Former Commissioner of Saba Will Johnson and his legal counsel attorney-at-law Michiel Bijkerk from Bonaire have lost a procedure with the United Nations Human Rights Council for payment of the old age pension AOV to be equal to the AOW pension in the European Netherlands.
Johnson, a pensioner himself, submitted this case pertaining to the difference in the amount of old age pension received by pensioners in Bonaire, St. Eustatius and Saba and the European part of the Netherlands on July 20, 2015.
Johnson was born in Saba and has lived there for his entire life. He has been receiving an old age pension since October 10, 2001, in accordance with the General Pension Insurance Ordinance, which was the relevant law applicable at the time in Saba. All citizens of the former Netherlands Antilles were entitled to receive an old age pension as of the age of 60.
In its ruling which was presented on August 8, 2022, the 15-member Human Rights Council Committee ruled that the facts of this case did not reveal a violation of Article 26 of the International Covenant on Civil and Political Rights.
This article states that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” the article reads.
In its assessment, the Human Rights Committee established that insofar as there exists a difference in treatment of old age pensioners under the General Old Age Pension Act and the General Old Age Pension Act BES, “that difference is not to be explained in terms of personal characteristics, such as ethnicity, but on the place of residency where the individual has been insured. This permits legislation to duly consider regional differences and characteristics of an objective and reasonable nature.”
In addition, it is hard to draw any genuine comparison between the position of pensioners living in the Caribbean and the European part of the Netherlands, also in view of the range of economic and social factors which apply in these areas, the Council said.
“Thus, the value of the pension may be affected by any one or a combination of differences in, for example, inflation and exchange rates, comparative costs of living, statutory retirement age, basis for and other constituent parts of the old age pension allowance, economic growth, social security arrangements and taxation systems.”
Of the 15 committee members, only professor of International Law and Human Rights at the Norwegian Centre for Human Rights Gentian Zyberi had a dissenting opinion. He found that the Dutch State had violated Article 26 of the Covenant on grounds of Johnson’s residency in Saba.
Zyberi mentioned a report by the National Ombudsman who in September 2019 addressed the difficult situation of pensioners, expressing concern about the pace and the manner in which the measures taken by the authorities were being implemented.
The Ombudsman recommended that the reports and insights of the Netherlands Audit Chamber, the Netherlands Institute for Human Rights, the Advisory Department of the Council of State and the Ombudsman should all be used to address the situation. “The State party should heed this advice without any further delay,” Zyberi stated in his dissenting individual opinion.
However, the other 14 committee members considered that the current constitutional status of the three islands of the Caribbean Netherlands was not sufficient to place claimant in a relevantly similar position to all other pensioners living in the European Netherlands. “Any apparent difference in treatment had, in any event, been objectively and reasonably justified,” they stated.
This procedure followed a court case filed for judicial review in the Court of First Instance of Bonaire, Statia and Saba in January 2012. More than two years later, on March 12, 2014, the court rejected the application, filed by Johnson, then Commissioner in Statia Reginald Zaandam and journalist Aubrey Sealy from Bonaire.
On April 10, 2014, an appeal was lodged with the Joint Court of Justice, which on December 15, 2014, upheld the decision of the Court of First Instance, holding that the impugned difference of treatment between pensioners in Bonaire, Saba and Statia and those in the European Netherlands was objectively and reasonably justified.
The Daily Herald.