A statue for Pierre Niessen wouldn't be out of place

October 1, 2023

The government and citizens are both subject to the law in our rule of law, but they are not on equal footing. “The government is potentially always an adversary, an armed gang, or even worse.”

The words are not from a crazy activist, but from the state legal scholar Tijn Kortmann. He spoke them in 2009 during his farewell lecture as professor at Radboud University in Nijmegen. Kortmann died in 2016, so even before the benefits scandal came to light, which illustrated his serious words in the most painful way.

In his last lecture, Kortmann cited the early political thinker Augustine, who wondered what the difference between a state and a gang of robbers is when the state is not subject to law. The tens of thousands of Dutch people who have borne the brunt of the allowance policy can have a say in it.

Kortmann was probably not surprised by the derailment. At the time, he called on citizens to “be wide awake and stay awake” when the government talks about the values of separate powers, democracy and the rule of law. “Because governments themselves often don't like these principles. They are often difficult and annoying.”

In his lecture, Kortmann underlined the great importance of our constitutional right to keep the government on track. It regulates the powers of the government to act and at the same time sets limits. “This is necessary, because power corrupts and a lot of power corrupts very much.”

Kortmann himself considered his words to counterbalance the tendency of coalitions to preserve power over good laws and close government control. Under the Balkenende cabinets, he observed how the coalition parties held each other in an iron grip, causing the House to act largely like a claque of power.

That coalition monism only increased under the Rutte administration, causing the House of Representatives to actually eliminate itself as a parliament and counterpower. The benefits scandal is partly due to this. The then minister Asscher (PvdA) saw in Rutte II that the law was wrong, but was afraid to address it politically with the ruthless fraud policy, because the VVD considered it its crown jewel.

They were courageous loners who rang the bell. Within the tax authorities, official Pierre Niessen and top lawyer Sandra Palmen, within the ruling coalition, the then CDA MP Omtzigt. The price they paid was that they almost died out themselves. Omtzigt was opposed in every possible way; Niessen became “on an island” with his refusal to participate in the unlawful practices.

The tax authorities let him boil in his juices and continued to act like Augustine's gang of robbers, even after Palmen's alarming 2017 memo. Kortmann avant la lettre: “All this has much less to do with government agreements than with a disturbing conformism and hanging out with those in power and chatter”. He added delicately: “You don't need to write down this last sentence. Because it does not belong to constitutional law. However, she is correct”.

The College of Kortmanns still deserves wide distribution, not only in both Houses, but also in the ministries, because he makes it clear that there are indeed limits to official loyalty. The director of the Allowances Department, Gerard Blankestijn, told the Committee of Inquiry this week that he stopped trying to mitigate the fraud policy when the House of Representatives rejected an SP motion to that effect in 2016. “If this is what politicians want, I am a loyal official. Now I think: I shouldn't have done that.”

He would have known Kortmann by his side. The professor saw nothing in a clearer definition of how far the government can go, let alone new protocols and guidelines. In his view, that would only be counterproductive. More importantly, he said, that the government employs people “who are skilled, have an eye for practice, are unbreakable and honest”. They should “mostly think, speak and write for themselves” and certainly not act like fast commercial guys who sell us public services as “products”.

The college reads as a call to return to basics, away from market forces in the public sphere. Precisely because it has so much power, he believes the government should be modest and lead by example in matters big and small. It must revalue professional knowledge and treat citizens in a timely and correct manner. In addition, a statue for Pierre Niessen in front of the Ministry of Finance would not be out of place.