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Rule of law Bart Jan van Ettekoven is quitting as chairman of the Administrative Jurisdiction Division of the Council of State. “We need to show that we are there for citizens when politics and governance are legally wrong.”

Photo: Bart Maat

At Bart Jan van Ettekoven (64), who used to be at home, they had the Avrobode, later also the VPRO Guide. Which party did his parents vote for? “That's not what they said.” At least not against their son, their only child.

He is an administrative judge, the highest in the Netherlands. The VPRO Guide he still has. “I never wanted or dared to cancel it. The VPRO must support you. That's why I'm also a member, or what do you call it, of The Correspondent, because damn, what beautiful and serious productions they make there.” NRC he also reads and when he wakes up at a quarter past five, half past six in the morning and can't sleep anymore — “pompompom, what am I going to do” — he listens to podcasts. Serious podcasts about climate, politics, science. In short, Geert Wilders would know which box he would push Bart Jan van Ettekoven into.

Until Christmas, he was chairman of the Administrative Jurisdiction Division of the Council of State. This is the judicial board that citizens can go to if they have a dispute with the government. Governments that have a dispute among themselves can also go there. The Department makes ten thousand statements a year and they are about: dormers, bats, evictions, childcare benefits, nitrogen, gas extraction, asylum seekers. A week and a half ago, Bart Jan van Ettekoven said goodbye to the Department. In March, he will go to the Common Court of Justice in Curaçao.

This conversation, in his office, which is already half demolished, is about the rule of law under Wilders and Omtzigt, although he won't mention their names once. But first, about the boy who once was Bart Jan, the long-haired boy who played in the school band, at the Baarnsch Lyceum, and who wanted to go to the conservatory after his graduation. Music, light music, jazz and pop, it was all for him. His father, a dealer in paintings, didn't really like that and the director of the conservatory, in Hilversum, thought it wiser if Bart Jan started doing something else first. That's how it became law, in Utrecht. “After two years, I thought: get something, I'll do the conservatory next door.”

His career started in the theater with Tineke Schouten and Henk Elsink. He was a keyboard player in the rock opera I'm Jan Cremer, until it went bankrupt in 1985. He played in a tour of MFÖ, Turkey's most famous pop group at the time. “One big party in terms of girls screaming, but in business, it was a tragedy. I thought: am I in the mood for this? Want to let all the misery around it ruin my love for music?”

And you also mean alcohol and drugs?

“I had quite a beer, but with me, there are limits. I played with David Hollestelle, guitarist at Herman Brood, and he really was such a boy, I mean, we were friends musically, but I didn't like that lifestyle. At a good moment, I thought about what my father said: you also have a law degree.”

And so he became an appeals officer at the Municipal Administration Office in Zwolle. Then a judge at the court in Amsterdam. Vice President. Senior content advisor at the Central Netherlands District Court. Professor of Constitutional and Administrative Law in Amsterdam. In 2014, he joined the Council of State, where he had also worked from 2002 to 2007. In 2017, he became chairman.

What assignment did you give yourself?

“Trying to follow in the footsteps of my predecessor, Jaap Polak. Take further steps in legal development.”

Sounds boring.

“Not boring, because relations in the trias politica had been changing for some time by then.” Trias politica: the separation between legislative, executive and judicial powers. Legislative: Parliament and Government. Executive: The Government. Together: politics.

How did those relationships change?

“Politics let it go eh..., I don't want to say: fail more often. But yes: politics set the course less sharply. That started in 2010, 2012. And if politics sets the course less sharply and makes unclear laws, and then the administration (the officials at all levels of government) does not provide the counterweight it should provide, then eh...”

Then you get a benefits affair?

“Then the administrative court should more often assess whether government decisions can be upheld. In 2015, my predecessor Ernst Hirsch Ballin (also Minister of Justice three times) wrote an exceptionally clever analysis about this. Be alert! Wake up! The role of the administrative judge is changing. We need to reflect. Since then, we have become more critical of the government.”

Didn't the administrative court almost always automatically take the side of the government in citizens' cases against the government?

CV

Bart Jan van Ettekoven (Hilversum, 1959) studied law in Utrecht and also attended the Hilversum Conservatory.

He started his career as professional musician, but after a few years, he chose the judiciary anyway.

In 2014, he became a councilor of state (judge) at the Council of State for the second time. Since May 2017, he has been chairman of the Department of Administrative Law.

In March 2024, he will go to the Curaçao Court of Justice. At the Council of State, he is succeeded by Rosa Uylenburg.

He is married and has two daughters.

“No, but I did see a development. This was partly due to the lessons we learned from the childcare allowance cases. The law was tough, the implementation (by the tax authorities) was rigid, and we did not take enough account of how that worked out for citizens. Afterwards, we said: we let that go on for too long. We apologised for that. And another thing: we need to better explain to citizens what we do and what we are doing. We have taken quite a few steps towards that, we think. Press releases, social media, animations on the website, we're thinking about it a lot more.”

Do people know what the Council of State is?

He laughs. “There is a funny podcast where the creators take to the streets and ask people if the Council of State tells them anything. Huh? Council of State? Does it still exist?”

People can walk in here straight away, they are barely controlled.

“A current topic, because is that still possible? All courthouses in the Netherlands have security; it can explode in criminal or family cases. In Amsterdam, we had a display case with all the confiscated items, knives, stilettos, cans of pepper spray, tear gas, so much that you think: what? We don't control what people bring here. We also don't ask for a passport. But society is becoming more restless. We are now also dealing with student cases (against a decision by the educational institution about a grade or diploma), some of which are very emotional. A few months ago, a student in Rotterdam killed three people and that does something to the sense of security among the people here. Incidentally, we use a mobile scan line. Sometimes we put security guards in the room. The discussion now is: should that become permanent?”

And do your best to regain citizens' trust.

“Part of the citizens. In polls among citizens into trust in the judiciary, we are still doing quite well.”

The PVV has gone well over 40 since the elections.

Looks like he didn't know that yet. “Percent? Seats?” He is silent for a moment. “We need to show that we are there for citizens when politics and governance are legally wrong. We have said goodbye to the restrained review. We look at whether human or fundamental rights are at stake and what the impact of decisions is for citizens. One case is already a classic: Harderwijk, February 2, 2022. The mayor had closed a house because large amounts of hard drugs were found. We found that the mayor had asked too little about what eviction meant for the tenant and his partly underage children. They were in danger of being blacklisted. They would not be able to get another home anywhere else. We have drawn a line through his decision. With the mayor's logical response: hell, it should remain possible to run this country.”

In this way, you attract more power.

“The relationships have changed and that is also a result of the childcare allowance cases. The laws were so strict that they left no room for a weighing of interests. In the end, we were no longer able to account for the results. This raised the question whether the administrative court should not always be able to intervene if the application of the law is so unfair. There is now a bill to regulate that. There is a lot of debate about it, because the effect of sacrificing predictability, legal certainty and equality, uh, is a big word, but sacrificing it in favor of individual justice. And yes, you are thereby shifting part of the responsibility in the triassic to the judiciary.”

The benefits affair has also meant that eleven parties in the House of Representatives believe that the judge should be empowered to review laws against the Constitution.

“What Femke Halsema already addressed in 2002. That discussion is very topical again; in fact, the whole subject of the rule of law is very topical, and I welcome that, if it is dealt with properly. The Supreme Court, the Council for the Judiciary and the Department of Administrative Jurisdiction are united: we are in favour of judges having the authority to review laws against the Constitution. But also that judges may review laws against the principle of proportionality, which says that a decision should not be unreasonable for the citizen seeking justice. It's good if a court judge can already step in and say: I'm leaving this legal rule out of effect, because the result is so unfair that it goes beyond all borders. That's the most important thing for citizens.”

Pieter Omtzigt wants a constitutional court.

“A completely different tool that tests laws for legality. It depends a bit on how you arrange it exactly. In many countries, the highest judges are obliged to refer constitutional questions to the constitutional court, leading to a massive extension of proceedings, to endless discussions. When is a question constitutional? Who is going to do that? Quite apart from the fact that the members of the court are often appointed by politicians. The Supreme Court, the Council for the Judiciary and the Department of Administrative Jurisdiction do not think it serves citizens' interests better.”

Do you foresee difficult times for the trias politician?

“It all depends on what the national government will look like. Let us hope that politicians will succeed in achieving a government. A government that will consider what it thinks is wise and translates that into legislation. Those bills then first come to the Advisory Department of the Council of State for advice. And the concrete application of those laws may come to the table later at the Department of Administrative Justice. We will simply apply the law on a case-by-case basis. National law, international law, EU law. If it's not legal, we'll say so.”

That does sound like a bit of concern.

“Well, we are already dealing with measures that we have to say: this is not legal. I mention the construction exemption for nitrogen, which we said does not comply with European nature conservation law. I mention the family travel restriction for family members of status holders who were interested in politics. We said: that rule is contrary to Dutch and European law.”

Political and social resistance to your statements may become more fierce.

“Yes.”

Are you worried?

He is quiet for a while again. “As Bart Jan, as a citizen, maybe yes. I read newspapers, I watch TV and I think, damn it, guys. Global warming, the depletion of the planet, the geopolitical situation, Gaza, Ukraine, Sudan, how it divides the world, is terrible.”

And how it divides the Netherlands.

“People are allowed to express themselves and in the last elections, that led to this, for many, amazing result. But we are a democratic rule of law. Whatever the legislator comes up with, it will not fall through the lower limit of the rules of law.”

Isn't democracy also capable of abolishing itself?

“I was at a meeting chaired by Polish judge and former prime minister Hanna Suchocka. She said: you can see the rule of law evaporate before your eyes. Rules of law that you thought were neutral, she said, can be used in such a way that they are in the opposite. You need to be extremely alert to that.”

How could that happen in the Netherlands?

“Then I first need to explain something about our fundamental rights system. Chapter 1 of our Constitution contains classic fundamental rights, such as freedom of expression, right to privacy and the prohibition of discrimination. And some fundamental social rights, such as the right to housing, care and education. The Constitution itself makes it possible for these fundamental rights to be limited by law, through a law passed by the House of Representatives and the Senate. So we have a system of fundamental rights that you can infringe with a law. So yes, we have freedom of speech, but we can legally regulate it so that citizens cannot make use of it. Nicely done, in accordance with the rules. But not okay. Let's make sure we don't sink to the bottom of international law.”

A version of this article also appeared in the newspaper of December 30, 2023.