Some legal ‘world news’ from the Netherlands. The District Court in the Hague has ruled on Wednesday in actions against the Dutch State and the SGP Political Party with regard to the party’s objection against full participation of women in political affairs. Background: the SGP party, founded in the Netherlands in 1918 and nowadays consistently holding 2 seats in the country’s 150 seat parliament, allows women to be “extra-ordinary” members, but withholds them a say in the party’s internal organization and is against women standing in elections. Like other political parties in the Netherlands, the SGP receives a government subsidy (ca. 800.000 Euro annually) and free air-time on national tv.
In the action against the State, several organizations that strive for equal treatment of men and women argued that the toleration and active support (through subsidies) by the State of the SGP party amounted to a violation of art. 7 of the Treaty banning all forms of discrimination against women. The action, in the form of a collective claim in tort (art. 3:305 Dutch Civil Code, in force since 1994) was held admissible by the District Court, since the various organizations could be said to represent a valid collective interest, as required by the provision of the Civil Code. This collective interest consisted of “the interest of all, especially of women, to live in a democratic society in which discrimination based on gender – with the result of exclusion from the right to stand in elections – will not be tolerated and in which the State actively protects this interest”. In a telling aside, the Court added: “this interest receives additional weight in view of the fact that it is not at all illusory that other parties will be founded in the (near) future, that will also discriminate against women on the basis of religion. The State should fulfill a guiding role in this field”. Art. 7 of the Treaty being accorded direct effect in the (monistic) Dutch legal order, the Court held that the government committed a tort by not sufficiently fulfilling its requirements. There could be no balancing of the right of women not be discriminated against rights of freedom of association and expression, as the State had acceded to the Treaty without reservations and the Treaty did not allow for any derogations based on competing fundamental rights. The Court was vague about what the State should do precisely to end the situation of conflict (just as it was vague about the exact content of the State’s tortuous conduct and inaction) but held that at a minimum, future subsidy requests should be denied.
A parallel action against the SGP itself was dismissed for lack of interest. The collective interest identified in the case against the State was held not present here because the claim was about the specific right for women to become full-members of the party. The claimant organizations did not represent any such women in individual claims, because no women could be found that wanted to press for membership (in fact, women involved in the SGP had indicated prefering to solve the issues within the party).
The judgments can be found here (in Dutch; summaries and full-text). These are very difficult cases. Courts should, in my view, be reluctant before intervening in the political process, especially when conditions to be placed on political parties are concerned. In this case, parliament and government had long been aware of the SGP’s policy and had never intervened. Context seems to have been all important here, and the Court was clearly afraid that, although at present the SGP is somewhat of a lone curiosity in the Dutch political system, the party could be joined in the near future by new political organizations advocating the exclusion of women on the basis of Islam. As far as the legal treatment of the issues is concerned, the Court’s vague description of the content of the norm actually transgressed by the State, and thus also of the actions required to mend this violation, is remarkable. The Court explicitly agreed with the claimants that ending subsidies might not be sufficient to legalize the situation (see par. 3.42 of the judgment). There are obvious and serious problems with courts telling defendants “you’ve acted in violation of the law, but we can’t exactly tell you how to stop doing so”.
In the action against the State, several organizations that strive for equal treatment of men and women argued that the toleration and active support (through subsidies) by the State of the SGP party amounted to a violation of art. 7 of the Treaty banning all forms of discrimination against women. The action, in the form of a collective claim in tort (art. 3:305 Dutch Civil Code, in force since 1994) was held admissible by the District Court, since the various organizations could be said to represent a valid collective interest, as required by the provision of the Civil Code. This collective interest consisted of “the interest of all, especially of women, to live in a democratic society in which discrimination based on gender – with the result of exclusion from the right to stand in elections – will not be tolerated and in which the State actively protects this interest”. In a telling aside, the Court added: “this interest receives additional weight in view of the fact that it is not at all illusory that other parties will be founded in the (near) future, that will also discriminate against women on the basis of religion. The State should fulfill a guiding role in this field”. Art. 7 of the Treaty being accorded direct effect in the (monistic) Dutch legal order, the Court held that the government committed a tort by not sufficiently fulfilling its requirements. There could be no balancing of the right of women not be discriminated against rights of freedom of association and expression, as the State had acceded to the Treaty without reservations and the Treaty did not allow for any derogations based on competing fundamental rights. The Court was vague about what the State should do precisely to end the situation of conflict (just as it was vague about the exact content of the State’s tortuous conduct and inaction) but held that at a minimum, future subsidy requests should be denied.
A parallel action against the SGP itself was dismissed for lack of interest. The collective interest identified in the case against the State was held not present here because the claim was about the specific right for women to become full-members of the party. The claimant organizations did not represent any such women in individual claims, because no women could be found that wanted to press for membership (in fact, women involved in the SGP had indicated prefering to solve the issues within the party).
The judgments can be found here (in Dutch; summaries and full-text). These are very difficult cases. Courts should, in my view, be reluctant before intervening in the political process, especially when conditions to be placed on political parties are concerned. In this case, parliament and government had long been aware of the SGP’s policy and had never intervened. Context seems to have been all important here, and the Court was clearly afraid that, although at present the SGP is somewhat of a lone curiosity in the Dutch political system, the party could be joined in the near future by new political organizations advocating the exclusion of women on the basis of Islam. As far as the legal treatment of the issues is concerned, the Court’s vague description of the content of the norm actually transgressed by the State, and thus also of the actions required to mend this violation, is remarkable. The Court explicitly agreed with the claimants that ending subsidies might not be sufficient to legalize the situation (see par. 3.42 of the judgment). There are obvious and serious problems with courts telling defendants “you’ve acted in violation of the law, but we can’t exactly tell you how to stop doing so”.
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