A new translation of an older and longer Dutch text.
The reason for this article was the annual report 2016 [Dutch original text is from 2017] of the ‘Council of State’ and more specifically the ‘reflection’ in it by that time ‘vice-chair’ Donner [1] of that important judicial organisation in the Netherlands. He gave his reflections the wonderful, slightly childish title: The Council in the state.
Those who can and did read it carefully (it is in Dutch only) find disturbingly nonsensical statements that seem mendacious. However, the story of this dishonesty changes when you consider other texts by this Donner. I have done that in a special way.
Before I report on that first a few remarks on thése reflections by Donner. The context of his remarks was that he wanted to get rid of the Referendum altogether in the Netherlands: a few years later he got his way! Dutch law had a law on referenda, specifically on advisory corrective referenda.
Frontal Attack on the referendum
The Explanatory Memorandum to the Dutch Referendum Act begins with a quote from the American (!) President (1901–1909) Theodore Roosevelt:
I believe in referendums, not to destroy the representative system, but precisely to correct it when it is no longer representative.
In Donner’s reflection in the annual report, he opened an attack on that whole idea of referendums thus:
In a consultative referendum, responsibility for decision-making is transferred to a non-competent body: the voter turnout [my bold]. This is especially the case if the representatives of the people concerned declare in advance that they are bound by the outcome. It is understandable that there is a fear of damaging confidence in democracy if a referendum is organised and its valid result is not adhered to, but it only proves that the instrument does not fit well into our constitutional system.
The Constitution unequivocally places the responsibility on the legislative bodies. It means that either the Constitution or the Consultative Referendum Act must be amended.
Deploying this attack is a significant change of course compared to previous advice from the Council of State. In 1999, the Council of State issued this advice [Dutch text of course] on the “(advisory) corrective referendum”. It contained, among other things, this passage:
The Council notes that the “repeal variant” in no way violates the letter or spirit of the Constitution. This variant forms the basis of the bill for a Temporary Referendum Act that is being submitted to the Council of State for its opinion. In this, the Council is followed where it believes that only the legislature itself must decide whether a law will come into force in spite of its rejection by referendum.
In fact, this so-called ‘repeal variant’ with regard to dealing with the result of an advisory corrective referendum had come from the Council of State itself!
In an earlier Council of State advice, Donner had already hinted that he doesn’t like referenda. Then, in 2014, the issue was building in a turnout threshold:
… the risk of including a threshold (…) [is] that the advice will become more binding when this threshold is met.
That in itself was not a foolish assessment on his part. But in the meantime we were in a situation where a referendum had actually been held and then the government had ignored the part of the law that says what to do after a public notice. Take note: that was a referendum on Ukraine! It dealt with the European Union Association Agreement. Over 4 million voters -61% of the valid votes- choose against that agreement.
Then and still prime minister Mark Rutte falsely claimed that he was going to respect the outcome of the referendum. By adding some kind of addendum, by his opponents later named ‘insert sheet‘. With his postponement and this ‘sheet play’, Mark Rutte flouted both the spirit and the letter of the referendum law. Note that the Council itself as an institute still expressed a negative opinion about that addendum.
But what did Donner do now? He did not even subtly indicate that the Prime Minister (in particular) has strongly fueled mistrust of established politics by pretending that he could think of some sort of intermediate form between the two options the Referendum law exclusively offered him.
Instead, Donner used this malpractice as a prelude to his own form of judicial-political activism in a frontal attack (almost as disturbing as what the then chair of the Dutch ‘Supreme court did earlier. See note 1).
“People’s democracy” and statehood
He pulled out everything. On page 20 he pleaded, literally, for “legal rearmament”. He was afraid that…
Eventually, legal relationships will then give way to relationships of power. Just as citizens are limited in their freedom of expression by respect for the honor and good name of others, those in authority and politicians must respect the constitutional order and relations from which they themselves derive their authority.
My bold again. In the introductory clause -why did he add that anyway?- Donner is apparently talking about slander. He is probably referring to article 261 of the penal code.
The word respect does not appear in it. If he is implicitly referring to the articles in the Penal Code about discrimination: the word respect does not appear in those either. And rightly so: respect is a term that has no place in law at all, certainly not since it has become primarily a mafia term.
And let this sink in: he talks about legal relationships that give way to power relations. Legal relationships are –more or less solidified– expressions of power relations. So, it’s a bit of a weird statement. A strange statement for a jurist and a very strange one for a jurist in the powerful position like his at that moment. Unless that jurist thinks that the law can be leading. Which lacks any sense of reality. This is also evident from this passage:
The Dutch legal order will have to arm itself against the drift in other countries towards more authoritarian forms of democracy and the violation of the principles of the rule of law. The Dutch legal order is intertwined in many ways with that of other European countries, based on the premise that it offers an equivalent level of democracy and rule of law. However, it will be impossible for the world to always conform to that assumption.
The last line goes in the direction of self-parody and/or senility. And what about Donner’s redefinition of the term People’s Democracy? Anyone over 50 or who paid attention during history class in school knows that this term stands for the way the communists perverted and ridiculed the concept of democracy. It built on the concept of the “dictatorship of the proletariat,” read: the dictatorship of The Party. People’s democracy was even part of the official name of many countries in Eastern Europe in the second half of the last century.
Since ‘demos’ roughly stands for people, but in Greek, the term was and is moronic anyway. Donner does not introduce a clear new definition in his ‘reflection’ Therein he does not write like a lawyer but quite loosely, but at the same time using difficult words. He used his own meaning. He came up with this absurd claim at the end of the passage:
In a system of more direct democracy, politics and debate are more focused on winning elections and thus on self-profiling, pleasing partial interests and sharpening contradictions.
But is it really about senility or lack of realism? Let this passage from page 15 sink in:
The growing contradiction between democracy and the rule of law in a number of member states creates an additional problem for the European Union. It is based on member states that are democratic constitutional states and on European obligations that are simply applied as law. The European Union has no police force to enforce obligations. It is based on the concept that Union law is applied unbiasedly and independently by the national courts and a court ruling is enforced by the national government.
It can be derived from the whole context that he presented the bolded line here as a problem. And in the sentence before and after was his answer. In plain words: the ‘national’ judges form the link that guarantees that Brussels is in charge of The Hague.
With that in mind, it suddenly becomes clear that in the title of his reflection ‘Council’ is ‘Council’ but ‘state’ is not capitalised, while this is really about the annual report of the “Council of State”; with two capital letters. The “State” in the name “Council of State” simply no longer refers to the State of the Netherlands, but to something like ‘stateliness’.
Honesty
Among the wisest words I have read so far about religion and fundamentalism are definitely these from Sam Harris: “The fundamentalists have actually read the books and they are right in what they say about them.”
The lesson I learned from it was that it is of great importance to listen very carefully now and then to what fundamentalists themselves say. Preferably to messages they proclaim at the moment that they think themselves more or less unseen. This provides a lot of information when it comes to Muslim ‘scribes’.
But it does not only apply to Muslim fundamentalists. After a very brief search I stumbled upon a performance by Donner, where he may also have imagined himself unobserved: among his audience there was probably not a single atheist, at most a single catholic. The video in question is from a performance on 18 October 2012. Donner received the first copy of “The Christian Dogmatics”, a book by “two theologians who want to keep the Christian faith tradition alive”.
First I watched the video without sound. Then with.
When you watch without sound other things stand out. Here, for example, Donner gives the impression of being much older than his age at that time: 63. The shadow shows that he is constantly standing in a slightly bent posture; and not just when he reads from his notes.
And he exudes plenty of modesty.
Of a false kind.
His body language is of someone who is not so powerful: “I’m just an old man.“
Remember: the position of vice chair of the Council of State he then held, is sometimes referred to as ‘viceroy’ in the Netherlands!
It is clear that he is addressing a few people in particular. When he looks in the direction of those people, he pulls a kind of roguish, somewhat mischievous face. It seems that there is no interaction with the audience. Of all movements of his upper body, more than 90% show the same pattern. For about half a second he lifts his head a bit and seems to look to the right –where the specially addressed are located– or to the left. In the first part, for every two times he looks to the right, he looks to the left once. Later, the ratio becomes three to one. Only at the very beginning he occasionally looks a little longer. Not once, however, does he give the impression of perceiving anything of the response.
State religion
Very modestly, he says that he is not an expert and does not understand why he was asked to say something. Is it self-mockery when he says at 5:40:
Calvin used the term institution instead of dogmatics. This shows that he was a lawyer: you call it something else and pretend that the problem is gone”?
As if to properly highlight the falsity of his modesty, he then comes up with “some associations” when choosing the date for the book launch. In this context he also jokingly refers to Constantine’s victory on 28 October, in the famous battle of the Milvian Bridge (in 312 A.D.: see accompanying screenshot). So famous that the battle also appears in historical novels.
According to Donner, this was “the most defining moment for the place of the Christian faith in Europe and in the world”. That’s quite shocking: Constantine was pre-eminently the man who forged church and state together!
The crux of his story comes at 19:25. Until then and again after, everything can be interpreted as a bit of banter. As if he wants to convey the message: don’t take me too seriously. I’m really not a statesman; nor do I want to be.
I wouldn’t mind politicians for whom freedom of religion is nothing more than a variant of the freedom of speech and association. That religion is of a very different order, because one must obey gods more than men, is no longer recognized. [2]
His emphasis with ‘very’, and his plural, my lower case for ‘gods’.
And he pulls that ‘Calimero card’:
Religion is allowed [by our opponents], only behind the front door.” … as in the past: “Then it was the Reformed faith that was the only thing that was allowed to be visible, now it’s the Enlightenment belief.
Then he talks about Christianity that “came to maturity 1700 years ago”.
In other words, he refers, again, nostalgically it seems, to the Constantinian state religion. In one fell swoop, he almost explicitly (at about 21:10) opposes the famous Thomas Aquinas by denouncing rationality in general.
At the conclusion of his talk, he put the desire to preserve Christian values on a par with the campaign slogan of the Christian Democratic Party (CDA) he belongs to: “Europe, pretty important” … “when you know that without Europe there is very little future”.
People of knowledge, demigods
Am I just lumping Christian fundamentalists together with Muslim ones? To a certain extent yes.
I know Christian fundamentalists who, despite my incurable atheism, still pray for my salvation. I appreciate that. Really. Not because I think it gives me a better chance of being admitted to heaven, but because they mean well with me. Absolutely incomparable with Muslim fundamentalists who gloat about the humiliations and pain I will suffer in hell. Not because it scares me: I don’t even know whether I would be confronted there with Muslim, Christian or infidel devils and which ones would be harder to eliminate.
But in this almost casual “because one must obey gods more than men” therein is a -in my opinion much understated – similarity between ‘scribes’ of Christian or Muslim nomination. Particularly with this ‘one’ instead of ‘I’. Whoever wants to obey his own God, Goddesses or Gods has my blessing.
However, Donner and I – get into serious conflict when he considers it a dogma that there are people who are closer to some divinity than others. Who can and must support His, Her or Their intentions and plans and want to assert their interpretations over others.
In their own views, these people are something between god and man: they consider themselves demigods.
Among Muslims, that group has given itself a name: people of knowledge. Others speak of the ulema. Donner does not come up with such a name. Only with this:
We are called to bear witness in the world, to give hands and feet to Salvation.
And to conclude, a comment on a famous statement by Donner from 2006:
If two-thirds of all Dutch people would like to introduce Sharia law tomorrow, then surely that possibility must exist?
An assertion that expresses that for him at the time, in that context, a definition of democracy as ‘most votes count’ suited him best. He later relativized this statement …
NOTES:
- This official is called ‘vice chair’ because formally its chair is the monarch. Donner was chair of this organisation in 2012-2018. Donner is the nephew of a famous chess player. He is the son of a man who chaired another judicial organisation called ‘Hoge Raad’: loosely translated ‘Supreme Court’. I made a rather alarming video about that institute.
- I was attacked by another fundamentalist christian because I heard Donner talk about ‘Gods’ (plural) while in fact he probably used the -in Dutch- completely obsolete genitive case. In a way the critic was correct. It is no surprise that this Donner, who does not mind to look older than he is, actually cherishes this idiosyncratic way of speaking. In the world of ‘christian ulema’ one doesn’t have to stoop to the language of the 21st century or of atheists…
LINKS:
The speech Donner gave in 2012 when he supposed he would not come under scrutiny from any opponent.
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