Report of the discussion on the European Human Rights Convention and Netherlands Law

Extract

Bellekom: The speaker referred to the two pillars of the conception of Meuwissen: 1. fundamental freedoms contain a constitutive element; they do not say only what is, but also what ought to be: 2. fundamental freedoms are an expression of values. The latter element can also be found in German literature, where the Constitution (containing within it fundamental freedoms and human rights) is referred to as a “Wertordnung” (order of values). Fundamental freedoms are, according to that theory, values, along with others, that can be brought to bear in a concrete case. The danger of this idea is that this “Wertordnung” will amount to an order of vested interests, one that preserves existing social-economic structures and limits the possibilities for minorities. In order to show that this danger is not an imaginary one, he referred to matters such as the “Berufsverbot” (exclusion from public service) and the exclusion of lawyers from- the defence in Germany. In those very cases an appeal was made, by way of justifying those practices, to the “freiheitlich-demokratische” (liberal-democratic) value of the Constitution, a value that is assumed to be a basic element of the Constitution, a value that outweighs even fundamental rights such as equal eligibility for the public service and the right to defend oneself through legal assistance of one's own choice.