The American or
British reader of articles on Western European politics is accustomed to
discussions about social welfare systems, a single currency, or the pain of
forming a ruling coalition in a multi-party system. But rarely if ever is the
integrity of the continent’s democratic institutions called into question. Eric
Schliesser explains how the degradation of the judicial branch in the
Netherlands by the Dutch bureaucracy has led to an overall deterioration of democracy
in the country.
If
the Netherlands had a strong judicial branch, such as the proponents of a
right-wing coalition for our country often claim, ordinary citizens wouldn’t
have to worry about the role of Wilders in the government, whether that be as
an actual minister or more of a behind-the-scenes role. In that case, changing
the name of the Ministry of Justice to “Ministry of Security” would just be
part of a somewhat scary PR campaign. But, more and more in the Netherlands,
it’s precisely when the political and commercial interests of the government
are threatened that the judicial branch is becoming an extension of the
government instead of a unbiased guarantor of our
constitutional rights.
In
reality, judges in politically sensitive cases can very much be influenced. If
you know about the case that the Srebrenica survivors brought against the Dutch
state, you can no longer be comfortable about how the judicial branch functions
in the Netherlands. The results were manipulated by the sudden replacement of a
judge in a way that worked against the victims. Judges were also conspicuously
replaced in the cases that developer Chipshol brought
against Schiphol Airport. Schiphol has in the meantime morphed into a real
estate and parking enterprise in the “Green Heart of Holland” and in which
various government bodies are shareholders turning a nice profit. Insiders that
want to move up the ladder understand those kinds of signals perfectly. After
all, our judges are only human, right?
This
is how we slide into situations that are totally normal in, say, Singapore.
There, you have a perfect combination of politically tinged verdicts on the one
hand, and on the other hand, normal, efficient, verdicts that are neutral
beyond reproach in civil cases. Judges have no trouble sleeping at night, but
no one ever doubts what the verdict will be in a case where the government has
voiced an interest.
The
highest administrative court in the Netherlands, the Council of State, has
played a questionable role in this successful politicization of the judicial
culture. After the European Constituion was rejected
in a referendum, the Council of State concluded in 2008 that the Lisbon Treaty
was not an amendment to the European Constitution. Fearing the growing
influence of Geert Wilders, a second referendum about the Lisbon Treaty was
found “unnecessary”. Is it really this council of political appointees that is
supposed to protect us from the creeping authoritarianism of government?
The
Netherlands is in fact regularly given sound slaps-on-the-wrist by the European
Court of Human Rights and the United Nations when it comes to basic human
rights. It’s a surprising contrast to the Netherlands’ eastern neighbour
Germany. There, they have a Constitutional Court that keeps a great distance
from the government and often works unequivocally in an opposite direction.
Protection of constitutional rights ia
concept deeply anchored in modern German judicial culture.
In
the Netherlands abuses and judicial errors are then often written off, made to
seem as benevolent “incidents”. There is no culture of justice in our judicial
branch: hundreds of staff of the Ministry of Justice knew that evidence was
held back in the Schiedammerpark murder case. More recently the government promised for the
umpteenth time that recordings of lawyers and their clients will automatically
be destroyed in the future. That is, of course, until the next “incident”.
“Rules
are rules,” is often heard. But our State can simply ignore its own laws
without consequence. In the few cases which are addressed, a new law can
protect the government. A symptom of this is the judicial vendetta against whistleblowers that in any other democratic country would
never take such harrowing form.
The
relatively quiet introduction in 2005 of the requirement that citizens carry
identification was probably the tipping point. From that moment on we were, in
the eye of the State, no longer citizens but rather a number with an associated
risk profile. The law was not so much a consequence of our discomfort with
terrorist threats, but rather a natural result of a bureaucratic process that
had been introduced under the ambitious “purple” coalition by means of article
8a of the Police Law in 1993 – an article whose notoriousness was at the time
not recognised. That law gave the police very wide latitude to demand id.
Even
though the Netherlands is one of the safest countries in the world, the State
is far from a neutral referee; the government has far-reaching powers,
especially for checking up on society. In order to prevent fraud (they say),
citizens’ data is kept in files linked to each other. The ideal of being able
to create a better and freer society has perhaps been left behind, but in its
place has arisen a subtle culture of “monitoring”
society. Privacy apparently doesn’t fit into the Zeitgeist of data mining.
So
it’s not only the defenders of a right-wing coalition that have misplaced
confidence in our judicial system. The eloquent and mostly left-wing critics
that call out the danger of Wilders idealise the inward-looking culture of our
judicial branch and our bureaucracy. The law should radiate its persuasiveness.
But Dutch verdicts seem more like they are written by computer programmes.
Moreover,
and this is in fact worse, Wilders-bashers seem completely blind to how regular
Dutch political practice undermines the rule of law on a daily basis. A state
with rule of law is more than a state with unbiased judges and with clear
transparent rules and respect for the rights of citizens. To put it simply: in
a state with “rule of law”, the law qhas to stand
above the fray. That’s not how it is in the Netherlands. I’m not only referring
to the government’s propensity for interference; the law is, in our country,
most of all a way to represent well-organised interests. This is perhaps
unavoidable in a democracy, but it’s now time to stand back and realise how our
democracy has called up forces that are anti-democratic and have little
integrity.
The
Netherlands is the only Western country without lobbyists and representatives
of special interests; here, we talk about “society’s midfield” – those parties
who belong to the in the Netherlands vast sectors of unionised labour,
organized business-groups, and government employees. Irrespective of how poorly
or how well such a "midfield" functions, those outside,
that is those not recognized by the state as a "social
partner," are left to fend for themselves.
In our society this means mostly people who have no choice to be
independent contractors, part time workers, the more poorly educated, and
people in the grey economy, who more and more are
becoming the victims of an ever more uncertain world. The more the State takes
care of the insiders, the more the outsiders are the unprotected cushion for
society as a whole.
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Let’s
be clear: I’m not concerned here with how moral it is that the average worker
in our society has to finance the generous salary and benefits of the
administrative layers of the mostly better educated, labour force of the
quasi-governmental organisations (universities, hospitals, housing
cooperatives, utilities etc.), and now also the financial sector. I’m concerned
with how the well-educated elite lets others carry the
banner for a more free-market operation of the economy. An average graduate of
a vocational school
will feel the discipline of the free market far more strongly
than someone with a master’s degree. The huge club of political nominees and “protectees” have removed all risks – for themselves.
No,
this is about how each time that the law is used as a sort of “grab bag” to
reward and protect political insiders with subsidies, legislation and prohibitions, this is at the expense of the rule of law.
Each day, every citizen sees that the State favours entire groups of insiders.
At the same time the State presents the outcome of all those political
transactions as a sort of unavoidable natural phenomenon. Most
often with the seal of approval of the Central Planning Bureau (CPB), even
though the CPB should act a little more low-profile after all the mistakes of
recent years. The citizen can see the gap between the actual results of
political decisions and the claims of the hired spokesmen and communication
experts. Why should he show concern for and solidarity with society if the
bureaucracy and its consultants are such a poor example? But because the
government can protect itself so easily and is a source of favours for him, the
Dutch man-on-the-street instead gets angry at those without power or influence.
This is the source of resentment for the Dutch people, which expresses itself
in irritation about the supposed preferential treatment for immigrants. Paul Scheffer has been praised for his courage in breaking the
taboo about the how society should be multicultural. But he was silent about the culture that
makes it possible to search for scapegoats.
He was rewarded for his courage, of course, by being made a professor.
That sort of injustice is timeless.
Apart
from that, it is no coincidence that the calculating and beer-swilling students
know damn well that in our country, in the end, who you know is more important
than grades. Once on top of the bureaucratic pyramid, the social and
enterprising products of our system of “college friends” cut universities’ budgets and demand that they push
students through the diploma mill more efficiently.
Justice
may, in most cases, still apply our laws with her blindfold intact, but who
writes our laws? Mostly people with an excellent eye for
insiders’ interests.
I’ll
give an example that progressive Holland is often proud of when dealing with
foreign countries: our drug policy. For the sake of simplicity, I’ll ignore the
small-scale corruption and creeping disregard for the law that tolerance of
“coffee shops” enables. “Nice” people can get soft drugs easily and without any
chance of prosecution. That appears to be an enlightened policy. But the “criminals” that grow and transport
marijuana for our decent citizens are also sent to prison on a regular basis. The
law is not exactly colourblind, to put it politely.
Right-wing critics of the legislature’s multicultural and international
“hobbies” are quiet about this, as is the left-wing chattering class.
The
other important pillar of a state with rule of law, law enforcement, is in the
Netherlands still the responsibility of an unelected mayor. The average citizen
cannot reward or punish him for his performance. These mayors often have to
deal with large-scale public disturbances, not only at football stadiums and
beach parties. Den Bosch (2010), Groningen (1997), Utrecht (2007), Culemborg (2010), and Gouda (2008) have all had street
riots in recent years. The sparks that set off these riots are all local in
nature, but the mediaeval circumstances are national in nature. Rioters are
often bought off with new public facilities, just as Amsterdam squatters used
to be. The call for powerful measures and strong leadership from fearful
citizens, who feel ignored, is unavoidable. Police are encouraged to be
stricter and stricter, but repression only encourages respect for the enforcer,
not for the law itself.
The
problem with law enforcement is also a topic of discussion in public debate.
Critics of Wilders have already been threatened. Politicians that hesitate to
cooperate with him would rather keep quiet. Will critics be able to count on
protection from the State in the future? Pim
Fortuyn’s fate bodes ill for the rest. Those who can remember the Willem Oltmans case know what happens to Dutch journalists and
critics who go against the government. Oltmans was still able to count on the powerful “our type
of people”. But that will no longer be
an option for many critics. Self-censorship will be the norm. Those who think this conclusion exaggerated
mustn’t forget how easily Barend and Van Dorp gave into the Hells Angels on prime time television
after violent intimidation. How many cartoonists will have second thoughts
after the arrest of Gregorius Nekschot?
Soon
the most powerful politician in our country will stand in court again. At first
the State's attorney general did not want to prosecute Wilders. With his
influence increasing will he become untouchable in the future? Will a judge
ever dare to pass a sentence? The interests of the employees of the government prosecutor’s
office seem to be better served by not working against its paymaster than by
preserving rule of law.
If
prisoners die in Dutch jail cells, then the minister responsible resigns, as it
should be. The same minister who resigned can become a minister again in six
months, for example Minister of Social Affairs and Labour. In the meantime,
Wilders defines the boundaries of debate in a symbolic political culture in
which political “team players” know that their future jobs have already been
sorted out.
It’s
a mistake to think that the problem is that our political elite doesn’t have an answer to the underhanded campaigns of
Wilders. Wilders is a product of the politics of The Hague. It has, as I’ve
tried to show, exerted its dominance by deep degradation of the rule of law,
something which has been long in the making.
Whatever
cabinet we wind up with, Wilders can hide like a puppetmaster
behind parties which are democratic in name. But during the recent election
campaign neither the Christian Democrats nor Labour trusted their own members with democratic input
into the choice of party leader. Maybe they saw how difficult it was for our
anticipated prime minister to defeat Rita Verdonk in
a democratic contest for leadership of his party. Even the reelection
of Femke Halsema as party
leader of the Greens was against the rules of her own party. Such
irregularities can all be easily explained. But our political class, which
ignores its role in setting an example, is not exactly cozying
up to democratic rules for themselves.
Dutch citizens have drawn few encouraging conclusions from this.
Eric
Schliesser