Speech by the Dutch Minister of Justice, Ferdinand Grapperhaus, at Károli Gáspár University, Budapest, 21 February 2019

Toespraak | 22-02-2019

Introduction

I am honoured to be a guest of your distinguished university. I would like to thank the Hungarian Minister of Justice, Professor Trócsányi, for inviting me to come and discuss our relations in the field of justice. And I thank you all for joining us here today. This lecture is a unique opportunity to move the dialogue on these issues forward. Our interest in this debate is genuine and deep-rooted. And there are several reasons for this.

Firstly, our mentality was shaped in part by our geographical location. A large part of the Netherlands lies below sea level. In the early centuries the land was in danger of being flooded. This required strong dykes to protect the land. If two farmers were unable to agree on how to maintain the dykes, the chances were that they would both drown or starve. So it was necessary to work together, and build dykes and polder the county. The fight against the water certainly helped convince people of the need for at least some harmony and cooperation. And so poldering became synonymous with finding common ground where everyone was equal.

There are other historical and sociological reasons for our attachment to a rules-based system in which everyone is equal before the law. Allow me to take you back to the 26th of July 1581, when our national assembly of the States General adopted the so-called Plakkaat van Verlatinghe - our Declaration of Independence, or ‘Act of Abjuration’. In this document, the Dutch terminated their allegiance to Philip the Second of Spain. The grounds given were that Philip had failed in his obligations to his subjects, by oppressing them and violating their ancient rights (an early form of social contract between the state and its citizens).

This Declaration was guided by two groundbreaking ideas. First: the people are not there to serve the king; the king exists to serve the people. And second: with regard to religion, the king cannot reign over an individual’s conscience. This established the concept of religious freedom. Those two ideas are at the core of our adherence to the rule of law.

In the 17th century, these ideas were elaborated by great philosophers like Hugo Grotius and Baruch Spinoza. We are proud of that tradition, and we are keen to grasp any opportunity to promote that line of thinking. What’s more, the Netherlands has always been a small country with a relatively large economic footprint. The country can be characterised as an open society of merchants and so-called burghers, or citizens. We are well aware that the best way to safeguard our interests is a robust international legal order. We combine a spirit of freedom with a strong belief in the virtues of the rule of law, in the interest of the people and the business community.

This explains why our constitution obliges our government to promote the development of the international legal order. It is in our own interest, and the interest of those other countries that function better in a rules-based system of international relations.

Shared views

So that is what I propose to do here today. ´Shared views and justice in Europe´, is the title of my speech. The word ´and´ is an important one. I would like to discuss the views we share and to what extent these shared views are reflected in our justice systems. As for those shared views, I found so many that it was difficult to make a selection. I’ve been reading up on your tumultuous and at times tragic history, and I came across many leaders and views that felt familiar.

One of the people who caught my attention was Count István Bethlen. Inevitably a child of his time, he nonetheless struck me as an astute diplomat and politician. In his decade-long tenure as prime minister he showed himself to be a moderate conservative and a master of compromise. He struck a sensible balance in his policies, ending some forms of extremism, violence and discrimination while at the same time managing to stimulate the economy. It brought your country a period of wealth and stability.

You know better than anyone that after the Bethlen era Hungary faced a period of increasingly authoritarian rule, culminating in German rule, defeat after the Second World War and Soviet occupation.

For a long time, in Hungary, the rule of law was trampled on. Then, in 1990, Hungary had to make a new start. In the past few decades, Hungary has built a democracy, joined the European Union and developed a new legal order. Each period poses its own challenges.

I would like to discuss them with the help of Professor Trócsányi’s book The Dilemmas of Drafting the Hungarian Fundamental Law. Professor Trócsányi points out that there should be room for differing views on institutions and laws within the member states of the EU. And I agree. Especially when he writes:

‘the rule of law, democracy and the protection of human rights, including the protection of minorities, is the common binding anchor.’   

There, he will find not only me, but most people, both inside and outside Hungary, on his side.

Allow me to also share another quote, which is somewhat longer but worth sharing, so please bear with me.

‘This constitution wishes to be simultaneously tradition-preserving and modern, to present an image of the country that emphasises nationhood and sovereignty, as well as the participating role in European cooperation. Our values are European: the rule of law, democracy, defence of human rights, including the protection of minority rights. At the same time, the Fundamental Law considers it important to present the following values: the unity of the Hungarian nation, the role of Christianity in preserving the nation, condemnation of the crimes of the dictatorships, the preservation of family unit and marriage and the principle of a work-based society, to name just a few examples.’ 

I understand the values that Professor Trócsányi references. To some extent, I share some of them personally.

But laid down in the Fundamental Law they also beg the question of whether all citizens in a democracy – right-wing, left-wing, conservative and liberal – will be able to identify with all of the notions mentioned. And if that is not the case, what is the impact of these notions on an inclusive society and a pluralist democratic culture? 

No clash

Respecting and incorporating differing views was, from the outset, the driving force behind the European Union project. It was based on the fundamental notion that different political influences can make for a stronger society, country and Union. That applies not only to the cooperation between countries, but also to the situation within countries.

The current Dutch coalition government is a case in point. It is a coalition of two liberal parties and two parties with a Christian background.  Some within the coalition support further European integration, and others do not. For all of them, migration and security are major concerns. They all favour civil liberties and justice. But they are inclined to make different policy choices.

Is it simple? It is not.

But do these differences make the coalition weaker? They do not.

The attitudes and backgrounds of each party guarantee a broad view that is usually supported by a large part of the electorate. For members of parliament, both those in opposition as well as those in the coalition parties, the constitution and the rule of law are common ground.

Justice in Hungary

How are the views we share reflected in the domain of justice? This is a rather more nuanced subject, and I have three observations to make in this respect.

Expert organisations

The first one. In the introduction to his book, Professor Trócsányi writes about international organisations and expert forums. And he wonders aloud:

‘What does sovereignty mean in cases where external bodies can pronounce judgments and in some cases even demand changes to constitutions, thereby overriding an authority elected by a nation’s own people?’

This quote suggests that international organisations that a country has joined should not engage with domestic politics. It seems to imply that only elected officials are allowed to ‘do politics’, as it. also seems to cast a doubt on the role of NGOs, grassroots organisations even media and more in general it puts the notion of participatory democracy up for debate.

My determined contribution to this debate would be that the criticism of NGOs, media and others is in fact an indispensable part of democracy and the rule of law. Under the rule of law, those in power should not only tolerate criticism; they should invite it.

And what’s more, those in power have an obligation to respond to that criticism. It is part of the accountability of a democratic government. NGOs, grassroots organizations, media _ they are all stakeholders in civil society. They are an essential part of a vibrant democracy and they should be valued as such. We may lose sleep over them, and they may annoy us from time to time. But you have what Nietzsche said "What doesn't kill you makes you stronger."

A second observation

In any democracy governed by the rule of law, there are shortcomings. And in every democracy under the rule of law, ideals are imperfectly realised. In the Netherlands, for example, we have faced criticism because our Public Prosecution Service can’t process every criminal complaint it receives. There have also been critical voices in Dutch society challenging the Prosecution Service’s practice of disposing of some criminal cases by settlements out of court instead of prosecution. At the same time, our Public Prosecution Service has an outstanding international reputation.

Also in my country, there has been criticism about the lack of legal aid resources for people on low incomes, even though the Netherlands spends up to seven times more on legal aid per capita than countries like France and Germany.

For years, we have ranked fifth on the international Rule of Law Index. And yet, in our system too, as I have demonstrated, there is critiscm, which we have to adress – nobody’s perfect. Comments and criticism may come from all corners of society. It should also be instituted. So in the Netherlands the government has a duty to respond to opinions of institutions such as the Netherlands Court of Audit, the Council of State and the Dutch Safety Board. Anyway, whether or not it is instituted criticism is a strict requirement in a well - functioning democracy: it keeps us on the right path where the rule of law is concerned.

For those who refuse to accept criticism, corruption beckons. We should keep in mind the famous words of Lord Acton: "Power tends to corrupt and absolute power corrupts absolutely." 

Rule of law

Then a third observation. The European Union has achieved prosperity, peace and security in Europe by seeking common ground. European cooperation is based on the fundamental principles of the rule of law, which each member state adheres to:

• The independence of institutions in their dealings with each other
• Checks and balances between the different branches of power
• Consistency in lawmaking and systems
• Rejection of corruption (and ongoing anti-corruption policy)
• Permanent independent oversight (in the Netherlands, the Court of Audit and Council of State are examples of such institutions)

These common principles form the basic requirements for the rule of law in the EU. Member states should fulfil those requirements. Without a proper separation of powers in a member state; without clear checks and balances; without resolute anti-corruption efforts, there is no way to achieve the kind of communality that’s needed.

This requires, for example, an independent judiciary that recruits and selects new members on the basis of objective criteria. The executive branch’s role in this is limited to safeguarding the process by providing ministerial countersignatures on appointment decrees, acknowledging the independent nature of the appointments.

Justice in the EU

If the rule of law is the backbone of modern democracy, then trust is its central nervous system. This is all the more true in the European Union. Cooperation in criminal law and civil law are central to the area of justice, as is the rule of law. Without mutual trust there can be no mutual recognition and therefore no judicial cooperation – no freedom of cooperation in judicial matters, no single market, no internal security.

We need an open dialogue between Europe’s member states and institutions, in the elected European Parliament, in the Council of the European Union, and with the Commission as the guardian of the treaties.

Mutual trust is also key to the formal dialogue between the Court of Justice and the national courts through the preliminary ruling procedure. National courts are the courts of general jurisdiction of the European Union. They are also the principal enforcers of the rights that EU citizens and others derive from EU law. It is therefore vital that all national courts apply EU law in a uniform fashion, and this includes the framework of the preliminary rulings.

We are a union of freedom, security and justice. Take the example where one member state executes a European Arrest Warrant on behalf of another member state. The judge has to be able to trust that the defendant’s fundamental rights will be respected in the requesting country and that there will be an independent judicial review.  In addition, the single market can only work if the rule of law across Europe is guaranteed: you can’t have one without the other. If the rule of law is eroded, freedom and prosperity will suffer too.

The rule-of-law dialogue between national and European executives in the Council is about safeguarding the EU as a rules-based system. Ministers of Justice should discuss these matters with each other, both bilaterally and in the JHA Council. 

That’s one reason I gladly accepted the invitation of Professor Trócsányi to discuss these matters in more detail. As I see it, the justice ministers have an important role to play. From a legal perspective, they need to flesh out, debate and challenge each other’s views on what constitutes the nucleus of the rule of law.

I view the EU as a value-based community, with a rules-based system at its core. It is in our common interest that all member states adhere to those principles and rules.

Let me, at this point, come back to this quintessential element of mutual trust. I have always been a great supporter of the enlargement of the EU - being it southern European countries, coming from dictatorships in the 1970s, Nordic countries in the 1990s, or countries from Central Europe in 2004.

I realised that we would still have to cross some bridges to reach communality in the rule of law. But I have always put my trust in the people from other European countries. When joining the European Union, we would cross these bridges together. And I am still convinced that we shall.

Conclusion

Your Excellencies, ladies and gentlemen,

Let me conclude. Earlier in this lecture I alluded to the legacy of Count István Bethlen. His policies were outward looking, and he led Hungary into the international community. He made Hungary a member of the League of Nations, strengthened international trust in his government and thereby managed to secure important loans that helped stimulate the Hungarian economy and start a period of progress, growth, prosperity and success. That was for a previous generation.

It is my fervent wish that Hungary and the Netherlands, also for new generations, can work together on strengthening the international legal order, the rule of law and cooperation on justice.

I would therefore very much welcome seeing Hungary enhance its commitment to and engagement with the Union. Because that will benefit us all.

Thank you.