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Wim Voermans in Nieuwsuur on weak legal basis of curfew

The decision by the court in preliminary relief proceedings to immediately lift the curfew in the Netherlands – following a case brought by pressure group Viruswaarheid (Virus Truth) – has been overturned until the appeal on the case is heard this Friday. The government is doing everything in its power to secure the current curfew measure.

The legal basis for the curfew appears to be weak and the legal wrangling going on is planting the seed of doubt among the Dutch population. In the meantime, the government is working on a second route with emergency legislation so that the curfew can continue in some other form if the current measure is dismissed on appeal. The proposed emergency legislation will be presented to the Dutch House of Representatives on Thursday, the day before the appeal.

Wim Voermans, Professor of Constitutional Law in Leiden, believes that the government is to blame in this matter.  The current construction (under the Wet buitengewone bevoegdheden burgerlijk gezag (Wbbbg)(Civil Authority Special Powers Act)) is not appropriate for the curfew. The Wbbbg can only be used in emergency situations. And that is not the case here, as the court ruled in the preliminary relief proceedings. Parliament should have been involved much sooner via a separate Act for the introduction of the curfew. In other countries, parliament was involved to a far greater extent in this process. As already advised by the Dutch Council of State, the government should have used the same set of instruments it used to draw up the Covid-19 Emergency Act, Voermans said in Dutch news programme

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