To what extent may in a constitutional democracy the rule of law be limited in order to protect it against terrorism?
Ladies and gentlemen,
Constitutional democracies have come into being over a long period of time. As a result, they have their own specific characteristics in each country: republic or monarchy, parliamentary or presidential system, a unicameral or bicameral legislature, a written or unwritten constitution and so on. These differences are of less importance than the similarities between the systems in place in our countries. They share a number of essential characteristics: personal and political freedom, guaranteed by law; cultural diversity, with scope for dissent; a moderate polity, ensured by means of checks and balances, and the rule of law in relationships within the state, within society and between the state and society. The citizen is the focal point of a constitutional democracy governed by the rule of law. He or she is not a subject but a holder of rights and a bearer of obligations; not a consumer but jointly responsible for the smooth running of the state and society; not a client but an active participant in the public domain. Democracy is not only delivered through the official institutions of state.

It develops through other channels too, in particular through civil society, through ‘independent organisations made up of individuals who dedicate themselves to certain aspects of the common good and thereby endeavour to contribute to the quality of societal development’. These include social institutions, NGOs, special interest groups, social partners, ad hoc campaigning groups and, last but by no means least, groups that are critical of the established order. Diversity is a characteristic of democracy and the secret of its resilience. There is not one truth. There are many realities. In a constitutional democracy, even citizens who hold views radically different from those cherished by the majority have the right to express their dissatisfaction with the status quo by non-violent means. In a democracy, the freedom to express opinions emerging from another reality is greater than under other forms of government. An open society makes it difficult to nurture the ideological, ethnic or religious hatred that fuels much terrorism. Fundamental rights and freedoms actually provide security. People live in greater safety in democracies governed by the rule of law than they do in states where restrictions on civil liberties are not the exception but the rule. It was thus no coincidence – and should provoke us to further thought – that the attacks in the United States on 9/11 were not the product of ‘homegrown terrorism’. In the face of the unprecedented external threat presented by 9/11, it was inevitable that drastic measures would be taken, measures that would impose restrictions on certain fundamental rights and freedoms. When the threat of terrorism is real, democracies have no alternative but to protect themselves. Security is an essential characteristic of a democracy, not the law of the jungle. Instruments like the European Convention on Human Rights and the International Covenant on Civil and Political Rights therefore allow for limitations on a number of basic rights, for example in the interests of security. In a state of emergency, other laws may apply, but only in an emergency. But nearly six years have now gone by since 9/11. Many of the measures enacted then are still in force.

New measures are being introduced. Isn’t it time we paused to think about what we are doing and at least attempt to obtain a clear view of the internal momentum of our security policy? I would like you to think about six points. One: security experts themselves sometimes question the effectiveness of the measures taken. What objects must we in fact protect if terrorists can strike anywhere where people gather in large numbers? What is the real risk of a terrorist attack? Doesn’t this make any blanket measures by definition disproportionate? In adopting such measures, aren’t we often trying to overcome the feeling of insecurity rather than create genuine security, combat the real risks? Isn’t this in itself misleading and therefore risky? Two: many measures are a result of decisions taken at international level. National governments and politicians have rarely assessed these measures critically in terms of what is necessary, proportionate and legitimate in their own legal order. The rapidity with which statutory provisions, some quite drastic, are approved by parliaments undermines the legitimacy of the state itself. What is more, some decisions made by international organisations, for example, the Security Council, have direct effect in our national legal orders without national parliaments being involved. Yet some of these decisions can and do give rise to questions regarding the rule of law. Just think of the Security Council list of terrorists and terrorist organisations. Who is controlling the Security Council? Three: the accumulation of measures at national, European and international level demands our attention. In specific situations, individual, drastic measures may well be entirely defensible.

But what is the overall result of all these measures? If we have no clear end view, we are on a slippery slope. Do our governments and parliaments have such an overall view and is it taken into account in reviewing every new measure proposed? Indeed, does anyone at all have an overall view? Four: something else is happening too. Specific measures that were originally designed to combat terrorism have – almost unnoticed – become part and parcel of ‘ordinary’ legislation, particularly in the fields of criminal law and the law of criminal procedure. They are then used to fight ‘ordinary’ crime. Buttressed by established interests, they become impervious to any attempt to scrap or amend them. What has happened to the presumption of innocence? Five: in a number of countries the courts have already acted to correct this situation. Canada’s Supreme Court, for example, has struck down parts of its Immigration and Refugee Protection Act, under which people could be detained for years on the basis of a ‘security certificate’. In the UK, measures to increase the period of detention without charge were defeated in the House of Lords. Germany’s highest criminal court declared a search of an individual’s personal computer without his knowledge to be unlawful. The Bundesverfassungsgericht held that the systematic investigation of data files relating to persons is permitted only if there is a specific threat to public interests of the highest order, such as the continued security of the state or the life of a human being.

A general terrorist threat is no justification for such actions. And Detroit federal judge Anna Diggs Taylor declared the US Government’s eavesdropping programme to be illegal and unconstitutional, even though the Government had declared to the court ‘that merely arguing the case would expose top secret information’, a claim which after examining the data in question the court dismissed as ‘disingenuous and without merit’. The Court of Justice of the European Communities in Luxembourg recently decided that putting a person or organisation on the EU terrorist list had to be better substantiated. In addition, persons placed on the list had to be notified immediately and informed of the reasons. The Dutch Minister of Justice welcomed this ruling. The extra safeguards the judgment entails would in his view have a positive effect on counterterrorism as the greater legal protection they provide would increase public acceptance of counterterrorist measures. Obviously, I am in full agreement with the Minister. But why did the Netherlands not ensure – in the EU Council of Ministers – that greater legal protection was built into the procedure itself from the very beginning? Had that been achieved, the people affected would not have had to resort to the European court. If the courts become the last remaining defender of democracy and the rule of law, this undermines public confidence in political institutions, government and the legislature even further.

A recent study in the Netherlands, has shown that it is not only the public that lacks confidence in politicians: the reverse is also true. This poses immense risks in a democracy. The question arises of how much confidence politicians themselves have in democracy and the rule of law. Which brings me to point six. Restrictions on civil liberties and fundamental rights in the interests of security give the impression that these liberties and rights are opposed to security, when in fact they lie at its heart. The strength of a democracy can be measured by the degree to which divergence from prevailing views is allowed. When people feel insecure, there is a strong tendency, even among politicians, to set limits on diversity, to prioritise homogeneity and to define not only individuals, but entire groups as a security risk. The onslaught on their freedom of expression, cultural diversity, right to privacy, and their ability to have their say and have their voices heard jeopardises their political and social integration. The actual security risk thus grows accordingly. I would like to share with you the views recently expressed by a Dutch judge, which illustrate these problems. ‘In criminal cases I am more and more frequently asked to adjudicate on disputes between population groups. The anxieties of the native Dutch population regarding newcomers have increased, and you see that in the courtroom. At the same time, the function of the courts has been marginalised. Antiterrorist legislation in particular has limited human rights. If there is the slightest suspicion of terrorist activity, the person concerned must first be locked up. Only later are we allowed to decide if that was justified. The worst thing of all is that this is apparently what we, the citizens of the Netherlands, all want.

Suddenly all kinds of complex societal issues have to be put before the criminal courts, with the message: you deal with this. I believe that many problems could be prevented if we just started to talk to each other again.’ (End of quote.) Do we know for sure that the measures taken so far are not contributing to the alienation and isolation of vulnerable sections of the population who, whether it is our intention or not, find themselves collectively in the dock? Do we know for sure that we are not depriving ourselves in this way of valuable sources of information and in fact fostering radicalisation? Do we know for sure that our political institutions, including parliament, provide sufficient resistance to the growth of the internal momentum of security policy? What gives security policy this momentum? I can list several possibilities. 1. The horrifying images of 9/11, which were broadcast again and again around the world, and the emotional responses they evoked. In the aftermath of such a traumatic event, an initial overreaction is almost inevitable. The political consequences of an excessively prudent response can be worse than the political consequences of an overreaction. However, this does not explain why responsible politicians, who should understand the risks, possibilities and side-effects, and the limits imposed by the rule of law, fail to do so in the second instance. After a while they should see more clearly the full magnitude of the risks involved and the ineffectiveness or counterproductive nature of many of the measures taken. 2. Their failure to do so is related to a second factor. It results from changes that have occurred in the past twenty years in the governments of many Western European countries. We can characterise these changes as the retreat of representative assemblies in favour of the executive, the shift of actual power within the executive to the bureaucracy, and the concentration of power within the bureaucracy in the hands of managers. This is what is called new public management.

Managers, their professional views and their approaches to and definition of problems, increasingly determine the way the state acts. Bureaucratic uniformity has taken the place of social and political diversity. Feasibility has become more important than social complexity. Financial costs matter more than social benefits. Administrative certainty trumps political judgment. This may also explain the compulsive search for new legal instruments for preventing every security risk, which in some cases ignore existing powers. There is no longer sufficient awareness that democracy and the rule of law are themselves the best way to make society secure. So the weakness of political institutions and the lack of mutual trust between politicians and ordinary citizens themselves pose risks to democracy and the rule of law. 3. Security policy’s own internal momentum is given even more impetus by an active, inventive security industry. The security industry feeds upon imaginary disasters, however small their actual likelihood may be, and on the virtually unlimited potential of modern technology. And it assumes that new technological resources must be used. It plays on people’s feelings of insecurity and on the desire to eliminate risks – which makes saying no to it a risky business. It is illuminating to compare the dangers posed to democracy today by the security industry with the dangers linked to the power of the military-industrial complex and the technological revolution, which President Dwight D. Eisenhower warned of in 1961.

The ways Eisenhower suggested of combating these dangers – and other, unknown dangers that would arise in the future in America – are also relevant today to keeping the internal momentum of security policy under control. Eisenhower looked to: (1) ‘an alert and knowledgeable citizenry’; and (2) ‘statesmanship to mould, to balance, and to integrate these and other forces, new and old, within the principles of our democratic system – ever aiming towards the supreme goals of our free society’. ‘Good judgment seeks balance and progress’, Eisenhower said; ‘lack of it eventually finds imbalance and frustration.’ 4. Finally, the media also contribute to the internal momentum of security policy. Terrorists want as much media attention as possible to spread panic as widely as possible among the public. Accordingly, terrorists aim for publicity. Their goal is to provoke the state into overreacting, with fatal results for the ability of a constitutional democracy to defend itself. Within the rule of law. In the 1970s and ‘80s, the leading media in Britain supported the British government’s restrained policy in response to terrorist violence. A comparison with the American media after 9/11 – and media in other countries – yields in this respect an unfavourable contrast.

This too has contributed to the internal momentum of security policy. The media have an ambiguous position in our free society. Is their function to provide public oversight and form public opinion – as distinguished from mere popular opinion? Or do they cater to consumers’ presumed demand for infotainment and sensation? It is this tension between public responsibility and economic constraints that makes the media’s position so equivocal. This brings me to the conclusion of my remarks. The intelligence and security services and the bodies that monitor them have the task of ensuring public safety in the interests of preserving constitutional democracy. They are simultaneously faced with an underestimation of real threats and with overreactions to feelings of insecurity. They are constantly subject to conflicting demands: on the one hand, the urge “to do something” – even if it is against the law – and on the other the need to observe the letter of the law. They have to use their independent judgment more than in the past about what is part of their proper work – such as information-gathering – and what kinds of operations are not. In the process they need to ask themselves not only legal but also constitutional and ethical questions. They must always be aware of the different responsibilities that political and administrative entities, at central and local level, have in a democratic state governed by the rule of law.

They need to realise that civil servants and politicians have a weaker grasp of institutional principles than they used to and often little knowledge of constitutional parameters. They will have to remind those who bear political responsibility of what their responsibilities are. In a democracy governed by the rule of law, political responsibilities cannot be permanently shifted onto monitoring bodies and courts. After all, isn’t preserving democracy and the rule of law the fundamental purpose of the security services? This should inspire politicians and especially elected representatives to examine new measures more carefully and to do more to counteract the internal momentum of security policy. Above all, measures that tend to restrict civil liberties and fundamental rights should be stringently tested, on the basis of empirical evidence, for their usefulness, necessity, legitimacy, proportionality and especially discriminatory impact on vulnerable minorities.

I believe it is also time to subject the measures already adopted – one by one, but also as a whole – to parliamentary scrutiny of this kind, in the near future and perhaps periodically to ensure they are not maintained longer than is strictly necessary. Intelligence and security services, and the monitoring bodies that assist governments and parliaments in controlling them, can and must play an important role in this review process. It is their task to defend the constitutionally guaranteed legal order in their countries. They can judge from direct experience how useful the measures already taken have been and what synergistic effects and societal impact they have had. Last but not least, it is important to inform the public fully about the real dangers of terrorism and the extent to which these dangers can be minimised. In this way citizens and civil society organisations can be more involved in preserving the democratic legal order. ‘Prevention is impossible. Mitigation is important. Intelligence and counterattack are critical but none is as effective as addressing the root causes of terrorism.’

The democratic state, with its rule of law, its fundamental rights, its diversity and its tolerance, is not among the root causes of terrorism. On the contrary, democracy and the rule of law are the most effective weapons against it. So democracy and the rule of law must not be restricted to protect them against terrorism. Far from it, they must be deployed to the full in the fight against terrorism, both nationally and internationally.

H.D. Tjeenk Willink