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Sinking Below Sea Level? Dutch Constitutional Standards on the Decline by Joes Gordon de Natris

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Sinking Below Sea Level? Dutch Constitutional Standards on the Decline

When the fourth Rutte government was inaugurated in The Hague, thousands of citizens, young and old alike, queued up outside various town halls. In a scene reminiscent of Netflix’s Squid Game, they stood there for hours, outdoors, in the winter, hoping to obtain compensation for damage caused by earthquakes. Earthquakes caused by gas extraction carried out by the national government. 

Rutte’s previous cabinets long refused to stop extracting natural gas. Only after the publication of a slew of research reports and heavy pressure from the media, local politicians, parliament, and the highest administrative court (the Council of State) did the government change course. Regardless, during the last days of Rutte’s previous government, it was announced that more gas would be extracted than had been anticipated.

Meanwhile, Rutte’s governments have dragged their feet for years over victim compensation. As it turned out, the government had not allocated sufficient funds to compensate everyone who qualified, so many affected people waited for hours for nought. The ‘equality before the law’ enshrined in the Dutch constitution became an empty slogan the same day Rutte’s fourth government was inaugurated.

According to constitutional scholar Lane, constitutionalism is the practice of constraining the government with the law, both in its treatment of individual citizens—as with the protection of individual rights like free speech—and through the separation of powers—as with the legislative primacy of parliament. The cracks in Dutch constitution have indeed developed along these two fault lines.

Promises from Rutte and his coalition partners of restoring confidence in the government ring hollow. The humiliating scenes in the province of Groningen were not even the only rule of law scandal that broke within a week after the inauguration! In a flabbergasting move, the new minister of justice suggested that the government would play no role in enforcing its own COVID measures. She undermined the rule of law by doing so, acting directly contrary to her job description.

Individual rights

The Dutch government has transgressed against individual rights in major ways on multiple occasions. In fact, the government has derailed tens of thousands of lives, and the affected families still have yet to be compensated. In the ‘childcare allowance scandal,’ the government falsely accused 26,000 families of fraud and subsequently withheld and reclaimed their childcare benefits. In many cases, this led to families incurring massive debts of up to tens of thousands of euros, debts that ultimately resulted in the government transferring at least 1,115 children into foster care because their parents could no longer take care of them. 

Signals that something was rotten were structurally ignored or hidden for years. Cabinet members discussed how to prevent parliament from accessing relevant information and even withheld information from parliament under false pretences. The highest court played an inexplicable role in this affair, denying victims publicly funded legal counsel and failing to protect citizens in court. Only dogged investigation by a handful of parliamentarians and journalists ultimately brought this affair out into the open.

On another occasion, the tax service flagged around 250,000 citizens as fraud suspects without any proven fraud, causing financial insecurity for thousands of citizens.

In another scandal, a former junior minister admitted that the second Rutte cabinet decided to cut subsidies for state-funded lawyers in order to ensure that more people would be sentenced. This was a response to parliament’s refusal to introduce minimum sentences—as MPs thought this interfered with judges’ capacity to take case-specific circumstances into account—even though this damaged citizens’ equality before the law.

The Dutch constitution protects the privacy of citizens for intrinsic reasons but also because citizens should not fear being blackmailed by the government over some ‘kompromat’ (compromising material). Therefore the government can only put citizens under surveillance according to specific legislation and has to treat private data carefully. Yet the NCTV, a counterterrorism service, surveilled hundreds of citizens, including perfectly ordinary active members of civil society, without a legal foundation and with no clear rules on how this data would be stored.

It was once unheard of that the government or civil servants should attempt to limit the free speech of private individuals. This has changed over the last year, despite the fact that free speech is a requirement for a functioning democracy, government accountability, and excellent public policy. Parents whose children were taken by the child protection service because of the childcare allowance scandal were threatened with the permanent loss of their children by civil servants if they continued talking to the media. 

The government has also tried to influence the public debate over Covid-19 strategy and tactics. For instance, paediatricians who are in favour of vaccinating children against Covid-19 were discouraged from talking to the media by hospital press departments or members of the government’s Outbreak Management Team. Similarly, the government has tried to silence public health scientists in favour of containing Covid-19 more than the government wanted. The ultimate source of these initiatives to limit free speech is unclear, but it is bad enough that it has been tolerated by the cabinet at all.

The separation of powers

In the Netherlands, parliament is elected to legislate, set the budget, appoint the government, and ensure the faithful and efficient execution of legislation. Therefore, the Dutch government has the responsibility of properly informing parliament about its actions. Meanwhile, the government—the executive branch, prepares bills for parliament to vote upon and amend and also executes legislation. This separation of powers is meant to ensure efficient and responsible government. Unfortunately, parliament is now less of a counterbalance to the government than it used to be.

Without proper information, parliament cannot hold the government accountable or prevent it from pursuing policies that diverge from the will of the people as represented by parliament. Consequently, lying to parliament or failing to provide it with necessary information is one of the biggest taboos in Dutch politics. Moreover, caught openly lying to parliament is extremely damaging to the trust people have in politicians. Despite this, the first three Rutte governments have repeatedly disregarded their responsibility to inform parliament, leading to a 65% increase (!) compared to previous governments in the number of cases in which the government turns out to have misinformed or failed to inform parliament. 

Take the ‘Bonnetjesaffaire,’ a bizarre, three years-long scandal that led to the resignation of four members of Rutte’s party including the chairperson of the lower house. They lied, or coached others to lie, to parliament about a sum of money (€2,500,000) that had been transferred in a prosecution deal fifteen years earlier and about whether the relevant documents could still be retrieved from the archives. It is still unclear what motivated them to risk their careers to lie about this minor issue. 

The government has also failed to comply with budgeting regulations, failing to account for 4% of total expenditures in 2020. The president of the Court of Audit called this major transgression against the budgeting rules a threat to a cornerstone of Dutch liberal democracy. Without the right information, parliament cannot verify whether the government is complying with the budget passed by parliament, or—in hindsight—whether any deviations were acceptable. Rutte’s governments also failed to inform parliament of the death of 70 civilians in an airstrike in Iraq in 2015. Misinforming parliament played into the cover-up of many of the other scandals discussed here, including the childcare allowance scandal.

This ties in closely with the government’s efforts to reduce transparency and the recording of communication within the government, the so-called ‘Rutte doctrine.’ As if it was not enough that the Dutch freedom of information act sets low standards compared to other EU members, the government habitually ignores this law too, by failing to publish certain documents or exceeding the explicitly stipulated response term. This makes it harder for citizens and journalists to control their government, and it allows the government to pursue policies under false pretences.

Lying to parliament and ignoring the freedom of information act severely disrupted the public and parliamentary debate on the government’s Covid-19 strategy, and the government has refused to provide transparency about its decision-making process. In the first national address by any Dutch prime minister since the 1970s oil crisis, Rutte announced the Netherlands would allow the virus to spread to build up herd immunity within hospital capacity. Yet within three months, Rutte denied—in parliament of all places!—having ever given a speech about herd immunity. Stranger still, multiple reports have shown that his government was actively pursuing a herd immunity strategy even as Rutte issued this denial. One of these reports is based on documents that the Minister of Health Care attempted to block from being published. Under these conditions, it has proved impossible for journalists and members of parliament to be properly informed about governmental policy in the biggest crisis to hit the Netherlands since World War II. It is parliament’s sovereign right to decide what Covid-19 strategy to pursue, so gaslighting parliament about what strategy the government is pursuing is a capital sin against liberal democracy.

The democratic legitimacy of Dutch legislation, as in all parliamentary democracies, depends on the legislative primacy of the elected parliament. Nevertheless, the government has assumed an outsized role in legislating—selectively ignoring legislation it does not like and pushing through major policy changes without a vote in parliament. The government has ignored legislation to reduce gas extraction in the province of Groningen, for example. It has also ignored international legislation on climate change that spurred Dutch courts to demand additional efforts to reduce CO2 emissions: the government refused to implement measures to ensure this would be achieved. 

Conversely, the government tried to change current policy on family reunification of refugee children without informing parliament. The cabinet announced it would comply with Dutch law only after a leading newspaper caught wind of the fact that 200 refugee children were already under threat of having to grow up without their parents or siblings, spurring parliament to push back against this policy change.

The cabinet also fails to respect parliament’s independence from the cabinet. The Dutch constitution’s ‘dualist’ approach to parliamentarism means that members of the cabinet cannot be members of parliament and, therefore, cannot vote on their own policies. In theory, this should also make parliamentary factions less dependent on the cabinet. Parliament in fact is already too dependent on the cabinet according to the Council of Europe, so further increasing this dependence is problematic. Even if parliamentary dualism in itself is not vital for a functioning democratic system (the UK seems to function quite well without it), disregarding the constitution in itself begets more disregard for the constitution. We only have to look at the United States to see where a spiral of increasing disregard for the constitution may lead.

Last year, Rutte tried to remove a critical member of parliament who belongs to another party, floating the idea of finding him a ‘position elsewhere’. When this was accidentally leaked, Rutte denied ever having said anything of the sort and tried to block the publication of the incriminating minutes that prove he indeed did make the suggestion. In yet another scandal, the government appointed members of parliament as junior ministers in the caretaker cabinet. While this is not strictly unconstitutional, the Dutch Council of State considers it unfortunate from a constitutional point of view. Only after much pressure from parliament and the media did these individuals resign their parliament seats.

The cracks are visible …

Under Rutte’s watch, we are witnessing a worrisome deterioration of constitutional practice in the Netherlands. Though the individual scandals described here are not unprecedented in recent Dutch history or in Western Europe—excessive strictness in anti-fraud policy has also led to painful events in Norway and Rutte is clearly no Lukashenko or Putin— the sheer quantity of scandals is unprecedented and alarming

Yet, it seems unlikely that the Dutch elite will pull itself together and fix Dutch constitutionalism. A fourth Rutte government was announced in mid-December, after an unprecedented 271 days of coalition negotiations. The main hurdle was neither how to restore constitutionalism despite Rutte’s continued presence nor the government’s chaotic pandemic policy. Rather, the negotiating parties found it acceptable to go without an active government for over nine months amid a global pandemic because two parties disagreed over whether to further liberalize the already very liberal laws on euthanasia and abortion. While both are important topics, the great majority of voters will agree that these topics are nowhere near to being top priorities right now. And within a week of the inauguration the government already undermined the rule of law twice.

… but who is going to fix things?

To restore constitutionalism in the Netherlands, most attention has been paid to what constitutional scholars call ‘formal institutions’. ‘Institutions’ are the rules according to which people behave, and they are ‘formal’ when these rules were created by an established government. So, attention has been paid to measures like increasing the supply of relevant information to parliament, reforming the electoral system, and instituting a constitutional court

However, Dutch liberal democracy functioned very well for many decades with few major constitutional amendments. The formal institutions have not changed much, and I would argue that they form a good foundation for liberal democracy. The problem is not that the formal rules to limit the government have changed. The problem is that the government is ignoring these rules. A government that ignores the currently existing rules is unlikely to stick to any additional rules that come its way. Any rule can be fudged, and quis custodiet ipsos custodes—who is going to guard the guardians?

Research shows that to survive over the long term, liberal democracy cannot solely depend on elite behaviour or some mechanical idea of checks and balances. There must be a high degree of consensus, spanning the major political cleavages in society, that there should be certain limits to state power. Citizens must punish the leaders of their own ‘camp’ if they transgress against the constitution, even if this transgression benefits their supporters in the short term. Crucially, checks and balances and the constitution do not only guide elite behaviour. They also exist to help citizens coordinate their punishment of transgressors against the constitution. The constitution can only survive if citizens across the political spectrum stand by and work through the constitution to punish its assailants.

Therefore, I suspect that the cracks in Dutch constitutionalism are a result of changes in aspects of society which are not formally regulated by the constitution. Bottom-up relations of extra-governmental accountability have broken down, and citizens are less aware of major transgressions against the constitution and find it harder to coordinate their electoral punishment of transgressors.

There is a lack of accountability on the part of political leaders towards their own followers. Party members allow their own leaders to get away with the most grotesque scandals. News media are not sufficiently critical of the government. For instance, the childcare allowance scandal, over which Rutte’s third government fell, did not play a major part in the subsequent electoral campaign. Meanwhile, long before election day, major media outlets were happy to portray Rutte as the presumed winner of the elections. Due to ever shorter news cycles, news media fail to distinguish between the fundamental and the ephemeral in their reporting, making it hard for citizens to distinguish between minor personal scandals and the wholesale undermining of liberal democracy. 

Civil society also often treats the government with kid gloves, perhaps because NGOs are afraid to lose government subsidies. If so, NGOs are part of a ‘manufactured civil society’—a group of non-governmental organisations that looks like civil society, but which to a large degree is actually part of the government through its dependence on government funding. Labour unions are similarly silent on the theme of liberal democracy, as if they never waged and won the battle for universal suffrage.

Liberal democracy is a sine qua non for a more just society, so why do so many political scientists seem more interested in migration, gender, and populism—as important as these topics may be—than in constitutional design and how to fix the faults in Dutch constitutionalism that affect everyone, especially the weakest members of society?

Even if the electoral system did not change at all, voters changed their voting strategies, and parliament fragmented into many tiny parties. Easily played off against each other, these diminutive parties lack the manpower to properly control the government and hold it accountable for its actions.

Fortunately, Dutch citizens have started to realise that there is something wrong in Dutch constitutionalism. In April 2020 almost 70% of the Dutch population trusted the government; this plummeted to below 29% by September 2021, even though Covid-19 measures were relatively mild at that time. Research indicates that this distrust is not due to the continual Covid waves and lockdowns or the childcare allowance scandal alone. It is the accumulation of scandals that has led to this dramatic loss of trust in the government. 

It is this moderate centrist majority of the Dutch population, which used to trust the government on a basic level but no longer does, that may restore Dutch constitutionalism to its former glory. This group needs to rebuild bottom-up relations of accountability in society. They need to begin holding party leaders, news media, and civil society organisations accountable for their (lack of) action—not just by walking away, but by raising their voice. They should write angry, but civil, letters to fumbling news editors and vote for opposition figures who stand a decent chance of disrupting the status quo in favour of liberal democracy. Civil society needs to decouple itself from the government and regain its independent voice. If all this happens, there still is hope for liberal democracy in the Netherlands.

Joes Gordon de Natris is a Ph.D. candidate at the University of Groningen in the Netherlands.

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