COMMENTARY: Donation ban law is a judicial policy slippery slope

Fundamental freedoms and legal principles are at stake in the draft law banning donations — despite the fact that the real problem of donations is unknown. Nor, moreover, is it expected that the law will have any particular effect on the problem.

By Mikael Wandt Laursen, Secretary General of FrikirkeNet
Photo: Danmarks Nationalbank

COMMENT: The paradox, unfortunately, is now well known: in our zeal to defend democracy and fundamental freedoms and human rights, we are ready to violate even the same democracy and rights.
It began with the Preachers Act, where certain expressions of speech in a religious context were criminalised, and it now appears in a toughened form in the Bill banning donations. In this context, attitudes judged by the Immigration Service to be subversive to democracy and fundamental freedoms and human rights can lead to secret investigations, which can result in sanctions without the possibility of party consultation.

There is a worrying amount of elasticity in these formulations about being “subversive” — anything can be put under such a hat. And the only modifying examples mentioned are agitating against female preachers and urging not to exercise one's right to vote. By themselves, they are not enough to trigger sanctions, but they could cause the Danish Immigration Service to decide to conduct a closer investigation — so, for example, the Catholic Church could be exposed to fake SoMe profiles created by the Danish Immigration Service because the church does not have female priests.
Because yes - fake profiles on social media become, by law, an option for the Finnish Immigration Service. Potentially exposing Danish citizens with non-criminal attitudes to this kind of beards and blue glasses surveillance is completely out of proportion to the problems the bill wants to solve.

And have you first been subjected to a secret surveillance and in addition — must you assume (?) — have been the subject of a thorough investigation, of which, however, one was not aware of, then one may suddenly be notified that one has been placed on an official ban list. Without the slightest chance to verify, nuance or counter the information of the Immigration Service in advance.
The right to a party hearing is suspended, citing practical difficulties in finding the address of a person abroad, as well as the fact that a donor will be able to expedite a donation before the donor is placed on the no-fly list. But there is no need to break a fundamental principle of the rule of law simply because it foresees problems in being able to implement it in relation to certain donors. There, the government must find other ways to deal with these challenges without the residents losing one of the fundamental principles of Danish law.

If you complain about being placed on the list, the complaint will not have any suspensive effect. In other words, you will hang in a public yawn without having had the opportunity to object, explain or otherwise — and there you will remain until you have proved that it was not justified to hang there.
And if the complaint is not upheld, all that remains is the courts or the Danish Parliament's Ombudsman - a paltry consolation, since a trial is both expensive and can be prolonged in time - and the very act of playing the Ombudsman on the court in a bill in this way almost screams to heaven: We know that this one is not good - but you can just complain to the Danish Parliament's watchdog.

The purpose of the Act was originally to prevent foreign donations to religious communities, associations, etc., in Denmark if these donations undermine democracy and fundamental human rights and freedoms. But why are Danish citizens and Danish associations covered by the bill?
The law takes us off on something of a judicial policy glide path.
In a country with democracy and freedom of expression, as well as freedom of thought, conscience, association and religion, one should not be able to be punished or face sanctions as a result of one's positions. Danish legal principles must apply to everyone, including those we do not like or disagree with. We do not want a thought police where the state will determine what attitudes are comme il faut.

With such dramatic encroachments on the freedoms of Danish citizens, you would expect that these are really serious and well-documented problems that the law has to solve.
But no:
“... there is no concrete knowledge of the extent of foreign and domestic donations to recipients in Denmark”.
And:
“... it is the Minister's assessment that, in practice, a limited number of persons, organisations, etc. are likely to be included on the list”.

So you really don't know how big the problem is. And, by the way, it is not expected that the law will have any particular effect on the problem.
In addition, donations that could cause foreign policy problems are not included. Totalitarian regimes can thus continue to channel funds via their representations in Denmark if it is inappropriate to intervene in foreign policy.
But the law is nonetheless claimed to be important because it can create “... an increased public debate and awareness of unwanted donations...”.
Once a law is passed, the debate is usually over. So - if debate is the purpose, can't we just stop here, let the proposal fall -- and salvage some basic rule of law principles?

In the fight against radical Islamism, we must not lose ourselves. Then we lose.