Protest professor tinkers with law
'Better a good copy than a bad original'
Dutch citizens have the constitutional right to protest. This right is enshrined in the Wet openbare manifestaties (Public Assemblies Act), Wom.
Protesting is becoming more and more common in the Netherlands. The number of demonstrations in The Hague has nearly quadrupled over the past 15 years.
The Dutch right to protest is sound and prohibits substantive censorship. And yet there is room for improvement, claims RUG lecturer Berend Roorda who defended his doctoral thesis on the right to protest on Thursday.
The phrasing of the law, for instance, can lead to tension between the protesters’ rights and those of their fellow citizens. This often puts mayors in a tough spot.
In England and Germany, governments more often stake on the protesters’ own sense of responsibility and brainstorm with them together.
By updating the law and implementing a few small changes, Roorda thinks the Wom can remain relevant for the years to come.
Reading time: 6 minutes (1,107 words)
Sunday afternoon, 21 February, 2016. Prior to the league match against Roda JC, well over 300 Feyenoord supporters are marching through Rotterdam, heading for the Maas building. They want to throw moving boxes over the fence there, reiterating their message to the then Feyenoord board: leave! But before the supporters can reach the Maas building, they are surrounded by the police who – after some commotion near the group – arrest them and fine them for disturbance of the peace.
The case caused quite a stir. Roorda researched it at the request of the National ombudsman. ‘This was a demonstration that was not reported to the municipality in advance’, he says. ‘But it should have been: it’s mandatory. Moreover, a 2011 demonstration by Feyenoord supporters at the Maas building devolved into serious riots, so I can imagine that the board and the municipality were afraid this might happen again.’
And yet, says the doctoral candidate, the criticism aimed at the county and the police is not without merit. ‘The demonstration had not been officially announced, but mayor Aboutaleb did know about it. But he did not tell the demonstrators about the restrictions he was imposing on the march. The fact that the group was surrounded and arrested because of a commotion that occurred outside of the group was done on the basis of a bylaw that included a provision that actually prohibited the arrest.’
Protector and restrictor
Roorda realises that the Wet openbare manifestaties (Public Assemblies Act) – Wom – is not always unequivocally clear. ‘The protesters have their rights, of course, but things shouldn’t get out of hand, either.’ This could influence the considerations a mayor has to make when there is another protest or demonstration. ‘He is both protector and restrictor. There is constant tension between the rights of both the protesters and other people.’
While protesting is a constitutional right, a mayor can decide to impose restrictions on a demonstration to protect general well-being, traffic, and to prevent disorder. ‘In extreme cases, he can even forbid a demonstration, which fortunately hardly ever happens.’ Although this approach usually works, there are alternatives. Across the border, he learned that they do things differently.
Report of the Feyenoord supporters’ arrest. Source: RTV Rijnmond.
‘They stake much more on the demonstrators’ own sense of responsibility. In Germany, the authorities contact the protest group beforehand and private stewards are appointed whose task is to make sure their own demonstration does not get out of hand. In England, they specifically focus on communication with the demonstrators. So that’s more a case of collaboration between both parties than a clear top-down approach. I think that’s just beautiful.’
Emergency order
This top-down approach in Dutch policies can be seen even more clearly when a mayor issues an emergency order around the area where a demonstration is happening. When this is in effect, ‘civil rights in that area are curtailed in favour of public order and safety’, Enschede mayor Onno van Veldhuizen explains. That means the police can take swifter action and perform precautionary searches on citizens, for example.
Emergency order in Enschede during a protest at AZC Alert. Source: RTV Oost.
After a previous demonstration devolved into serious riots, Van Veldhuizen issued an emergency order for a demonstration against an asielzoekerscentrum (asylum seekers’ centre) – azc – in October of 2015. This was not the first time. The mayors of the towns of Heesch, Ede, and Steenbergen issued emergency orders for similar protests earlier this year. ‘It’s pretty much a standard tool’, according to Van Veldhuizen.
Roorda has come to the same conclusion, and he is not happy. ‘An order like that enables the mayor to take measures in exceptional situations, but it’s sometimes used for measures that disproportionately infringe on the right to demonstrate.’ His advice: incorporate an emergency authorisation for demonstrations into the Public Assemblies Act. Right now, the practice is too arbitrary.’
No swastikas
There is room for improvement, says Roorda. The act is due for an update. Last year, the Ministry of Security and Justice asked him to evaluate the Wom. Roorda’s comparative research into the German and English laws helped him in this task. ‘The rule of ‘better a good copy than a bad original’ applies here, too. But most of the law here is very good and clearly stated. Moreover, the law says nothing about the content of demonstrations, which I find very important.’
Pegida frontman arrested. Source: NOS.
In Germany, authorities can restrict or prohibit demonstrations on the basis of what they are about. That is not allowed in the Netherlands, although it did happen in Amsterdam last year. Prior to a demonstration of the anti-Islam movement Pegida, mayor Eberhard van der Laan forbade the depiction of swastikas in any form. The swastika is not reconcilable with Amsterdam’s traumatic past and its depiction could therefore result in strong reactions and disturbances of the peace, according to Van der Laan.
‘But no matter how well-founded his reasoning, he is legally not allowed to do that’, says Roorda. ‘If criminal offenses are committed during the demonstration, then the police can act. But the mayor may not enforce substantive restrictions beforehand.’
‘Cost shouldn’t be an issue’
‘Don’t get me wrong, I fully disagree with certain people’s views, but they have freedom of opinion, too. As they say: ‘I disapprove of what you say, but I will defend to the death your right to say it.‘
It is a complex issue, Roorda agrees. The regulation of demonstrations and mobilising the necessary police force is time-consuming and costly. ‘But the right to demonstrate is an important right in a democratic state under the rule of law, so cost shouldn’t be an issue.’
From judo champion to protest professor
Berend Roorda (1987) starts his career at the RUG in 2005. After his bachelor in law and a sabbatical, he graduated with his master’s in constitutional and administrative law with honours.
Roorda also excels outside the university environment. He won the Dutch judo championships in the under 100 kilos weight class three times. His athletic and academic performances earned him the title of ‘most excellent student’ at the Faculty of Law in 2011.
In February 2012, he started working as a lecturer at the department of general law and as a researcher at the Centre for Public Order and Public Security at the RUG. After four years, he finished his doctoral thesis ‘The right to protest’, which he successfully defended on Thursday. After obtaining his doctoral degree, Roorda will continue his work as a lecturer and researcher.