Interview Ellen Pasman

Attorney Ellen Pasman: 'Under the rule of law, it should be about the citizen first'

If the government wants to regain citizens' trust, it can start by complying with the law itself, says lawyer Ellen Pasman. “Law is not a game.”

Emiel Hakkenes

justice and security editor

September 26, 2024, 8:38 PM

If the word combination “Amsterdam lawyer” conjures up images of expensive cars, Ellen Pasman does not live up to the stereotype. Riding a bike, wearing a helmet, the lawyer arrives at the terrace next to Artis Zoo. She greets a box and takes a seat for a conversation about the relationship between citizens and government, and the role of lawyers in this regard.

The reason for the conversation is Pasman's lecture this Saturday, the first Meindert Fennema lecture, named after political scientist Meindert Fennema, who died last year. Debate center De Balie, which is organizing the lecture, was looking for a speaker who “thinks independently,” says Pasman. She finds “a great honor” that the choice fell on her.

Recurrent failure

That may be unnecessarily modest, because, as a lawyer, Pasman has been pointing out recurring failures to the government for about thirty years. Among other things, she is assisting affected parents in the benefits scandal. In the nineties, she was also the lawyer of journalist Willem Oltmans in his years of proceedings against the Dutch state. Oltmans suspected that the state was deliberately opposing him, out of dissatisfaction with his good contacts with Indonesian President Sukarno.

These experiences, says Pasman, also brought her to the topic she will address in her lecture on Saturday. “I want to talk about the uncontrolled power in the Dutch rule of law: the national lawyer.”

The state attorney assists the State of the Netherlands in legal proceedings. Since the middle of the last century, the national lawyer has been a lawyer at the Pels Rijcken & Droogleever Fortuijn office in The Hague. For the law firm, the government is by far the most important client, charged between 50 and 60 million euros annually.

What do you mean by the 'power' of the national lawyer?

“The state attorney represents the state in court, but the firm's lawyers also advise ministries on the legal side of policy. You saw it in the benefits scandal: the tax authorities policy to recover all childcare allowance paid out from parents if it was suspected that something was wrong had the approval of the national lawyer. And the national lawyer also defended this method in court cases. While it is against the law. That is a serious problem, because a lawyer's job is also to protect a client from taking the wrong steps.”

And why is that power 'uncontrolled'?

“We don't know what exactly the state attorney advises. That is confidential. In the investigations and parliamentary surveys that have been carried out in response to the benefits affair, the three state powers have turned inside out: members of the House of Representatives, i.e. parliament, administrators, i.e. the cabinet, and judges, i.e. the judiciary. But the state attorney was not interviewed in public, only behind closed doors. That is a precarious point. So far, we have to make do with what can be deduced from the statements in lawsuits by allowance parents. Then you see that the national lawyer fully endorsed the extra-legal actions of the tax authorities.”

Pasman showed in her book that the tax authorities worked in the benefits affair was contrary to the law. Kafka under the rule of law from 2021. In the book, she analyses with surgical precision the text of the law that the tax authorities said they were following. Did it say that in the event of alleged irregularities, the allowance paid should be recovered without further ado? No, Pasman concludes, the law states that recovery can take place. And did the full allowance have to be reimbursed? That was not in the law either; it was about the overpayment received. The whole scandal, Pasman concludes, is therefore due to a misreading.”

How is it that the state attorney apparently reads the law so differently?

“So we don't know that. And without openness about that, we can't learn anything from what went wrong here either. If the government implements an illegal policy, the judge will usually end it eventually. But in the benefits scandal, good court rulings were subsequently overturned by the Council of State on appeal. So not only the state attorney misread the law, but also the Supreme Court. And then, as a victim, you can't go anywhere.”

Could it be that the state attorney wants to please the government as much as possible?

“We know that the state attorney called the far too strict explanation of the law 'pleadable'. As far as I am concerned, that means as much as: “It is not a solid legal basis, but it can be tried and we think we can express it in such a way that a judge agrees”. But then you're busy with experiments, air balloons. That does not contribute to trust in the rule of law.”

Is there also a financial interest in the national lawyer?

“In disputes between the government and a citizen, it is rare that the case is resolved mutually and without court intervention. In nine out of ten cases, it will be a procedure. In any case, large commercial law firms often opt for litigation. So the financial importance of the office undoubtedly plays a role. You can also see it among the victims of gas extraction in Groningen. Such a procedure is going to be a war of attrition, and the state attorney knows that. In addition, with the government as client, he has access to all expertise, for example about earthquake damage. The citizen, who has already been duped, is thus even further behind. His damage is only getting worse. People spend years of their lives doing such a procedure. That shouldn't be the case, right? I think that the state attorney also has a responsibility here. He should remind the state that there is a difference between the state's own interest and the public interest for which the state is also responsible. It may be in the state's interest to claim back overpaid money, but is it in the public interest that citizens then end up in years of lawsuits? I don't think so.”

The Council of State, which you say in your book is not easily proven wrong with the government, promises to pay more attention to citizens. As a lawyer, do you notice anything about this?

“I don't litigate enough to properly assess that. But a formulation such as “more attention to the citizen” is not so clear. In the rule of law, it should be about the citizen first and foremost. The government is there for citizens and not vice versa. Officials, administrators and judges themselves are also citizens, so they are ideally the ones who should put the interests of citizens first. It is precisely the state that should protect the vulnerable among citizens.”

“What I also find a problem is that former partners from Pels Rijcken & Droogleever Fortuijn are coming out to courts, such as the Council of State. The same person who first represented the government as a lawyer for decades must later rule as an administrative judge on the actions of his former client. I don't think that's clean.”

In the Meindert Fennema lecture, you will also address the question of what we can expect from the new cabinet in terms of maintaining the rule of law. Are you optimistic about that?

“No. I'm sad about that. Look at the discussion about declaring an asylum crisis and introducing an emergency law.”

According to Prime Minister Schoof, Minister Faber would have been told by the State Attorney that introducing an emergency law is possible.

“I hope there will not be another 'pleadable' advice. For such an emergency law, there must be force majeure. I think that the cabinet is confusing this force majeure with the inability of previous cabinets to arrange childcare in an orderly manner. But you shouldn't mask that inability with legal trickery, that's not the intention in a rule of law. Law is not a game.”

Pasman looks at her watch as the visitors to Artis slowly make their way to the exit. “In a rule of law, the state complies with the law,” says the lawyer. “I can't say that often enough.”

She grabs her bike helmet and says goodbye to boxing again. “I don't find it all promising,” she says. “We're living in scary times.”

Two books

Ellen Pasman (1958) has been a lawyer in Amsterdam since 1987. She specializes in administrative law, employment law, media law and tort law. From 1995 to 2000, she was one of the lawyers in the proceedings of journalist Willem Oltmans against the State of the Netherlands. That's what she wrote the book about. Old sore. Her second book, Kafka under the rule of law, is about the benefits affair.

Also read:

A repeat of the benefits scandal is imminent, judge fears

The rules that allowance parents must comply with in order to be helped are not realistic and do not pay enough attention to the human dimension. This is what the court in Amsterdam states.