In two years of corona, democracy and emergency law turned out not to work

Which crack struck the rule of law for two years of the corona crisis? The Minister of Justice who obliged the Netherlands to maintain a distance of 1.5 meters from each other, but didn’t care about his own marriage? The fact that Grapperhaus did not resign was a missed opportunity.

In retrospect, I mainly refer to those first months in which this national crisis surprisingly enough ended up in the hands of the mayors and chairmen of the security regions. In a pandemic crisis, the Minister of Health turned out to be able to act only with the help of local emergency ordinances. Mayor Bruls van Nijmegen was suddenly in charge, as the sheriff of Minister Hugo de Jonge. There was then no form of local, let alone national, democratic control over those local emergency ordinances. Although schools were closed, gatherings were banned, even indoors, and visits to health care facilities were restricted. But no city council was allowed to say anything about it and the House was also sidelined.

There was noticed right away that this was legal quicksand. A minister who dictated local emergency ordinances through the Public Health Act and the Security Regions Act, invoking art. 176 Municipal Act. That article therefore does not allow mayors to restrict fundamental rights at all – which it did. That was then repaired with a ‘corona emergency law’ that then had to be regularly and radically adjusted. Crisis law got off to a very slow start. Unless I’m mistaken, the ban on hosting guests at home has never really been enforced, except for a few noisy parties, which the police couldn’t avoid. The cabinet deserved a slap on the judge’s untidy fingers for this.

In the meantime, parliament was satisfied with an endless series of press conferences, at which the prime minister and minister came to ordain measures. Based on r numbers, IC occupancy and ‘OMT advice’ that no one was allowed to read beforehand. All behind the broad back of a certain Jaap van Dissel, CEO of RIVM, who came to give ‘technical briefings’. The measures were then discussed in a plenary session by parliament. Didn’t D66 ever know to start the curfew half an hour later, by way of democratic triumph? Then you saw the prime minister making a concession, almost sighing. You didn’t need a QR code for amateur outdoor sports, but you did for the dressing room, because then you’re inside. Cuckoo!

In the meantime, the Netherlands discovered the Constitution containing so-called ‘fundamental rights’ with every lockdown, corona app or QR code. These were broadly and erroneously understood as absolute rights that ‘they’ should not touch. All those lawyers who for years mourned the lack of constitutional awareness in the Netherlands can now be satisfied. Covid has put the Constitution in the spotlight. A motley crew of ‘freedom fighters’ has been inspired. In addition to the Malieveld, they also managed to find their way to court. Opposition group Virus Truth finally strained eleven summary proceedings against the State, usually with fundamental rights as the main platform. Except one they were all lost: ‘tested’ by the court on the subsidiarity and proportionality of the restriction, which was found to be reasonable and democratically legitimized.

The Council of State advised mid-December, taking everything into account, in ‘spontaneous advice’ that emergency law ‘must be modernized in the short term’. Under constitutional law, such unsolicited advice is a malfunction alarm – a flashing red light for which you call the garage.

The classic emergency law of war turned out to be a size too big and the ‘ordinary crisis law’ with all those mayors a size too small. There must be ‘safety net facilities’ for the board to be able to act immediately. Parliament must be able to play a clear role in determining crisis and emergency measures.

There is an urgent need for a coherent crisis organization at national level. It must be clear in advance which fundamental rights can be restricted in which crisis situations – and this must be laid down in law beforehand. Oh how clear, and how obvious it is.