Mandatory face masks complicated because it touches Constitutional right, professors say

The government is right in saying that introducing a face mask obligation on a local level is complicated, because it touches on constitutional rights, according to professor of law and society Jan Brouwer and professor of constitutional and administrative law Wim Voermans.

A face mask obligation can only be implemented through a law introduced by the legislator - the government, parliament and Senate together. An emergency ordinance on a local level is implemented by the mayor who chairs the local security region, Bouwer explained to RTL Nieuws early this month. "It is only possible in an emergency ordinance if there is an imminent danger to life and immediate action is needed to contain the danger."

An argument can be made on that front, as the coronavirus is a deadly virus. But the problem there lies with public health institute RIVM insisting that non-medical masks are not necessary in the fight against the virus, saying that they are not proven to reduce the risk of contamination. "And they are not going to change that position," Brouwer said. "Then they would totally lack credibility."

A major obstacle is that making face masks mandatory would "be in breach of Article 10 of the Constitution, which states that everyone shall have the right to respect their privacy," Woemans said on Leiden University's website back in July. Which means that should such a ban be implemented at a local level, people could fight it in court, most likely with success.

Measures like social distancing also restricts people's freedoms, but "the distance requirement only limits freedom of movement and is not protected in our Constitution," Bouwer said to RTL. At the start of this crisis, the government also had some more wiggle room to introduce such measures, under the "unwritten state emergency rights". But six months later, there really should be legislation in place to regulate these measures, Bouwer said.

Amsterdam and Rotterdam experimented with mandatory face masks earlier in the crisis, resulting in a number of Amsterdam residents taking the city to court. The court ruled against the plaintiffs, saying that the face masks obligation was a "relatively minor breach" of privacy given that it was a last resort as less intrusive measures against the virus did not curb its spread, that it had a limited duration, and was only applicable to a handful of specific areas.

On Tuesday evening, Prime Minister Mark Rutte announced that the Netherlands is back in a "limited lockdown". He announced a large number of restrictions and measures against the spread of the coronavirus, including face masks. "A non-medical mouth mask will be mandatory for everyone over the age of thirteen who is in an [indoor] public space, as soon as it is legally feasible," he stated. For now, face masks are "urgently advised" while the government scrambles to make them legally mandatory.