July 12, 2015

Anti-gay loophole closed in Dutch anti-discrimination law

Filed under: Religion by Branko Collin @ 7:10 pm

A bizarre loophole that allowed religious schools to ban gay teachers was closed in the Netherlands on 1 July.

The law on equal treatment already forbade firing or refusing to hire teachers strictly because they are gay. An exception however existed for added circumstances, leading to the strange situation that a teacher could not be fired just for being gay, but could be fired for being gay and kissing somebody of their own gender.

In Dutch this exception was called the ‘enkelefeitconstructie’ (the ‘single fact construct’). The strange exception had remained in the 1994 law in order to keep Christian party CDA happy, but in 2014 almost all CDA MPs voted to remove it. According to the government, the exception has always been a dead letter, as no judge has ever allowed it to stand in a court of law.

Churches’ freedom to found religious, state-funded schools is considered part of the freedom of religion in the Netherlands and is enshrined in Article 23 of the constitution. Teachers can still be fired from religious schools for belonging to the wrong church, as three teachers from the Reformed Wartburg College found out last June after they were rebaptised by a different Protestant sect, AD writes.

See also: Church unlawfully fires woman for being transgender

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July 22, 2014

Dutch constitution will finally include e-mail

Filed under: General by Branko Collin @ 8:33 pm

grondwet-grondwetfestival_nlArticle 13 of the Dutch constitution declares a secrecy of correspondence, meaning the government and others are not allowed to snoop on your mail.

However, there is an unfortunate loophole: the law specifically talks about paper mail. E-mail was never included and therefore exists in a legal limbo.

According to Internet lawyer Arnoud Engelfriet, the council of ministers of the Netherlands has now proposed a change in the constitution that will not actually name e-mail, but which will make the phrasing of Article 13 more generic. A change in the constitution requires two consecutive parliaments to vote for that change, the idea being that the change can be made an issue in the elections.

Not that it matters much, as the Dutch constitution, which is now 200 years old, is more of a guideline than law. Judges are not allowed to ignore laws based on their constitutionality. The constitution may be said to have a normative function, for example, it could show courts how to interpret a vague law, but a 2009 study by the national government claims that this normative function is eroding (PDF). Instead a societal function is emerging, as the constitution aims to hold up a mirror to the citizens of the kingdom and to show us what our shared values are.

See also: an English translation of Article 13.

(Photo of the constitution of 1814 by Grondwetfestival.nl, used with permission)

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April 23, 2011

Looking back at the first and short-lived Dutch constitution

Filed under: History by Branko Collin @ 3:52 pm

Wedged between the Dutch republic and the Dutch monarchy—and like France and the USA born of the Age of Enlightenment—was the short-lived Batavian Republic (1795-1806). It was both the product of its time and of the continuous threat of French occupation.

The republic was working on a constitution that would help it move away from provincial powers and to a more unified state. In 1797 the government held what was to be the country’s first national referendum, in which the new constitution was soundly rejected. In the end this rejection only served to hasten the French occupation.

The General Principles of this first Dutch constitution were:

  1. The goals of a societal union are the security of person, life, honour and possesions, and the improvement of mind and morals.
  2. The societal pact neither changes nor limits the natural rights of man, except where necessary to reach society’s goals.
  3. All members of society have an equal right to its advantages, regardless of birth, possesions, standing or rank.
  4. Every citizen is completely free to have disposal of his possesions, income and the fruit of his ingenuity and labour, and furthermore to do anything that does not infringe upon the rights of others.
  5. The law is the will of the entire societal body, as expressed by the majority of its citizens or by their representatives. It is equal to all in protection and in punishment. It only pertains deeds, never sentiments. Everything that agrees with the unalienable rights of man in society cannot be barred by any law. It neither orders nor permits that which would conflict with this rule.
  6. All the duties of a member of society have their basis in this one holy law: do not do unto others what you do not wish to happen to you; do unto others, at all times, as much good as you would wish to receive from them under the same circumstances.
  7. Nobody is a good citizen but he who excercises the domestic duties of his rank with care, and who furthermore fulfills his societal duties in every way.
  8. The reverent recognition of an all powerful supreme being strengthens the ties of society, and remains warmly recommended to every citizen.

Modern day republicans still regard this text highly, some of them even considering it better than what we have now. Which, I guess, helps to explain the huge support for the royal house of Orange by the Dutch. Having royalists run the country may not be perfect, but it does seem to be the saner alternative at the moment.

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