Mackor worries about the rule of law
Be transparent
In 2019, the ministry of Health, Welfare and Sports created a think tank on disinformation. Their goal? To intervene on social media in collaboration with companies such as Facebook, Google, and Instagram themselves. They would actively remove posts by people spreading disinformation. They did all of this in secret: not even the Lower House was aware.
The think tank was initially set up because of the decreasing vaccination rate of children for especially the measles, but it continued its work during the Covid pandemic. An investigation by newspaper NRC revealed that officials considered blocking the account belonging to a GP tweeting about the virus.
Considering the balance between disinformation and spreading correct information is fine in and of itself’, says professor of professional ethics and legal philosopher Anne Ruth Mackor, who’s an expert on the rule of law. ‘But citizens should be able to know what’s going on. When a government is secretly talking to organisations such as Facebook to limit people’s freedom of speech, they’re no longer being transparent. There’s no way to check whether the government is breaking the law.’
Rule of law
By not being transparent, the government is even undermining the democratic rule of law, she argues. Both the rule of law and science are based on a set of more or less agreed-upon values: the Enlightenment ideals. Besides, the government should ideally base its policies on scientific knowledge.
Without transparency, there’s no way to check whether the government is breaking the law
The main idea in both science and the rule of law is that opponents are equal and discussions are public, says Mackor. ‘It prevents discussions from turning into a power struggle and ensures they lead to substantiated opinions and decisions.’
Transparency ensures that decisions can be reviewed, she says. ‘The government withholding information, such as which people were part of the think tank and what criteria were used to remove posts, is not a part of that.’
Never-ending discussion
Science also exists by the grace of public discussions. Recently, minister Dijkgraaf has been repeatedly defending science by saying it presents ‘the facts’ with ‘certainties and uncertainties’ and that ‘nature’ has the final say.
‘That’s simplifying matters’, says Mackor. ‘It’s not “the facts” or “nature”; it’s people who are talking. And there is no final say, because the discussion never ends.’ In other words: new hypotheses are constantly being formulated and tested. ‘For that, we need transparency, and that’s sometimes lacking.’
An example: during the first few months of the Covid pandemic, the rule of law was under pressure in various ways. The government pretty much handed the reins entirely to science, via the Outbreak Management Team (OMT). ‘Initially, it was understandable that they did that’, she says. ‘We were in a crisis.’
However, this also led to a lack of transparency, as well as one-sided representation. ‘In terms of restrictions, the scientific side was overrepresented in the OMT. Social and legal science was left by the wayside.’
Besides, there were debates even within the OMT, for instance when they had to decide whether or not to reopen schools. However, hardly any of the internal considerations were made public.
Threatened
It’s understandable that governments don’t want to spill all their secrets, says Mackor. ‘First of all, people should feel free to bring up ideas and come back to them without everything being made public. Secondly, various people on the OMT have been threatened because of their opinions. That probably would have been much worse if all their considerations had come out.’
The fear of being threatened undermines public debate
Nevertheless, both the democratic rule of law and the scientific community would benefit with a public summary of the discourse. ‘A version that includes substantiated differences of opinion that everyone can stand behind. That would enable other scientists to talk about studies being published that included arguments for discussion or how some arguments had long been disproved. It would ensure transparency in the debate.’
Two of Mackor’s fellow legal experts, Wim Voermans and Jan Brouwer, decided to engage in public debate. They criticised the legal grounds for emergency regulations and decided to respond in the media. In the end, they were two of the few people who ended up on the news. ‘But not every legal expert agreed with them’, says Mackor. ‘However, they might have been worried about going public for fear of repercussions. That fear of being threatened undermines the debate.’
Independence
Not only is the rule of law threatened by the lack of transparency and the rise of disinformation, its independence is also at stake. In the Netherlands, judges and politicians, who embody the roles of legislative and executive powers, respectively, should be kept separate. This is the concept of trias politica.
‘But some judges’ verdicts appear to be politically motivated’, says Mackor. ‘There was a lot of debate about the Urgenda verdict, for instance.’
This climate foundation sued the government. They wanted the government to stick to its promise to reduce CO2 emissions by 25 percent in 2020. The government had already agreed to this by signing the UN’s climate accords but wasn’t doing enough to actually reach its goal. Urgenda ultimately won the case on appeal.
‘There’s very little legislation on this’, says Mackor. ‘The question here is whether the judge interpreted the existing legislation too freely to reach his verdict? Was the judge playing the role of executive power? In controversial cases like these, judges are always being accused of their verdict being political.’
Society
Mackor would like to prevent such accusations. It’s important to substantiate verdicts like these in such a way that society can understand them, she says.
It’s a topic she as a legal philosopher talks to judges about. ‘On the one hand, judges are impartial, so they have to maintain a certain distance between themselves and the rest of society. On the other hand, they can’t ignore what’s happening in that society. If you impose a sentence that you know some people will think isn’t enough, you have to ask yourself how you can properly motivate that.’
How can judges ensure that they properly motivate their verdicts?
That can be frustrating. Judges will always try to substantiate their verdicts. But it only takes one person to not read that substantiation and instead take to social media to say that the verdict sucked. Nearly everyone will just read that one-liner, preventing your nuanced motivation from reaching your intended audience.’
But people not getting the correct information isn’t always their own fault, says Mackor. ‘Anyone who has ever been on social media knows how clever those platforms are. They want you to just keep scrolling. People using troll armies and bots on social media are using that mechanism. They create a lot of clutter on social media platforms, which makes reliable information impossible to find.’
It will be hard to mitigate this endless stream of disinformation, she thinks. ‘Finland has an educational programme that teaches children how to manage the barrage of Russian disinformation.’ The children learn how fake news is made and how they can recognise it. ‘It’s a very interesting approach, as long as it actually works. Perhaps it’s something we should consider in the Netherlands.’