Corona law: criticism from experts (and from demonstrators further on)

In full the proposal is called ‘Temporary provisions in connection with measures to combat the epidemic of covid-19 for the longer term’. The name ‘Temporary law measures covid-19’ is already a little handier, but in popular parlance it is the corona law or simply the emergency law.

In two places in The Hague the proposal went over the tongue today. At the Malieveld, hundreds of people demonstrated against it who think the law is too far-reaching. Less than a kilometre away in the House of Representatives, experts expressed their objections. During a hearing, MPs could ask questions about the bill.

One of the objections (also of the demonstrators by the way) is the lack of democratic control. Too much power would go to the cabinet and too little to the parliament. Professor of constitutional law Wim Voermans, one of the loudest critics, stated that the law goes against the constitution. “Restriction of freedom must be with the consent of the parliament, you can’t leave that to the minister.”

Motions

The Emergency Act provides that the Minister of Public Health can impose measures by means of so-called ministerial regulations, such as group formation and keeping a distance. The parliament can then discuss that measure and submit motions on it. With a motion, the House can ask for something to be changed, but the Cabinet can ignore this. So even if the House of Representatives disagrees, it can go ahead.

Voermans therefore argued for the right of ratification. “The parliament should then meet to ratify a measure. If it does not, the measure expires. A minister does look out before he introduces something”, was Voermans’ argument.

His fellow professor Geerten Bogaard also emphasized the importance of members of parliament and at the municipal level of councillors. “It must be visible that this is not just a press conference of the executive”, he referred to Rutte and De Jonge who regularly stand together on a stage. “The representatives of the people must take their role.”

Emergency law specialist Adriaan Wierenga stated later in the hearing that there are actually two tastes for ‘The Hague’. “The first option is simply to stop the current coronavirus measures. But if you want to continue, then this law has to come.”

He called the current construction with emergency ordinances “the most undesirable on many points”. Fundamental rights (e.g. going where you want, with as many people as you want) can only be restricted for a short time with emergency ordinances, says Wierenga. “And only in life-threatening situations.”

Invested

Incidentally, the Cabinet agrees that emergency ordinances are not a good instrument. Soon after the outbreak of the corona crisis, doubts arose about the legal tenability and the limited democratic control. At the end of April, two months after the first contamination in the Netherlands, it was announced that emergency ordinances were being drafted. In the meantime a lot has been argued about it.

Wierenga and his colleague Jan Brouwer, professor of law, both turned out to be particularly critical of a certain article in the bill, 58 S, also known as the Safety net provision. “This gives carte blanche to the minister”, said Brouwer.

According to the article, the Cabinet can continue to intervene ‘if a circumstance arises for which the measures applicable pursuant to this chapter are inadequate’. This goes too far because it has not been laid down which fundamental rights may be restricted and to what extent, the two experts said.

Mandatory lunar suit

The law is formulated too broadly at all, Brouwer stated. For example, the Cabinet can make rules about “exercising professions” or “hygiene measures”, but the law is not more specific than that. “If you think that too much can be covered, such as a compulsory lunar suit, then you should make it more precise,” he tipped the members of parliament.

Another point of criticism from the legal scholars was the duration of the law. In a first version it was one year, after criticism from the Council of State, among others, it became six months. “The Chamber can also say: we want to establish every month or every two months that there is still sufficient support,” Brouwer said. “That would increase democratic control. And it’s good for support in society.”

Emergency law = more democracy

SGP party leader Kees van der Staaij wondered whether it would be all right with the support base if the House were to be given a larger role. “I saw someone with a sign ’emergency law = dictatorship’, would we get signs with ’emergency law = more democracy’?”

Such a change of opinion did not seem to occur at the Malieveld today. Because demonstrators wanted to leave the field after a while and the atmosphere became grim, the mayor ended the demonstration. Eight people were arrested.

The House of Representatives will debate the law sometime in the coming weeks, expected after Prinsjesdag. Members of Parliament can then also submit proposals to amend the text.