A recent ruling in Curaçao stating the General Audit Chamber is not authorised to conduct an investigation at United Telecommunication Services (UTS) has local relevance too. For starters, St. Maarten still has a minority share in the government-owned company from the days of the dismantled Netherlands
Antilles.
But more important, the judge’s decision directly impacts on the very structure of such companies, often former departments of the public administration that used to fall directly under Government. They were placed “at arm’s length” to keep them far from politics so they can function independently and based on corporate governance principles.
According to the judge, this means the Audit Chamber has no jurisdiction, as UTS cannot be considered a state entity. However, there are alternatives, including certain existing shareholder authorities and the right of inquiry, while a complaint also can be filed with the Prosecutor’s Office it there are indications of irregularities.
Parliament had unanimously adopted a motion asking the Chamber to look into the lawfulness, transparency and effectiveness of the policies by management, the supervisory board and the general shareholder’s meeting since 10-10-10. UTS feared competitively sensitive data might be released and successfully went to court.
Government is considering an appeal. Another alternative is to adapt the statutes of the Audit Chamber and create the possibility of intervention in the event of mismanagement, but without room for political meddling.
The case shows that there continues to be a fine line between allowing these companies to operate in an autonomous and business-like manner – as customary in the private sector – and making sure they are not misused to further hidden agendas. One good way to begin is by appointing board members who really can be expected to act in the best interest of the company, rather than with different objectives in mind.
