How can criminal law protect democracy?
Politicians, academics and journalists regularly say that our democracy is under threat. Should criminal law have a greater role in protecting this democracy? In his inaugural lecture, Professor Jeroen ten Voorde urges caution.
It is undeniable that criminal law plays an important role in protecting democracy, says Ten Voorde. ‘People who threaten politicians are prosecuted and convicted. Within criminal law we have the terrorist crimes, which were brought about in part to protect democracy. The question is whether there should be an even greater role for criminal law, and if so how. But we do have to be careful not to ask too much of it.’
The Penal Code makes mostly implicit reference to democracy, whereas it is explicitly mentioned in case law. Ten Voorde: ‘If parliament’s work cannot continue properly at a national or local level, the courts sometimes refer to this as “undermining the democratic rule of law”. But you don’t literally see the protection of democracy in the law.’
How far can a politician go?
Sometimes democracy is threatened by things politicians say themselves. For example, the MP who recently had notions of occupying the Dutch House of Representatives. How far can a politician go according to criminal law? Ten Voorde: ‘Politicians can say whatever they want in the Dutch House of Representatives and are immune there. That is a great thing because as a politician you have to be free to express your political beliefs. This sometimes causes friction, for instance in the remarks about the “head rag tax” [politician Geert Wilders’ idea of taxing hajib wearers, ed.] and threats of “tribunals”. In these kinds of cases, we assume that parliament has the ability to self-regulate. What is discussed outside of parliament could fall under criminal law, although opinions are divided on whether such a dichotomy is tenable.’
This parliamentary immunity does come with responsibility, Ten Voorde explains. ‘MPs must be able to say what they want but do also bear responsibility for the quality of the public debate. A politician has to lead by example and show how the debate should be conducted. If you advocate violence or occupy the House, you have to bear the consequences.’
But what if a politician threatens to harm democracy? Ten Voorde: ‘Democracy allows a lot, but should you also allow anti-democracy? That is the democratic paradox. We in the Netherlands are prepared to let people say a lot – we go very far in that. How can you decide whether someone has said something to spark a debate or whether they actually want to stage a coup? Then you have to judge someone’s intentions, which is very difficult. That is why I think it is dangerous to make democracy a very explicit part of criminal law as a collective interest.’
If you add politics to criminal law as a collective interest, you will do more harm than good, says Ten Voorde. ‘Then that collective interest can conflict with individual interests, such as the right to demonstrate and the freedom of expression. There is something contradictory to that because it is exactly these kinds of interests that are important in a democracy. You can try to build in safeguards to protect individual interests. But then you’re pushing the collective interest into the background again. And what are trying to achieve then?’
Criminal law has the means to protect democracy, Ten Voorde concludes. ‘Some aspects of this are still unclear because there are many criminal provisions that we never use. And new online phenomena have yet to be addressed. The protection of democracy could be improved but not by embracing it as a collective interest in criminal law.’
Text: Tom Janssen