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The Venice Commission and Transnational Constitutional Advice: Relevance for Mature Democracies

Maartje De Visser, Singapore Management University, Yong Pung How School of Law

[Editor’s Note: This is one of our biweekly ICONnect columns.]

On 10 January, the new Dutch government was sworn in, almost a year after its predecessor stepped down. The previous government fell over gross maladministration of a system for childcare allowances, with thousands of parents being unjustifiably labelled as tax defrauders and charged to repay large sums of money over minor mistakes in paperwork. During the parliamentary debate over the scandal, several motions were adopted that sought to evaluate the functioning of the Rule of Law in the Netherlands and identify suitable reforms to prevent similar incidents going forward. One of these motions proposed that the Venice Commission should be asked for an opinion regarding possible “solutions to repair [the system of] power and countervailing power” as well as improving the experience of citizens with regard to administrative justice. The motion was carried by an overwhelming majority, with full support of coalition MPs and only the far-right faction (PVV) voting against the referral. This was an historic occasion: never before had the Netherlands sought to engage the Venice Commission for advice, though the possibility to do so has existed for several decades.

For those unfamiliar with this body: the Venice Commission is the formal advisory body of the Council of Europe. It was set up in 1990 to render assistance to the post-communist states in Central and Eastern Europe in the redesign of their constitutional arrangements. Its membership today stands at 62, and includes several states located outside of Europe – like Canada, Chile, Israel, Tunisia, and the US. Each of these nominates two individuals to serve on the Commission, who can act amongst others as drafters (“rapporteurs”) of opinions before their adoption by the plenary. The 27-page Dutch opinion was prepared by rapporteurs from Ireland, France, Norway, and Croatia. While holding that ultimately “the rule of law mechanisms in the Netherlands did work” (a conclusion that seems milder than that professed by domestic reports regarding the scandal), the opinion also identifies a wide range of pertinent reforms that the Dutch authorities ought to take as serious “food for thought” to improve the functioning of the rule of law in the country.

Designing safeguards against overly rigid, arbitrary or abusive exercises of executive power

At its core, the Dutch scandal revolved around the adoption of a rigid and complex statutory framework that was moreover applied in a “ruthless” manner by the competent administrative authorities such that citizens were faced with severe punitive consequences, while the courts largely acquiesced in the executive’s understanding of the law. Importantly, the Dutch authorities were largely motivated by prima facie defensible public interest concerns, viz. combatting fraud in the disbursement of State monies, and promoting efficiency in public administration. Such aims are clearly not unique to the Netherlands. On the contrary, it is a hallmark of many developed countries that statutory schemes are increasingly difficult to understand and navigate, while parliamentary and judicial oversight may not be particularly rigorous, especially if quasi-independent administrative agencies oversee implementation matters. While one would hope that the magnitude of the childcare allowances scandal is not replicated elsewhere, the Netherlands will not be the only country to face rule of law challenges in the design and execution of administrative legislation. In this regard, the Venice Commission opinion makes for interesting reading for a non-Dutch audience, as it contains several suggestions on how to design safeguards against overly rigid, arbitrary or abusive exercises of executive power.

The opinion firstly notes the importance of mechanisms to enable systematic and thorough ex ante control of Bills for compliance with rule of law standards, preferably in the form of a special parliamentary committee. Such non-partisan committees exist, inter alia, in Finland and the United Kingdom, and accounts suggest that they are well-regarded and effective as one of the first lines of constitutional defense. Constitutional preview should be complemented by ex post checks and here the Venice Commission rightfully draws attention to the role of opposition MPs, suggesting that they be empowered to trigger parliamentary investigations and organize hearings to hold the executive to account. More far-reaching is the suggestion to set up a dedicated standing committee for executive oversight, with the logic being that such a committee should incentivize Parliament to better discharge its control function, also by earmarking sufficient resources for this key task. In recognition of the growing tendency to rely on AI for administrative decision-making, the Venice Commission further makes the sensible suggestion that the data used to train AI systems should be systematically examined to detect any bias that may have characterized past human decisions before such data is fed into an AI system. Finally, channels could be created to allow the judiciary to alert the other branches to issues with the implementation or interpretation of statutory schemes, leveraging its practical experience with the operation of legislation on the ground.

Transnational advice for the “old guard”  

Beyond the generally useful advice contained therein, the Dutch opinion also warrants attention as it should cause us to reflect on the addressees and focus of transnational advice. While availability of external assistance to think through constitutional matters has rapidly become ubiquitous, there is a tendency to see such a practice as a form of what I would call “constitutional-law-and-development”. The typical beneficiaries that come to mind in discussions about transnational advice are countries that have recently embraced or returned to democracy, with as typical object of advice the (re-)making of a constitutional document. This can, for example, be seen in the UN Secretary General Guidance Note on Constitutional Assistance. Mature, or established democracies, do not usually feature, or are typically thought of as advice-givers rather than recipients. This is perhaps not surprising. After all, there is arguably a greater need to ensure that younger democracies get their constitutional designs right, while resource constraints – both in terms of expertise and budget – may be more pressing for countries that fall into this category. Empirically speaking, the bulk of transnational advice is moreover directed at younger democracies: well over 90 per cent of the Venice Commission’s opinions, for instance, concern such democracies. One can ask, however, whether this is a desirable state of affairs. I would suggest that external guidance, notably by independent expert bodies like the Venice Commission, and the study thereof is also valuable in relation to mature democracies. The classic comparative argument that consulting external sources can provide inspiration and spur creative thinking about alternative solutions seems relevant regardless of the vintage of a country’s democracy, especially for novel issues. An external perspective can moreover help elucidate blind spots that may escape notice from an exclusively domestic perspective, for instance due to incremental corrosive changes to laws, customs or constitutional culture. Indeed, the nature of the challenges faced by mature democracies will more often relate to matters of constitution-keeping rather than constitution-making, thereby also holding out the prospect of developing transnational standards or good practices for the enduring health of constitutional democracies. This is, in fact, what the Venice Commission has sought to do with the Dutch opinion as well as some others that have been directed at mature democracies. Looking ahead, it would be good to see a stronger engagement of the Venice Commission with such democracies, with the latter in turn showcasing a greater willingness to seek and listen to its guidance or that of similar bodies. A development along these lines could bode well for the legitimacy and effectiveness of sensible, expert transnational advice more generally.

Suggested citation: Maartje De Visser, The Venice Commission and Transnational Constitutional Advice: Relevance for Mature Democracies, Int’l J. Const. L. Blog, Feb. 2, 2022, at: http://www.iconnectblog.com/2022/02/the-venice-commission-and-transnational-constitutional-advice-relevance-for-mature-democracies/

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Published on February 2, 2022
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