and whether they were deceived.

There is law in the books, and there is the institutional reality in which that law operates. Ultimately, the courts must apply the law in the books. But they cannot intelligently apply that law without understanding the reality in which the relevant decisions were made. If the practice was unlawful, identify the law that made it unlawful. If the practice facilitated fraud, prove the fraud. If the practice is undesirable, we, the people, have to change it. But first, understand it.

Political Reality Is Not a Criminal Defense

I want to be absolutely clear about this because my argument should not be misunderstood.

“This is how politics works” is not a defense to fraud.

If a minister deliberately places somebody on the government payroll while everyone involved understands that there will be no genuine employment relationship, deceives the relevant decision-makers, and thereby causes public money to be paid, the fact that similar things may have happened before does not make that conduct lawful. Political culture does not override criminal law. But criminal law cannot be applied in a vacuum either. Before a court can determine that somebody deceived a system, it must understand the system that was allegedly deceived. That distinction matters in this case.

If the Culture Must Change, Change the Rules

Perhaps Aruba should change the way political appointments work. There is certainly an argument for much clearer rules.

If every political employee should have a detailed written job description, require one. Because normally it is merely a template with names, functions, and dates replaced. If working hours must be recorded, introduce that requirement. If employees must work from government premises, put it in the rules. If outside activities require permission, regulate them clearly. If ministers must document assignments to political staff, establish that obligation. If there should be limits on political appointments, legislate those limits.

Clear rules protect everyone. They protect the public purse, employees, ministers and ultimately the courts because they make it much easier to distinguish poor administration, political patronage and criminal conduct.

What concerns me is reversing that sequence: deciding today what good public administration should look like, applying that model to a political system that developed differently over decades and then treating the difference as evidence that yesterday’s conduct was criminal. That is a dangerous shortcut.

Tell Us the Rule

I have no difficulty accepting that Aruba’s political culture deserves scrutiny. Many of us have been part of that political world, and know there are practices we should examine critically and practices we should change. But criminal law requires more precision than political commentary.

If Person X and Person Y were employed under private-law employment agreements, tell us what those agreements required. If liaison officers had specific mandatory duties, show us where those duties were established. If their work had to be personally assigned by the minister, identify that requirement. If the Council of Ministers would have rejected their appointments had it known particular facts, show me the basis for that conclusion and also show me that you considered the correct political context. Then we can properly discuss whether the line into criminal fraud was crossed.

What troubles me about this judgment is the possibility that the Court did not merely judge the political reality that existed, but first constructed its own understanding of how that political reality should have operated and then judged the conduct against that standard. The Supreme Court may very well question whether the Appellate Court was allowed to make such a construction, not by re-examining the facts, but by scrutinizing the norm and the correct application of the law.

A court may condemn fraud. It may condemn fraud even when fraud has become part of an accepted culture. But when we use criminal law, particularly against people operating inside a political and administrative system that government itself has allowed to develop over decades, we must be able to answer one simple question:

What, exactly, was the rule?

Have a great weekend, and I will see you again next week.