By Niels Graaf
Dutch voters are heading to the polls today, and while the party landscape remains deeply fragmented, the far-right PVV led by Geert Wilders is likely to come out on top once again. In his op-ed, Niels Graaf argues that the previous government attempted to undermine the rule of law in the Netherlands and examines the risks that may lie ahead.
Almost two years ago, on November 28, 2023, I published an article on Verfassungsblog under the alarming headline ‘Dutch Rule of Law Alert’. Why Dutch Constitutional Culture Is not Prepared for Geert Wilders’ Shock Electoral Win’. Despite the unprecedented victory of the far-right – with nearly 30 percent of voters supporting parties that, in one way or another, challenge the rule of law – some readers thought the piece was over the top. Others called it an eye-opener, as it shattered their belief in the Netherlands as a perfectly organized democratic state governed by the rule of law. I argued that under rigorous scrutiny, the so-called model pupil of Europe turns out to be not quite as well organized as its reputation suggests. The Dutch constitutional system, suffers from a lack of formal safeguards for the rule of law, particularly when it comes to judicial independence.
The government propped up by Geert Wilders’s far-right Freedom Party (PVV) was, as it turned out, never destined for a long life. Today, the Netherlands heads to the polls again. As Wilders’s PVV once again looks set to secure the largest share of seats in parliament, the editorial board of Review of Democracy asked me to revisit the message I voiced in my Verfassungsblog article. More specifically, did the now-defunct government exploit the absence of formal rule-of-law safeguards, and did we witness signs of democratic backsliding during its short tenure? What will become of the Dutch far-right after these new elections?
The Short Life of the Wilders Government
I’ll begin with the first two questions. The short answer: yes and no. Much has happened over the last two years, and much has not. The latter is a subtle way of saying that after Wilders’s shock electoral win in November 2023, it took no less than 223 days before a new government was finally formed. After months of negotiations, focusing on the rule of law and what that concept actually entails, the PVV, together with three other political parties, joined the coalition, while Wilders himself chose to remain in Parliament. The premiership went to the so-called ‘partyless’ Dick Schoof. Alongside the PVV sat the VVD (the liberal party that produced figures such as Mark Rutte and former EU Commissioner Frits Bolkestein) and two newcomers with no prior governing experience: the centrist conservative and pro–rule of law Nieuw Sociaal Contract (New Social Contract) and the agrarian lobby party BoerBurgerBeweging (Farmer-Citizen Movement).
This mixture resulted in the least productive government of the century. In its brief time in office, it accomplished little according to research by De Groene Amsterdammer, conducted in collaboration with Utrecht University’s Data School. Hardly any legislation was introduced, and the Council of Ministers proved indecisive.
The government eventually collapsed because Wilders’s PVV did not get its way on several key (migration) issues with its coalition partners. That outcome was, in a sense, characteristic of Dutch democracy: a system that has a moderating effect on its participants. Anyone who truly wants to achieve something in this country must make a gesture toward the political center.
So, was the “rule of law” alert exaggerated? No, it was not. While the government did not, so far, attack judicial independence (something I had warned about, since the Dutch parliament could exert influence over the composition of the Supreme Court without any formal safeguard to prevent it), one of Wilders’ loyal ministers attempted something I had not anticipated in my Verfassungsblog piece.
State of Emergency Abuse
I am referring to September 2024, when, just two months after taking office, the newly formed far-right government attempted to declare an ‘asylum crisis’ to trigger emergency powers. The affinity to Orbán’s playbook in Hungary is troubling; in 2015, the Hungarian government similarly declared a state of emergency over migration.
Had the emergency regime been activated, it would have allowed the Dutch Minister for Asylum and Migration to limit family reunification rights and freeze asylum approvals indefinitely. Most importantly, he could have done so while escaping parliamentary oversight. This was facilitated by articles 110 and 111 of the Aliens Act, which enable the government to enact rules that deviate from the Act in extraordinary circumstances through ‘government decrees’ instead of ‘Acts of Parliament’. The use of government decrees bypasses parliamentary involvement, thus allowing rules to be enacted without control from either the Senate or the House of Representatives.
This constitutional aspect is particularly significant, given that the government did not hold a majority in the Senate. To put it bluntly, it sought to declare a crisis not because an actual emergency required it, but to exploit the Dutch emergency regime as a way to bypass the obstacles created by its minority position in the Senate.
I fear this case illustrates the early stages of rule-of-law backsliding, even if the process was ultimately halted before it fully materialized. This is without even mentioning the lack of temporariness: the government failed to specify when this so-called crisis would end.
The whole process is especially troubling because the Senate is constitutionally tasked with reviewing legislation on its lawfulness, practicability, and enforceability. In the Netherlands, where constitutional judicial review is prohibited – a point we will return to – this function is crucial. Ultimately, the plan to invoke emergency powers was abandoned because of internal criticism from within the coalition. Nonetheless, the government announced that the proposed measures would be incorporated into ordinary legislation ‘as soon as possible’. It is not to be expected that the Senate will approve this law.
Attack on Independent Institutions?
Although the spotlight is usually on the PVV, it is worth noting that over the past two years, a worrying development has also taken place within another Dutch political party, the Farmer–Citizen Movement (BBB). Once primarily characterized as an agrarian lobby party, the BBB has increasingly adopted rhetoric that is difficult to distinguish from the PVV’s in its hostility toward the rule of law. Just a few weeks ago, its party leader, Caroline van der Plas, proposed on national television to change the appointment procedure of the Dutch Council of State. The Council – whose advice is formally non-binding, though it is customary to follow it – she argued, had been too critical of the government’s legislative proposals, supposedly because of a left-wing bias. In doing so, she questioned the Council’s impartiality, a discourse likely to intensify should its members raise doubts about bills supported by the BBB in the future. According to van der Plas, members of the Council of State should be appointed by the House of Representatives. This proposal challenges the long-standing tradition whereby the Council nominates its own candidates and, by extension, threatens the independence of an institution that also serves as the country’s highest administrative court.
Today’s election – More Risks Ahead?
What to make of the new elections? While the margin is smaller than in 2023, the PVV once again leads in the polls. Yet there is one major difference: this time, the PVV is almost certain to be excluded from the next government. Unlike two years ago, neither the VVD nor any of the other mainstream parties are likely to cooperate with Geert Wilders’s far-right movement. They appear to have learned from the past. The Christian Democratic Appeal (CDA), which has surged in recent polls, has repeatedly ruled out collaboration, and the centrist and left-leaning parties categorically refuse to work with the PVV. Newcomers, such as New Social Contract (NSC) and the Farmer–Citizen Movement (BBB), appear to be losing a significant share of their seats. Yet other far-right parties seem to be profiting from their decline.
We must therefore remain alert. In this context, it is a positive sign that a process of constitutional renewal has begun. While the plans for a constitutional court are still being developed, it now appears more likely that the government will opt for a system allowing every court to review legislation for its constitutionality. At the same time, efforts are being made to reinforce the foundations of the Dutch judicial system. Last February, members of Parliament submitted questions to the Minister for Justice and Security, pointing out the need to strengthen safeguards of judicial independence. While the minister responded positively, it is worth noting that he belonged to New Social Contract (NSC), a party that has since imploded under the strain of its cooperation with Wilders. The Dutch Council for the Judiciary has also made its voice heard. Its president argued that the time has come to reduce the minister’s influence over appointments to the Council, not least because that influence could, in theory – and so far thankfully only in theory – extend to the appointment of court administrators nominated by the Council itself. One can only hope that these proposals will soon be brought to fruition.
Niels Graaf is an Assistant Professor of Constitutional Law at the University of Amsterdam.
This article is published under the sole responsibility of the author, with editorial oversight. The views expressed do not necessarily reflect those of the editorial team or the CEU Democracy Institute.
