Science
Photo by Reyer Boxem

Jan Brouwer fears for our civil rights

The Netherlands failed the stress test

Professor of legal methods Jan Brouwer has watched in bafflement as the Dutch government ignored the Constitution in an effort to combat the coronavirus. ‘Civil rights aren’t just for the good times. We need them even more during bad times.’

Door Christien Boomsma

9 June om 15:10 uur.
Laatst gewijzigd op 22 November 2020
om 16:15 uur.

By Christien Boomsma

June 9 at 15:10 PM.
Last modified on November 22, 2020
at 16:15 PM.

Christien Boomsma

Achtergrondcoördinator en wetenschapsredacteur Volledig bio » Background coordinator and science editor Full bio »

Anxious.

That’s the word that professor of legal methods Jan Brouwer keeps using. He’s felt anxious quite a lot over the past few weeks: when he’d watch the press conferences featuring Mark Rutte, justice and security minister Ferdinand Grapperhaus, and health minister Hugo de Jonge; when he’d read about emergency decrees and the comments made by National Security Council chairman Hubert Bruls; when he heard about the fines students got just for sitting too close together on their own balcony; and whenever a journalist wrote about what the RIVM said we couldn’t do or what Mark Rutte forbade us from doing.

Deep down, he knew Dutch people really didn’t know much about their own rights, but he had no idea it was this bad. He is shocked by how easily our civil rights have been pushed aside and how these violations have been denied by politicians, and at the incompetence of the citizens whose rights were violated. ‘It’s practically unbelievable’, says Brouwer.

Enforcing

Take Bruls, for instance. A political scientist, of all people, who brazenly stated that he’d violently enforce the corona rules if necessary. ‘Criminologists will tell you that he can’t’, says Brouwer. ‘You have to convince people. Just look at what happened in Amsterdam last week. You can’t uphold the law in situations like that.’

Bruls’ comments were shocking! How could he say that?

Bruls also said emergency decrees allowed enforcers to enter people’s homes. But that is simply not true. ‘He blatantly denied that this was in breach of the Constitution.’

So Brouwer was anxious. But he was also angry. ‘It was shocking! How could he say that? There’s no way he didn’t know that he was wrong. I almost wanted to start violating the rules at home, but I figured it wouldn’t be smart to invite a lot of people over. But you’re allowed to do what you want in your own home. All the government is allowed to do is advise you on your conduct at home, unless they’re making a new law.’

State of emergency 

Bruls also said that the Netherlands should be lauded for not having to declare a state of emergency. ‘But the emergency decrees the government used were much worse than that. A state of emergency only means restricting people’s freedom of religion, not the freedom to gather or protest, and you can’t ban people from visiting their loved ones in nursing homes.’ These are all essential civil rights that the government violated.

On top of that, the government decided to not only punish violations of the emergency decrees through the criminal justice system, but also the administrative justice system. ‘For centuries, it was enough to use criminal law to punish violations of emergency decrees, but because corporations are being shut down, the government is now involving administrative law. But then that law wasn’t sufficient and to my surprise, the minister of justice and security said during a Lower House meeting that this was an “omission” and that this authority was implicit. A minister saying stuff like that is dangerous.’

If the government wants something, it’ll have to arrange that through the proper channels, by implementing an emergency bill like the one that is now being drafted. ‘That way, you at least follow the rules that we have agreed upon in this democracy.’

He knows the minister didn’t mean it in a bad way. It’s not like he’s Putin, or even Trump. But that doesn’t mean the good cause is an excuse. ‘Professor A.M. Donner, father to the former vice-chair of the Council of State, once said: “Be wary of the government that means well.”’

Goodwill

This goodwill, Brouwer says, is set down in the Constitution. We can’t just put it aside in an emergency. And even in a situation where the right to life and health clashes with, say, the right to privacy, the government should acknowledge how difficult that is. ‘But I’ve never heard them say it.’

Be wary of the government that means well

So Brouwer decided to make trouble. Together with his colleagues Adriaan Wierenga and Berend Roorda, he started the blog The corona crisis and the law (in Dutch), which tries to explain the government’s indiscretions as clearly as possible. He also spoke out in the media. He even called on people not to pay their corona fines, since he said a judge would make short work of them. ‘To be fair, I told people they shouldn’t pay their fine straight away, but to appeal them. Once you’ve paid it, no independent criminal judge will look at it.’ For weeks, he’s been working long days until 11 p.m.

The events of the past few weeks reminded him of the book Entartes Recht by Bernd Rüthers, which he read when he was a student. This book explains how interpretation of the law in the thirties in Nazi Germany became increasingly outlandish. In one case, a judge decided to interpret a period as a comma, which allowed the powers that be to exclude certain sections of the population from the right to ownership.

Mechanism

‘Obviously that was a completely different situation’, says Brouwer. Nevertheless, the same mechanism is at work here, and allowing things just because they’re for the good of the country could have very unpleasant consequences. ‘We have to be strict. If people want to change laws, they have to do so according to the rules we agreed on. They have to go through the legislative process of our government and parliament.’

That didn’t happen in this case. Instead, the minister of public health pawned the job of writing emergency decrees off to the chairs of the safety regions, when he could have done it himself. ‘But then the minister would have violated civil rights.’

Don’t tell Brouwer that the corona crisis has been handled well. ‘That’s nonsense.’ A crisis like this is a litmus test, allowing us to discover the strength of our constitutional state and how well-protected our civil rights are. ‘Obviously, we failed that test’, says Brouwer resolutely.

He’s convinced we should be making our dissenting opinions heard. But what makes him anxious is how little dissent there even is. A few colleagues supported him, but he was mainly criticised. He got several angry phone calls and his inbox was full of hate mail.

Hate mail

He engages everyone in conversation, explaining everyone who emails or calls him why he’s saying what he’s saying. He’s managed to convince every single person he’s talked to. One of them even offered him his second home in France. ‘Call it noble, but it’s for my own peace of mind, really. People are just ignorant of so many things.’

What do schoolchildren actually learn in social studies?

The RIVM or Rutte saying that certain things aren’t allowed is flagrant nonsense. It’s extremely important that we all know who decides what in our society. ‘I sometimes wonder what schoolchildren actually learn in social studies.’

He’ll be teaching a short workshop in constitutional law for journalists, and he went to Almere when a social studies teacher asked him to talk to his class of seventeen-year-olds about the corona measures. He was pleasantly surprised when one of the students made a comparison to the thirties in Germany. ‘The teacher tried to say that it was more complicated than that. But I loved it, because it meant he recognised the danger. If he’d been my student, I would’ve given him a really high grade.’

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