At the beginning of October 2019 the report “Research Public Corporations Bonaire” was issued. Under the authority of the Ministry of the Interior and Kingdom Relations (BZK) research was conducted regarding the operation and the structure of corporations and foundations of the Public Entity Bonaire (OLB) focusing on good corporate governance.
A number of findings are presented in the report and a number of proposals and recommendations are made. The report contains various good proposals that can quickly result in an improvement of the corporate governance on Bonaire. A part of the recommendations can also well be implemented on the other Caribbean islands. An example is the recommendation to develop, what I call, a stockholders’ philosophy. According to the report (and following on from the OECD) there must be more clarity about the guiding principles of the stockholder about what is expected of public corporations and foundations. In my opinion, the absence of this kind of philosophy is one of the important causes of many of the problems that we experience on all islands with government related entities.
Apart from good there are, in my opinion, also some less successful establishments in the report. For instance, the Minister of BZK is, on at least 6 occasions, given a firm dressing-down in respect of the same point every time: according to the report the Minister could, on the basis of section 9 subsection 8 of the FinBES Act, give direct instructions to directors and supervisory directors of government entities in violation of fundamental principles of corporate governance. This reproach is, however, not fair. It is based on an incorrect reading of the Act.
Section 9 subsection 8 of the FinBES Act comprises an authority for the Minister that is slightly comparable to the obligation of the government existing on Curacao and St. Maarten to, when exercising its stockholders’ rights, in certain instances request a prior opinion from the Corporate Governance Adviser (on St. Maarten the Corporate Governance Council). On Curacao and St. Maarten the opinion is not binding, on Bonaire it regards a potential designation of the Minister. Contrary to the statements in the report, it does, however, in terms of public limited corporations not regard an authority to issue a designation order in respect of the bodies of those entities (e.g. the directors and supervisory directors), but an authority to issue a designation order to the stockholder about the manner that the latter exercises its stockholders’ rights. Hence, there is no form of intervention in the government related entity itself. The designation remains in the public atmosphere and does not affect the relationships under private law within the public limited corporation. That is why a violation of fundamental principles of corporate governance by the FinBES Act is also out of the question.
Otherwise, I do understand the confusion. The authority of the Minister to issue a designation order to the representative of the Public Entity formulated in section 9 subsection 8 of the FinBES Act also exists to the extent that the said representative acts in a board. This apparently refers to the board of a foundation. The members of a foundation board must, however, exclusively depart from the interest of the foundation. Even if they were appointed by the OLB, according to generally accepted principles of corporate governance this does not imply that they should accept instructions from the OLB. It can therefore not be appreciated why they should do so from the Minister.
The report also establishes that the Corporate Governance Code on Bonaire would be outdated. The new Dutch Code from 2016 should serve as an example on Bonaire. I neither agree with this. The present Code is actually too extensive and complicated for the relatively small official entities on Bonaire. A revision would be very good, however rather to make it more suitable for Bonaire and not to imitate the Netherlands.
The members of a foundation board must, however, exclusively depart from the interest of the foundation