Political and criminal responsibility

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Roel de Lange* IV B 1

Preliminary remarks
According to the Questionnaire1, the following relevant questions were to be addressed:
I. Concepts and definitions

II. Constitutional and legal status of Head of State, Head of Government and Ministers in relation to national and international criminal law

III. Responsibility of Head of State, Head of Government and Minister(s) for criminal acts or omissions committed by their subordinates, i.e. civil servants

IV. Distinctions between governmental (official) and personal criminal responsibility.

V. The availability of immunity and/or indemnity from criminal prosecution.

VI. In which courts would criminal proceedings take place?

1 Scope of this Report
This report deals primarily with national constitutional law. Matters of Dutch criminal law are discussed where appropriate. The impact of international law, although possibly increasing since the Netherlands signed the treaty in which the Statute of the International Criminal Court is laid down, forms no part of our discussion.2 Reference to the International Criminal Court is made only in passing.
2 Head of State
The Kingdom of the Netherlands is a constitutional monarchy. The King is Head of State. Since 1898 the office of King has been held by a woman, after a period (1890-1898) in which the Queen Mother acted as Regent. According to Dutch constitutional law, the question who is Head of State is not a difficult one, although there is no explicit provision in the written Constitution. The Constitution of 1814 spoke of William as Sovereign Prince. According to contemporary practice, the establishment of an hereditary monarchy in the Netherlands in 1813 implied that the new Sovereign Prince was Head of State. In 1815, following the Vienna Congress, a new state was recognised, comprising the Netherlands and part of what is now Belgium (separated in 1830). In a Proclamation of March 16, 1815,3 in which unity with Belgium was proclaimed, the Prince referred to himself as King of the Netherlands, and this title was recognised by foreign governments at the Vienna Congress.4 The 1815 Constitution referred to the King. During the important Revision of the Constitution in 1848, the Government explicitly referred to the King as the Head of State.5 This was never contradicted, and has been generally accepted in constitutional doctrine ever since.6

The King as Head of State has the power to bind the Kingdom of the Netherlands in international relations (cf. Vienna Treaty, art 7 § 2 sub a). This is also true for heads of government and ministers of foreign affairs. The King traditionally plays a central role in the field of foreign affairs. The most solemn treaties are signed by the King himself.7

In international negotiations, the Kingdom is usually represented by the minister of Foreign Affairs or persons acting on behalf of the minister and under his instructions. Occasionally, other persons have represented the Kingdom, sometimes in a (seemingly) independent role.

Apart from his role in international relations, the King also has a role to play in domestic affairs, albeit a very limited one.8 In the process of cabinet formation - which is usually a matter of coalitions between political parties in the Netherlands - the King appoints the formateur, who leads the negotations between the political parties. Normally speaking the formateur becomes the new Prime Minister, although there is no rule of constitutional law which makes this necessary. Moreover, there is a chance that a formateur will not be succesful and has to be replaced by another formateur. The new Prime Minister takes political responsibility for the decisions which the King has taken during the formation of the new cabinet, including the appointment of formateurs.

The Constitution also provides for some other tasks, such as the ratification of Acts of parliament (article 87 of the Constitution) or the reading of the official speech (troonrede) at the State Opening of Parliament (article 65 of the Constitution). These tasks do not involve the exercise of any real power.
3 Who is head of government?
The Dutch Constitution has never mentioned a Head of government. Until recently this used to be no problem. Over the past years, however, questions have been asked concerning the position of the Dutch Prime Minister in relation to the European Council, which according to article 4 of the Treaty on European Union consists of `Heads of Government' and Heads of State. Since in the Netherlands the King is part of the government (article 42 of the Constitution) and is head of state, one might think that the King is head of government as well, but in practice this was not the case. The position of Head of government has - until the year 2000 - never been formally recognised.9 The position of the Prime Minister is traditionally referred to in the Netherlands as a primus inter pares.10 Like its parallels in other countries, Dutch prime ministership rose to prominence during the second half of the 19th century. Dominating figures like Johan Thorbecke (1798-1872), who led the - then much smaller - Cabinet during the years 1849-1853, 1862-1866, and again in 1871-1872, and later Abraham Kuyper (1837-1920), Prime Minister from 1901-1905, took a position which led Van Raalte in his 1917 dissertation about the office of Prime minister to the conclusion that there was a discrepancy between written law and political reality. At that time, the presidency of the Council of ministers was only temporarily held: the ministers elected their president annually. The Royal Decree of September 26, 1922, no. 18, ended this situation and made the presidency of the council of ministers a permanent position. Since 1933 normally, though not always, the formateur, i.e. the person who was asked by the King to form a government, became prime minister. There was no election by the Council of ministers, although this was still required by the Council's Reglement van Orde.11

In 1983, the present article 45 was incorporated in the Constitution. The second section of that article states that the Prime minister is the president of the Council of ministers. It was generally acknowledged that this provision does not make him head of the government.

In 2000, in its Memorandum on Kingship (Beschouwing over het koningschap, TK 27 409, nr. 1), the Cabinet took the position (albeit implicitly and in passing only) that the Prime Minister is the head of government (`regeringsleider'). Almost certainly, this sentence was written especially for use abroad, to provide clarity with regard to the position of the Dutch Prime Minister. The position of the Prime Minister as the Head of Government has been generally recognised. The reference in the 2000 Memorandum only affirmed and confirmed the situation that had developed inside the Cabinet.

As a matter of constitutional law, the situation may be summarized as follows:

- The King is Head of State (an office not mentioned in the Constitution) and member of the Government (article 42 of the Constitution);

- The Prime minister is head of the Government (an office not mentioned in the Constitution, although article 45 § 2 awards the prime minister the position of president of the Council of ministers);

- The King is inviolable, the ministers are responsible (article 42 of the Constitution).
The responsibility of ministers is criminal and political. Criminal responsibility is regulated by the 1855 Act on Ministerial Responsibility (Wet ministeriële verant­woordelijkheid), which so far has never been applied. The extent of political responsibility is entirely a matter of unwritten law and convention. Inviolability of the King seems to many people to make legal sense only if it is understood as inviolability of the King's person. Nevertheless, during the preparation of the Constitution in 1848 it was argued by members parliament that unlike the Belgian Constitution of 1831 the Dutch Constitution should not refer to the King's person, but to the King. The reasons for this are not explicitly stated during the parliamentary debates on the revision of the Constitution in 1848. They may be found in monarchical sentiment in times of a democratic revolution in Europe. As far as the Netherlands are concerned, 1848 comes close to a constitutional and political revolution as well. In that year, the foundations were laid for the development of a parliamentary system, which matured in a period of about 20 years. That parliamentary system gradually became more democratic with the extension of the franchise, although general suffrage was not introduced before 1917, then again under the influence of political developments abroad.
4 Political responsibility12
4.1 Introduction: the Basics
A.D. Belinfante, professor of Administrative law at the University of Amsterdam, already in the 1960's suggested that the basic rules with regard to political responsibility were interlinked and could be formulated in the following way:

1. No powers without responsibility - No one should have powers to exercise official public authority, unless he or she can be held responsible for the exercise (or non-exercise) of those powers;

2. No responsibility without powers - No one should be held responsible for acts or omissions falling outside the scope of his powers.

These are very clear guidelines, which still have their practical value. Being guidelines, they cannot and should not be interpreted too strictly in practice. Political responsibility includes that one may be held responsible for having failed to obtain certain powers, if such an omission results in grave damage to the public interest. It implies also, that if members of parliament ask a minister for information which lies outside the scope of a minister's powers, the minister will normally answer such questions if it is obvious that either no other minister would be able to answer, or failure to answer would be considered as a political weakness which might result in political consequences for the minister involved.

4.2 History of political responsibility

4.2.1 Origins of political responsibility of ministers in the Netherlands

The political responsibility of ministers was introduced into the Dutch Constitution in 1848. Criminal responsibility of ministers had existed since 1840, when articles 75-77 of the Constitution were revised. The new article 75 provided that the Heads of Ministerial Departments were responsible for all acts which they performed or to which they contributed or cooperated, by which the Constitution or an Act of Parliament would be violated. Article 77 provided that the Hoge Raad would be the court before which the charges with regard to the responsibility mentioned in article 75 were brought. This put beyond doubt that responsibility in article 75 of the 1840 Constitution referred to criminal responsibility only.

Political responsibility was seen in 1848 as an extension of criminal responsibility.

In the period between 1848 and 1868, a parliamentary system developed in which the confidence of the States-general in the Cabinet, and in ministers individually, became the crucial factor. Parliament emerged from the conflicts of the years 1866-1868 as a clear winner, and it was then firmly established that Parliament ultimately decided the fate of the ministers, and not the other way round.13
4.3 The classical doctrine of ministerial responsibility
According to the classical doctrine of ministerial responsibility the minister is responsible for acts of the King, for his own acts or omissions, as well as for the acts of civil servants working under his direction. Ministers are responsible to Parliament. Both Chambers of the States-General have the power to require information from ministers, and ministers are under an obligation to provide such information unless the provision of such information conflicts with the `interests of the State' (article 68 of the Constitution). In practice this exception is rarely invoked, although sometimes ministers refuse to provide information on other grounds than those related to security and defense matters. Reasons related to financial interests of the state have also been invoked by ministers. It sometimes happens that ministers refuse information to Parliament on grounds not mentioned in the Constitution. Occasionally, Parliament has accepted such a refusal. In exceptional cases, citizens have been able to obtain information which ministers refused to give to parliament, through the Access to Government Information Act.
An example is the Securitel-affair, so called after the decision by the Court of Justice in case C-194/94 [ECR 1996, p. I-2201], CIA Security v. Signalson & Securitel. In the debate in the Dutch parliament on the consequences of this decision, ministers refused to provide a list with legislation which should have been notified to the European Commission. Such a list had been drawn up by civil servants, and members of the Second Chamber requested on the basis of article 68 of the Constitution that the minister would reveal its contents to parliament. Parliament accepted the minister's refusal. Citizens then requested the list on the basis of the Government Information (Public Access) Act. The minister refused, but this refusal was speedily quashed by an administrative court.14
The classical doctrine of ministerial responsibility rests on the assumption that there is a sufficiently hierarchical relationship between ministers and civil servants. Ministers must have effective control over their civil servants.

The classical doctrine of ministerial responsibility holds that the minister is politically responsible to parliament and that civil servants do their work entirely under the control of the minister. For the theoretical foundations of this model of bureaucracy one is often referred to Max Weber. The model rests on the assumption that there is a hierarchical structure of ministerial departments, and that the minister has sufficient powers as well as possibilities to ensure that his civil servants do what the minister wants them to do, and provide the minister with all the relevant information. If these conditions are fulfilled, Parliament may have effective control over the executive, via the minister.

The classical doctrine holds that ministerial responsibility contains various elements:

- Responsibility for acts of the King. Following article 42 of the Constitution, the King is inviolable, and the ministers are responsible. This is universally taken to mean that nothing the King ever says or does can entail political, criminal or civil responsibility.15 The King may not be `exposed', i.e. his acts may in no way cause controversy and if so this should never touch the King personally. In practice, the Prime Minister is the minister who is most closely in touch with the King. Every week the King is consulted, the Prime minister supervises the writing of the King's texts, hardly any act of the King will escape ministerial control. In practice, however, there is a certain recognition of the privacy of the King's person, including a say in holiday destinations.16

- Responsibility for the minister's own acts. This is the most obvious part of ministerial responsibility. It is important to note that responsibility regards the office of minister, whereas political confidence (as relevant in the rule of confidence) regards his or her person. This means that parliament may express lack of confidence also on the occasion of a minister's private behaviour.

- Responsibility with regard to acts of civil servants. This responsibility used to be self-evident, but in practice it is possibly the case that more or less autonomous acts of civil servants, and the restructuring of the civil service in order to meet modern organisational and political requirements and insights, have done much to undermine classical structures of political responsibility. The situation in the Netherlands is probably less dramatic than in the United Kingdom, where a recent manual of constitutional law stated that the doctrine of individual ministerial responsibility `has been significantly weakened over the past ten years or so, so that it can no longer be said, in our view, that it is a fundamental doctrine of the constitution.'17 Nevertheless, also in the Netherlands there have been complications in applying the doctrine of ministerial responsibility in some cases where acts of civil servants were involved.

The classical doctrine is really quite simple. As is well-known, practice is much more complicated. First and most importantly, there is the problem of information: it is not always certain that the civil servants give the right information to the ministers, and that it is right to blame the minister if the civil servants made an error in this respect. Apart from cases in which ministers have been misled, or have not been fully informed by their civil servants, there have been cases in which civil servants have not informed their minister about possible implications.

When Winnie Sorgdrager became minister of Justice in 1994, one of her first acts was to put her signature under a deal with a criminal informer. This deal had already been made under the previous minister. Although formally responsible, the minister was not informed about certain implications of the deal. Among other things, the informer was paid an amount of money to set up a new life abroad with a new identity. It later turned out - to great embarrassment of the minister of Justice - that the informer had duly received the money but had always remained in Rijswijk (very near the Hague), where he lived.
Also, there are cases in which civil servants made a wrong assessment of available information and of the need to tell the minister.
A clear example is the case of the Bijlmer-disaster. An El Al freight Jumbo crashed on an block of flats in a residential area in Amsterdam on October 4, 1992. Information regarding the cargo was not speedily given to the minister of Transport but kept confidential by certain civil servants. This became apparent only during a parliamentary inquiry more than six years later, and led to a fierce reaction both from the inquiry committee and from the prime minister. It later turned out that the information had probably been incorrect anyway but the civil servants' attitude in this matter was a matter of heated debate.

Political responsibility of ministers is commonly described as risk liability, i.e. that it is not necessary that a fault lies with the office-holder. It is a matter of dispute whether it is necessary that a minister can be blamed personally for acts or omissions of civil servants.18

Following Mark Freedland, one could compare governmental organisations and departments to large ships. The larger the ship, the less it is appropriate to say that the captain is steering it. On the other hand, `if the super-tanker founders on the rocks, we tend to regard it as rather over-punctilious for the captain to feel obliged to go down with the ship.'19

Freedland's observation that responsibility was less seen to be taken on a personal basis but more and more on an `institutional' or `vicarious' basis, and that `[i]n those circumstances, it came to seem less necessary for the minister to pay a personal penalty for departmental error by resigning from office',20 is certainly also appropriate for the Netherlands. The assessment - and maybe even the demise or at least the crisis - of the classical conception of ministerial responsibility as `inappropriately sacrificial' has led in the Netherlands to what was termed a `democracy of excuse' (`sorry-democratie').

- Responsibility with regard to autonomous administrative bodies / agencies.21 With regard to autonomies administrative bodies (zelfstandige bestuursorganen) ministers have less powers than with regard to the civil service. This leads to a diminished scope of ministerial responsibility. Powers with regard to autonomous bodies may include powers of appointment, powers of supervision, and powers with regard to the budget. From the start it has been recognised that there would be problems and complications with ministerial responsibility with regard to autonomous bodies / agencies. Precisely because they were not part of the classical departmental organisation, but were placed at a distance from it though not entirely privately organised, the crucial question of budgetary and managerial autonomy arose. A governmental proposal for an Act concerning autonomous administrative bodies is presently debated by the States-General.22
4.4 Modern developments
Ministerial responsibility has been a matter of continuous debate over the past decades.23 The main problems which led to modern developments in the doctrine of ministerial responsibility have to do with the relationships between ministers and their civil servants. As in many other countries, developments in the public sector in the Netherlansd have included the rise of the civil service and of bureaucratic government apparatuses. Not only an increase in numbers but also a growing power of the bureaucracy, especially after World War II, led to questions with regard to political control, the relationship between ministers and their civil servants, and the relationship between ministers and Parliament, both with regard to political control and with regard to Parliament's role in the process of legislation.24

In an essay in the Nederlands Juristenblad, Scheltema has summarized the ratio of political responsibility in two points:

* that government policies correspond with the wishes of the majority of the population, since political functionaries make the crucial policy choices; political responsibility serves democratic legitimation;

* In a general sense, ministerial responsibility serves to ensure that the governmental organisation functions well.25 It serves to establish lines of responsibility within the governmental organisation. Since the organisation is hierarchical, responsibility is naturally also hierarchical.

Scheltema argues that for guaranteeing the quality of the public service, other mechanisms than political responsibility of ministers are more appropriate. Monitoring by independent bodies, such as a `Quality Chamber', would be feasible and appropriate according to Scheltema.26
4.5 The problem of government integrity
A parliamentary commission has made an inquiry into the use of `experimental' forms of criminal investigation by the police. During that inquiry allegations were made that police officers had been involved in drug trafficking. Obviously this caused grave concern, so much so that after some years a new parliamentary inquiry was made to see what had been done with the results of the first one. The second inquiry resulted in a report in which again very alarming figures were produced. Both these inquiries gave a boost to the government's attempts to combat corruption and promote the integrity of government officials. Several proposals were made in this context, both with regard to general criminal law as with regard to the rules concerning civil servants. The government has taken a number of initiatives with regard to the struggle against corruption and that this issue has a prominent position on the political agenda.

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