Tuesday, October 16, 2012

Dutch Constitution: Bogus?

Hey all,

I recently had discussed on an internal mailing list of the Dutch Pirate Party about the validity of a new cybersecurity bill proposed by Ivo Opstelten. I looked towards the Dutch Constitution and asked myself: Does this bill fit with the guidelines of the Dutch Constitution? The conclusion was simple: It does not. It even violates multiple articles.

This immediately prompted the next question in me: If this is against the Dutch Constitution, how do they still get it into their minds to propose such a preposterous law? I started doing some research. Of course, the first destination is going to the document of the Dutch constitution which the government supplies (you can expect this to be the actual form of it). I had already looked into it earlier, and did find some interesting stuff in there.

First of all, almost every section and article of the constitution is littered with small lines like these:

  1. behoudens in de gevallen, bij de wet bepaald.
  2. behoudens bij de wet gestelde beperkingen en uitzonderingen.
  3. behoudens ieders verantwoordelijkheid volgens de wet.

What this says, is that every article in the constitution can be limited or overridden by normal laws which are formed under normal parliamtentary procedures (the procedures for the Wetboeken, Law Books, which only require a 51% majority instead of the 67% needed for changes in the constitution). This is because it refers to the Wetboeken to say in which cases these constitution articles are valid. Of course, this is logical, as the wetboeken also describe procedures and how high the punishment should be. So this alone was no reason to assume that the constitution could be violated (it is an open door though, but still there had to be protections).

Well, I thought I might have a look what the responsibility for the Dutch lawmakers are (1st and 2nd chamber). Often, it is described that the 2nd chamber (2e kamer) actually sets up the laws, and the 1st chamber (1e kamer) has to check if these laws are in line with the constitution and things like that. So I decided to look into that. We are looking now at this section for that. Actually, there's nothing there which says the responsibilities are at all. This entire section and the related section actually say that both chambers act as the lawmaking force. The regering (which resides in the 2nd chamber, a small subsection of that) are the ones who run the actual government. So together with a separated judicial system, this arranges the trias politica (which this constitution is based on).

Well, I wondered: Why does everyone say that the 1st chamber checks if laws passed in the 2nd chamber are in check with the constitution or other guidelines? I tried to find an article about it myself in the constitution, but couldn't find any. If anyone can tell me where I can find this, then I will take back my claims about there being no protection of the constitution in the lawmaking area of power.

Well, then there's the judicial part of the trias politica. In most modern democracies, there's some sort of legal organisation which checks if a law or action of the government or any other entity in the country is in line with the constitution. Well, the following line might shock most people:

De rechter treedt niet in de beoordeling van de grondwettigheid van wetten en verdragen. (source)

Well, this actually puts up an interesting contradiction. Earlier in the constitution it is said that no treaty (verdrag) may break any law. But what if one does? You can't hold the lawmaking and governing areas of power liable, and the judicial system can't do anything about it. In fact, it can not only do something against constitution-breaking treaties, but if the government decides to break the constitution, there's no checks built in against that. So I have come down to a very simple conclusion.

If the government would ever decide to break the constitution (which is already been done maybe, and most likely underway now with this proposal by Ivo Opstelten from the VVD), there's nothing the citizens can do against it. At least, save for 2 things:
First, they can try to depose the government. This would of course involve violence, and I don't want that to happen. So this option is a no-go.
Secondly, you can try to change the opinion of the lawmakers in such a direction, that they will fix this up. They can, because one of the very few pieces of the constitution being valid, is that it needs a 67% majority to change the constitution.

So yes, the constitution is worth a lot if a government is acting ethically correct. But if any fictional person would ever gain enough power to get 51% of the 2nd chamber to support him or his party (which is the usual case in any democracy), and would have the desire to seize power for himself (or for a select club of people), he can't be stopped by any law according to our constitution. So what I would like to propose is to make the lawmakers aware of this serious problem, or at least try to make the public aware of this serious problem in one of the most critical parts of the Dutch government.

PS: If anyone can point me to official pieces of the law, disproving my claim that the government is not held in check by the constitution, please inform me by a comment on this blog post.

PS2: I'm still shocked by the conclusion which I've drawn in this blog post. So please, if anyone can prove me wrong, do it! I don't want this thing I've concluded here to be true. I really hope I overlooked something.