When ‘the rule of law’ is being gloated somewhere at a conference table, someone always remembers this column. And then I get an email. This time it was as if I wanted to contribute ideas about a ‘rule of law’ course for journalists and others. Well please. My profession could very well use more knowledge about the democratic constitutional state. We live in threatening times with strongly anti-democratic tendencies in which concepts such as fundamental rights, separation of powers and the rule of law are thoughtlessly interchanged, acquire their own meaning, are misused or misunderstood. That is why here is a course ‘Understanding the restricted rule of law’, in five points.
1
First, sharpen the awareness of the violation of the rule of law. Teach journalists how to recognize the introduction of a totalitarian state. Which freedoms will be lost and in what order. On the eve of Trump’s election, American professor Timothy Snyder explained on Facebook what that totalitarian handbook looks like. And how citizens can defend themselves against it. Central lesson: defend the institutions. They uphold the rule of law – so respect the judiciary and parliament. Provide ‘s recently reissued essay Menno ter Braak, National Socialism as rancor, as homework.
2
Teach journalists exactly what the independence of the Public Prosecution Service is, what exactly it means to bear political responsibility for it, when the Public Prosecution Service informs the minister about (which) current affairs, when the minister gives instructions and why the parliament then watches. After all, the Public Prosecution Service embodies the state’s monopoly on violence and has a magisterial character – autonomous, oriented to the democratic legal order. This is especially relevant when openly called for ‘tribunals’ that apparently have to deal with political opponents. The Public Prosecution Service in a constitutional state is never a jukebox where the power (or the opposition) can throw a dime. Whoever suggests that damages it.
3
Teach journalists what an ‘injunction against the state’ precisely is and what the Supreme Administrative Court does. How great is the power of the citizen to have government policy independently controlled. And that the judge is careful to rule by verdict. Also because not every citizen or interest group objecting represents the public interest or is democratically legitimized. ‘Tribunals’ to test government policy have therefore been provided for for a long time. In fact, those ‘corona crimes’ that FVD is so eager to try have already been repeatedly tested, tried, weighed and generally found to be in order by the judge. Whoever keeps asking for ‘tribunals’ then has something else in mind. They want to judge and punish themselves. That is vigilantism by the majority. The political state as prosecutor and judge. A democratic constitutional state protects citizens against that state.
4
Teach journalists what fundamental rights are and are not. The Netherlands, which is semi-demonstrative, tells itself that ‘no one’ should touch ‘our fundamental rights’. And journalists repeat that because apparently that’s how it is ‘alive’. In reality, there is only one fundamental right that is absolute – no one should be tortured. In the case of acute counter-terrorism, the ban subsequently turned out not to be strong enough. Think of Guantanamo, of the CIA dark sites after 9/11, to waterboarding, to force-feeding of hunger strikers. Fundamental rights may, however, be restricted. The ‘fundamental rights’ of these rights lies in the strict requirements imposed on their limitation. Such restrictions must be proportionate and described in a democratically enacted law.
5
Explain why politicians always say neutrally that they are going to ‘study’ a verdict. This is not politeness, but primary awareness of the rule of law. Leaving room for the judge is basic – the case is closed, the last word has been spoken. To accept that is to show that you are a democrat. Geert Wilders cannot or does not want to and seizes the opportunity to cause damage with every loss. Everybody must be careful with judgments. A verdict is never just an opinion. It’s what ‘you have to deal with’. Understanding that is the hardest thing for many.
A version of this article also appeared in NRC Handelsblad on 15 January 2022
A version of this article also appeared in NRC on the morning of January 15, 2022
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