Dutch Rule of Law Alert
Why Dutch Constitutional Culture Is not Prepared for Geert Wilders' Shock Electoral Win
It is never a good sign when Viktor Orbán celebrates the election results of another country. Last Wednesday was one of those days. On X, formerly Twitter, Orbán stressed: ‘The winds of change are here! Congratulations to Geert Wilders on winning the Dutch elections!’. It became even worse: Russian State TV joined the party and applauded Wilders’ victory.
For the first time in the history of Dutch politics, a far-right party became by far the biggest party in the Dutch parliament. Geert Wilders’ Freedom Party (PVV), infamously known for undermining the judiciary and advocating for a Nexit, a ban on the Quran, closing Islamic schools and taking away voting rights for people with dual citizenship, won 37 out of the 150 seats. In the Dutch proportional electoral system, that equates to almost 25 per cent of the votes. It is bad news in many respects, and even more, because the Dutch constitutional system knows a lack of formal rule of law safeguards. In contrast to countries such as Italy or Germany, the Dutch constitutional system is not prepared for a democratic move to the anti-liberal far right.
A Broad European Shift towards Illiberalism
How did this enormous victory for the far right happen in a country that proclaims tolerance as its national virtue? Short answer: when virtue became vice – or, ironically put, because it became too tolerant. This tolerance of the extreme right became especially apparent in the way the centre-right VVD, the Dutch ruling party, treated Wilders in the weeks before the elections. After years of maintaining a ‘cordon sanitaire’, a ‘Brandmauer,’ between themselves and Wilders’ Freedom party, they publicly made clear that the PVV was an acceptable coalition partner. This (desperate) attempt to attract right-wing voters proved to be a capital mistake. As political scientist Joost van Spanje already observed: Dutch voters interpreted this message in the sense that a vote on the PVV was now socially acceptable. Lifting the cordon sanitaire, in combination with Wilders softening his tone on subjects such as the EU and Islam, resulted in the political earthquake Orbán & friends now applaud.
Yet, this is not the complete picture. If we add the seats of other extreme right-wing parties (yes, there are more) – such as Thierry Baudet’s Forum for Democracy – to Wilders’ victory, a shocking image appears: almost 30 per cent of the votes went to political parties that undermine the rule of law. This huge and unprecedented victory of the far right means that the Netherlands follows suit with a broad European shift to parties against liberal democracy – visible from Italy to Sweden.
How dangerous is this? Quite. While there is a rich tradition of thinking about militant democracy dating back to the 1930s, the constitutional system is largely built on informal norms. The lack of formal rule of law safeguards used to be a theoretical problem. Yet, the enormous and unexpected victory of the Dutch extreme right shows that it is naive to think that an illiberal turn would never happen in the Dutch consensus oriented democracy built around compromise and toleration of political, cultural and religious differences among citizens. To put it differently: since last Wednesday, the Netherlands (and the EU) cannot solely rely on the strength of Dutch ‘constitutional consensus culture’ anymore. Whatever the outcome of coalition negotiations, and while it is true that Wilders & friends still have to cooperate with moderate parties in order to form a government, this is the time to seriously think about including some new formal rule of law safeguards in the Netherlands.
Better Safe than Sorry
Where to begin? At least two flaws in the Dutch constitutional system deserve our immediate attention. First, the Dutch constitution neither knows an Ewigkeitsklausel nor a constitutional court. Much to the contrary, a ban on constitutional review even exists. Article 120 of the Dutch Constitution states that ‘the courts shall not review the constitutionality of acts of parliament and treaties’. Behind the ban on the constitutional review of legislation is a constitutional ideology grounded on the idea that the Dutch Parliament functions as a constitutional assembly that democratically reviews the constitutionality of its own legislation. In other words, only the Dutch Parliament decides whether legislation contains a conflict with the Constitution.
This idea of parliamentarians’ role as constitutional guardians used to work in the past. But what happens when Wilders & friends manage to find enough votes for legislation that goes against the constitution? Luckily, Dutch courts are allowed to review acts of Parliament regarding their compliance with directly applicable provisions of international treaties such as the ECHR. However, this is not a one-on-one replacement for constitutional review. As already stressed by Ingrid Leijten: Dutch courts are not always able to ensure effective protection of ECHR rights. Yet, it is perhaps even more troubling that all of the above might not even matter since Wilders does not see a problem in ignoring court rulings. A few months ago, he commented on such a violation of the trias politica: ‘That is doable, we should just try it.’ Such a ‘try’ would possibly mean that both Dutch and European courts could no longer defend marginalised groups in the Dutch political process. A worrisome scenario.
This brings us to a second constitutional bug: Dutch judicial independence is poorly defended. Already in 2018, Geert Corstens, former president of the Supreme Court, rang the alarm bells about this issue. In Dutch daily newspaper NRC, he stated: ‘I have been asked the question whether the independence of judges in the Netherlands is better protected by law than in Poland. The answer to the question could not be outright affirmative. There are all kinds of informal safeguards, but it is precisely these that are easily set aside when the tide turns.’
A case in point is the fragile way in which the Dutch Supreme Court selects its own judges. The procedure at the moment is as follows: First, the Dutch Supreme Court recommends six candidates to the Dutch parliament. Based on this list, parliament selects three candidates. The minister, then, appoints the number one on this list (but can theoretically choose from among the three candidates). In today’s constitutional culture, an informal norm exists that the recommendation of the Dutch Supreme Court is followed. In practice, this implies that the number one candidate brought up by the Dutch Supreme Court is appointed.
Yet, if the Dutch parliament wants to exercise more influence over the composition of the Supreme Court, there is no formal safeguard to prevent such. It can simply set aside the Supreme Court’s recommendation. Unfortunately, following the huge victory of the extreme right, this is not a theoretical scenario anymore. In the past, Wilders already challenged two appointments in the Supreme Court.
Just a month ago, the Venice Commission and Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe concluded the following about the functioning of informal safeguards entrenched in Dutch constitutional culture and practice:
‘The existence of such norms accepted by all institutions is evidence of a strong culture for the rule of law in the Netherlands. However, informal norms should not substitute formal safeguards altogether.’
These words were spot on. The report finished with the following sentence:
‘In this opinion, the Venice Commission and DGI provide the Dutch authorities with proposals and advice concerning rule of law safeguards which should be integrated in the legislation mostly as a preventive measure to protect it against possible political threats to the independence of the institutions examined in the opinion, which may arise in the future if the current political, societal and legal culture happened to change’.
Sadly, since last Wednesday, this future is now.
Two points: First, I don’t see a clear connection between radical right-wing parties and the disregard of judicial rulings. Deliberately creating rules that are expected to be overturned by the highest court, a tactic also employed by mainstream right-wing parties, seems just as problematic to me. Moreover, the left-right distinction is not always clear-cut. For instance, the PVV may be considered right-wing on immigration, but holds more left-wing positions on other issues. Second, regarding the appointment of judges: this is already a practice and is common in other countries, such as the USA. It’s not necessarily more risky under right-wing governments. Wilders doesn’t appear to have a specific agenda that undermines the rule of law, apart from some proposals similar to those of D66, like directly elected mayors and referendums. This could even be viewed as a democratic inclination, rather than the opposite.
It seems from this article that you do not have a problem with the Dutch system (after all, it has been perfectly functional for hundreds of years), but rather with the democratic election and the outcome you dislike. I recommend digging into the very real problems that prompted the majority of Dutch people to vote against failed policies that you and the minority of people who live very privileged lives support at the detriment of that majority. The didn’t choose Wilders because they woke up one day singing the Russian anthem, most of them couldn’t care less about that. They voted for him because mainstream parties did absolutely nothing to fix failing Europe.