Leiden Law Blog

The Constitution as window dressing

The Constitution as window dressing

The Dutch government recently proposed codifying the rule of law and the right to a fair trial in the Constitution. Even though they are already leading principles, it is a good idea to formalize international legal standards. However, what does this commitment mean in practice?

In a previous post, Maartje van der Woude discussed several ‘concerning measures’ of the government’s Action Plan against Jihadism. The plan to monitor the air travel movement of all citizens was withdrawn after protests, but parliament might just agree with the proposal to revoke the Dutch citizenship of alleged – suspected, not sentenced – terrorists. Indeed, who needs a judge when couples want to divorce, but for taking away citizenship we need checks and balances. Dozens of passports have already been confiscated to prevent individuals from joining ISIS.

Prosecutor-as-judge

In the shadow of the bid for the most repressive anti-jihad measure, lower-profile suspects are being confronted with an unfair trail, too. Two lawyers recently expressed their concern about sentencing festival visitors for possessing drugs without having a lawyer or judge present. Since 2009, the public prosecutor (OM) is authorized to impose sentences (a fine or community task) for a number of so-called common offences – this is called a ‘strafbeschikking’. Many suspects have no idea of the consequences of accepting the prosecutor’s verdict (such as having a record).

The prosecutor-as-judge is questionable in itself, but to deny responsibility for informing the public is simply problematic. It would not surprise me if the average member of the public has no idea that prosecution and sentencing no longer require seeing a judge in a courtroom. They might think they are being offered a settlement. Yes, everybody should know the law. However, the prosecutor-as-judge is far removed from what one might expect in a criminal procedure. This alone should create an obligation for the government to inform suspects and ensure their access to legal assistance. To deny this suggests abuse of power.

Bombastic rule maker

The list of legal monstrosities continues and includes forcing suspects of child pornography to criminalize themselves and hacking the computers of suspects (a plan that won the Big Brother Award 2013). A survey among Dutch lawyers shows that many think the rule of law is threatened by the current policies of Minister Opstelten and State Secretary Teeven. As one lawyer put it: ‘[Minister] Opstelten presents himself as a bombastic rule maker, not hindered by knowledge of […] the principles of the rule of law.’

Many of us, politicians as well as members of the public, are disgusted by offenders, in particular child abusers and terrorists, and shudder at the thought of a totalitarian state – a specter that has come to life through the Islamic State. But we should first protect the rule of law and the right to fair trial from violations due to our own urges to ensure total security. The plan to include the rule of law and the right to a fair trial in the Constitution is a good occasion to start a broader and more fundamental discussion on what the rule of law means in practice. Otherwise the renewed Constitution may amount to little more than window dressing.

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