Dutch democracy still functioning, but under pressure: Council of State

The democratic constitutional state may still function but is under pressure, the Council of State says. “That is why continued attention, strengthening, and further development is needed to keep the rule of law resilient and vital,” the government’s highest advisory body writes in its annual report, published on Thursday. If the fragile relationship of trust between the government and citizens and between citizens themselves does not improve, “dysfunction of the rule of law is lurking,” the Council of State warns.

“The tendency within government administration to regard the values of the democratic constitutional state not so much as a minimum guarantee, but as a maximum target” also threatens to undermine the rule of law, writes the Council of State. It sees bills passing by that push the edges of the law. The legislator must not cross the line, the Council emphasizes.

An example is the VVD’s initiative proposal to make the regime of severe criminals stricter by setting a limit on the visits a detainee can receive, among other things. Abandoning a legal minimum is contrary to fundamental rights, the Council ruled. Criminals also have fundamental rights.

Seeing the values of the democratic constitutional state as the maximum target also increases “the chance that the constitutional state will fall through the bottom, as has happened in a few cases in the recent past,” the Council of State warns.

The Council is referring to cutbacks on social advocacy and legal assistance. People with less financial resources must also have guaranteed access to justice.

The Council also warns about increasing polarization and fragmentation in society. Citizens are turning their backs, and expressions of social dissatisfaction are taking “various worrying forms, such as structural distrust, extreme contradictions between population groups and between political groups, and even conspiracy thinking.”

Maintaining and strengthening “the dikes of the rule of law must, therefore, have priority,” the Council of State says.

The Council of State emphasizes that a well-functioning rule of law is desperately needed to cope with the enormous number of challenges facing the Netherlands. “Social challenges that often could and should have been tackled earlier are increasing. The government has been stretched thin for a long time. It’s overloaded and is making mistakes partly because of this.”

Algorithms

The Council of State also said that governments must always serve the public interest when adopting new technological options and respect the limits of fundamental rights. If they don’t, the government will become an “algocracy” - a government based on algorithms and data.

Municipalities use meters, cameras, and sensors to, for example, measure air pollution, identify violent behavior on the street, and monitor crowds in entertainment areas, the Council writes. However, this sometimes serves the purpose of “guiding certain behavior or predicting risks.”

“Not only can this put citizens in a bind, as has been shown several times in the field of benefits and allowances, but the (moral) autonomy of mankind also fades into the background.”

Ultimately, this is “disastrous for both human dignity and the democratic process,” says the Council of State.

When deciding to use technology, the government must always explain and justify which fundamental rights interests are at stake, how it ensures that people remain sufficiently autonomous, and how it observes the limits of the fundamental rights restrictions. “That contributes to reliable and fair governance.”