Focus: Advice on the Undesirable Foreign Funding of Organisations and on the Rule of Law
In order to illustrate the functioning and practical use of the procedural mechanisms on constitutional advice mentioned before, I will focus in this section on a concrete policy and legal topic that was discussed intensively last years in the Netherlands, and probably also elsewhere: the so called undesirable foreign funding of organisations (Sect.
4.6.1). Another topic illustrates the use and practice of constitutional advice will be advice on the Rule of Law and state powers. That topic will be addressed briefly in Sect. 4.6.2.4.6.1 Constitutional Advice Regarding Undesirable Foreign Funding of Organisations
The coalition agreement in 2017 raised concerns on the foreign funding of political, civil society or religious organisations in the Netherlands:
The use of social media or funding of organisations in the Netherlands for the purpose of exerting influence from countries that are not free is undesirable. Steps must be taken to ensure that funding from abroad to political, civil society or religious organisations is not used to buy undesirable influence. To this end funding flows of this kind will be rendered more transparent, with reciprocity as an important benchmark. Funding flows that abuse our liberties, originating from unfree countries, will be restricted as far as possible.[209]
In order to operationalize this passage of the agreement, many efforts and initiatives have been taken by the government. The parliament followed its own way, but in the end all efforts of both government and parliament came, the more or less, together. All these efforts resulted in, inter alia, a draft bill on undesirable foreign funding of organisations. I shall come back to this later. I’ll first describe some of the steps taken which finally ended into this bill. These steps can be interpreted as seeking constitutional advice or at least advice on a topic about which constitutional elements could not be neglected in advice.
In February 2019 the cabinet issued apolicy letter to the parliament informing the parliament on the cabinets considerations how to implement the plan; an appendix to this letter concerned a professional survey that raised different constitutional difficulties, especially concerning the compatibility of possible solutions with constitutional norms.[210] Sometime later, after many years of relatively fruitless debate in the parliament on the undesirable financing of especially mosques and executing a motion,[211] the House of Representatives initiated an inquiry on the undesirable influence of unfree countries by installing a parliamentary committee on inquiry (Pocob) on 2 July 2019. Its report of 25 June 2020, based on February hearings on the issue, noted a lack of transparency on foreign funding of mosques, the extensive use of social media to disseminate ‘strict’ religious messages within the Muslim community, and the influence of some countries, including Kuwait, Qatar, Saudi Arabia, and Turkey, in local mosques through their training of imams.[212] The report, however, made no recommendations on how to counter possible extremist influence accompanying donations from ‘unfree countries’ to local Islamic institutions. The Muslim community, Dutch Muslim Council (CMO), and Council of Jews, Christians, and Muslims (OJCM) stated they were disappointed with the report, noting that it, among others, did not make a clear distinction between the small number of ‘ultra-orthodox’ Muslim groups and the majority of Muslims active in mainstream society. On 23 November (2020), the government stated in a reaction to the enquiry results that it shared concerns on undesirable influences through foreign funding and proposed legislation that would give mayors and the Public Prosecution Service the authority to inspect all donations from outside the EU or European Economic Area to any organization.[213]
Besides, the cabinet informed the parliament about the results of a research it had organized trying to get more clarity on the scope and nature of the foreign financing by research via the Scientific Research and Documentation Centre (SRDC) (Wetenschappelijk Onderzoek- en Documentatiecentrum (WODC)).[214] The research could not really give that clarity however.
Meanwhile, the cabinet did not succeed in drafting a bill on the issue of limiting foreign funding. Therefore, and probably for political reasons, the government requested the Council of State for an informative advice, which was issued on 28 August together with its advice on the bill Transparency of civil society organisations.[215] The advice was made public with the mentioned policy letter.[216] Like the professional survey from 2019, the advice was very critical on both topics. The critic concerned both the policy analysis and the constitutional compatibility of the intention to forbid undesirable foreign funding from unfree countries and of the proposed Bill Transparency. In its policy letter the cabinet announced an amendment of the bill which was prompted to the parliament the same week.[217] At the same time it acknowledged the problems identified by the Council of State concerning the intention to forbid the undesirable foreign funding, but also announced new investigations and an alternative approach for a draft bill, namely by focusing on the conduct of organisations and not on unfree countries.[218] Then, during the parliamentary debate on the Bill Transparency in the spring of 2021 the government was asked about the execution of a motion presented during the debate on the Pocob, which motion asked the government to introduce ‘enforcement instruments in order to be able to block flows of money, introduce a ban on receiving money or to confiscate this, when there is some talk of undermine of our democratic values, fundamental values or human rights’.[219] In order to execute this motion, which was carried by a large majority, the government drafted in some months a letter of amendment to the Bill Transparency. It was the object of internal constitutional advice, referring inter alia to the advice of the Venice Commission, advice via an internet consultation and then sent to the council of ministers in order to send the draft bill to the Council of State for advice.In short, the intention of banning the undesirable foreign funding of civil society and religious organisations by a new law was apparently the object of study, research and political debate for many years, and finally it was made concrete by a draft bill within a few months. The issue must have been the object of at least seven pieces of (more or less constitutional) advice.[220] It is not clear yet whether, and if so when, the final draft will be issued to the parliament and how convincing the final arguments for its constitutional compatibility will be.
4.6.2 Rule of Law and State Powers
As mentioned before, another topic that illustrates the use and practice of constitutional advice is the advice on the Rule of Law and state powers. As long as the nation state and its state powers exist, their functioning and relationship have been object of constitutional advice by different actors. The government established a state commission on the parliamentary system in 2018, which delivered its advice in 2019.[221] The senate organised policy debates on the rule of law once in two years. A parliamentary commission for Internal affairs organised a round table conference for members of parliament, judges and legal scientists on so-called dikastocracy (government by judges).[222] Later on the House of Representatives organized another conference on the trias politica. Furthermore, the Council for Public Administration delivered an important advice called ‘A stronger Rule of Law’.[223] Not at least, the topic was really an issue for the House of Representatives’ parliamentary committee of inquiry on the implementation of the childcare allowances system. This ended in different motions, e.g. on a request to the Venice Commission for advice and on the preparation of the installation of a state commission on the rule of law. The House of Representatives adopted a motion that announces a yearly parliamentary debate on the State of the Rule of Law in the Netherlands.[224] Meanwhile, the commission Fokkens advised—in a different context—on a specific issue. Besides, since 2017 there is a Rule of Law dialogue in the EU and since 2019 a European Commission rule of law mechanism exists.[225] They all have their own backgrounds and rationales.
At the same time still has to be considered what will be the exact added value of (the accumulation of) all these mechanisms.
4.7
More on the topic Focus: Advice on the Undesirable Foreign Funding of Organisations and on the Rule of Law:
- Contents
- Introduction
- STATE OF THE ART: PRACTITIONERS, RESEARCHERS AND TRAINERS
- Potential Conflict of Interest Situations and the Codes
- CAT 2006
- 45 Fur and Fire