In April of this year, we expressed our concerns on the Leiden Law Blog about how the Dutch legislator, in his quest for a safer society seemed to blindly ignore the often critical opinions of the various advisory boards. Now the Rutte Cabinet has fallen and as a result the legislature has become more or less powerless, our concerns seem to be outdated. Yet, nothing could be further from the truth.
To start off with the good news: some of the plans of the fallen Rutte Cabinet which were heavily criticized by both legal scholars and practitioners seem to have been put on hold. Soon after the fall of the Cabinet, it became clear that the bill proposing an increase in court fees was no longer supported by a parliamentary majority. The future of the mandatory minimum sentencing bill is also unclear since the bill was a direct result of the coalition agreement between the VVD, the CDA and PVV. Whether both proposals will permanently disappear from the legislative agenda, remains to be seen. In any case, both Bills have been posted on the list of controversial topics by the House of Representatives so that their fate will probably be placed in the hands of the newly constituted parliament.
The Minister and the burqa ban
Nevertheless, under the current state of affairs there also seems to be cause for concern. This is strikingly illustrated by the state of affairs regarding one of its showpieces: the burqa ban. In February of this year, the government reiterated with great panache its decision on implementing the burqa ban. At the time Liesbeth Spies, the responsible Minister of the Interior, defended the proposal with tooth and nail against fundamental criticism by, inter alia, the Council of State. The Council not only disputed the necessity of the bill, but also considered it a violation of the right to religious freedom. To our great surprise, less than three months later Minister Spies, whose resignation was offered when the Cabinet fell, in an interview with national newspaper De Volkskrant states that she had never really been in favour of the burqa ban and that she would not shed a single tear if the proposal is binned by the new parliament. Due to the fall of the Cabinet, the proposal no longer functioned as a political means of exchange. Apparently, Minister Spies and the CDA only agreed to the proposal because something was offered in return by the other coalition partners. Subsequently, in a strange twist during a debate with the House of Representatives on 22 May the former Minister expressed her wish to continue her defense of the burqa ban-proposal. To the great disbelief of many, she explained her seemingly whimsical attitude by stating that at the time of the interview, she had spoken as a candidate leader of the CDA and not in her capacity as Minister.
The cynicism of the political discourse
Despite the fact that the sustainability of the latter argument can be disputed, it is a striking example of what we already know. In the current populist political climate, drastic legal measures do not seem to be based on substantive arguments but on daily political realities instead. This might sound cynical and essentially, it is. In an attempt to mince the matter, one could say that this is just the normal course of business in a parliamentary democracy and especially in countries with a coalition government which requires compromising. However, in our opinion this cannot always be used as an argument. Where fundamental rights of citizens are at stake, as is clearly the case with the burqa ban, substantive arguments should predominate over political rationalities and considerations. Constitutional values are simply too important to be used as bargaining chips in political haggling. It would therefore adorn the next government if, contrary to the fallen Rutte Cabinet, it valued the substantive legal advice on legislative proposals as put forward by the various advisory bodies.