—Maartje De Visser, Singapore Management University, Yong Pung How School of Law
[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]
On 1 July 2022, the Dutch government, acting through its ministers for the Interior and Legal Protection, sent a letter to parliament announcing its intention to move forward with the introduction of constitutional review of statutes by the courts. At present, such review is not possible in the Netherlands: on the contrary, the country’s constitution has contained an explicit ban on judicial scrutiny of legislation since 1848. In its current guise, Article 120 declares that “The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.” This prohibition has been read as preventing any assessment of the substantive conformity of laws as well as the manner of their adoption with the formal constitution, while unwritten constitutional principles are similarly unavailable as a yardstick to measure statutes against. (To be clear, courts can, and do, assess legal norms below the rank of statute for their constitutionality, while they are also competent to verify the compatibility of such norms as well as of statutes with directly effective provisions of international law.)
The letter is intended to function as the precursor to a proposal to formally amend Article 120, which – if successful – will have been a long time in the making. There have been repeated suggestions to remove or qualify the ban in Article 120, notably from the late 1960s onwards. The most promising of these consisted of a 2002 private member bill that cleared the first stage of the Dutch constitutional amendment procedure but ended up languishing in political purgatory before eventually being withdrawn. The fact that the classic arguments against judicial scrutiny – legal certainty, the separation of powers, and the countermajoritarian objection – have long carried the day is often explained with reference to the traditional consociational character of the Dutch political system and the constitution’s position at the periphery of public discourse, with the consequence that it lacked salience as a basis for review.
What is more, the traditional system of relying on extra-judicial pre-enactment constitutional scrutiny, which is mainly carried out by a Council of State (acting as the government’s chief independent legal advisor) and the upper house of the country’s bicameral parliament, could be deemed to have functioned in a largely satisfactory manner. Views have gradually changed, however. Notably, the letter identifies the need for citizens to enjoy better legal protection vis-à-vis the government as a principal rationale for the introduction of judicial scrutiny. The importance of such protection starkly came to the fore in the childcare allowances scandal that I wrote about in an earlier blogpost, during which the courts were found to have been inadequately attentive to the need to safeguard the rights of thousands of citizens in their dealings with the tax authorities. In addition, the letter recognizes the value of enhancing the prominence that the constitution enjoys in social life. This, it can be readily recognized, is important for a host of reasons, including to ensure that people are actually aware of what their supreme law authorizes, commands or prohibits so that they can make fuller use of the rights granted or better hold public officials to account for any unconstitutional behavior, thus strengthening the rule of law.
The proposal: a circumscribed role for the courts
The government’s letter surveys the various options on the table when fashioning a model of constitutional adjudication to arrive at a set of preferred features for the proposed new model. First, and in contrast to what the royal commission tasked with studying ways to improve the functioning of the parliamentary system had recommended, no separate constitutional court is envisaged. The plan to grant review powers to all judges confirms that what has at times been referred to as the ‘European model’ of constitutional adjudication is not, in fact, embraced by every country on the European continent – amongst others Sweden, Denmark, and Finland similarly opt for decentralized constitutional adjudication. Secondly, and most pertinently, only certain constitutional provisions would be available as standards for review, viz. those that set out classic civil and political rights and liberties. According to the government, allowing judges to check statutes for conformity with institutional provisions in the constitution would tend to politicize constitutional adjudication and interfere with the distinct responsibility of the political branches to give effect to that document. There is something to be said for keeping the courts out of what could be ‘megapolitical’ cases, including to safeguard their legitimacy. More problematic, however, is the exclusion of social rights as a yardstick for review, which is justified with an appeal to the difficulty for courts to determine whether sufficient means have been allocated for their realization. This reasoning seems based on an outdated distinction between negative and positive obligations, which is difficult to draw in practice as many sources, including the case law of the European Convention on Human Rights to which the Netherlands is a party, demonstrate.
Opportunities for non-judicial dialogue and designing pre-enactment review
It should be clear that the proposed Dutch arrangements do not envisage a complete overhaul of the current arrangements for constitutional review. There will accordingly continue to be a need for meaningful pre-enactment scrutiny, especially for those provisions that remain beyond the courts’ purview. This is not unique to the Netherlands; on the contrary, such scrutiny should be a central feature of the lawmaking process in every constitutional democracy. This reality means that there exists what I would call composite constitutional guardianship: multiple institutions sharing responsibility for determining what the constitution means – legislatures, governments, non-partisan advisory bodies, ombudsmen, human rights institutions etc. – who will need to exchange views and may (dis)agree with one another in this regard. In particular, the executive and advisory bodies may actively participate in such exchanges and their participation may be formalized or even mandatory.
Thus, in the Netherlands for instance the Council of State must be consulted on bills, draft orders in council as well as proposals for the approval of treaties, with the government being in turn required to officially respond to the Council of State’s opinion in the explanatory memorandum that accompanies a bill when it is sent to parliament. As a matter of law and/or practice, then, the institutional configurations for constitutional dialogues may extend far beyond the legislature-court relationship that is often taken as the paradigm of such dialogues in the literature. The reality of composite constitutional guardianship also nudges us to think about the appropriate design of, amongst others, pre-enactment scrutiny. Should opinions by non-partisan advisory bodies be published? Should there be opportunities for public participation in such processes or are these outweighed by time constraints and confidentiality concerns? Should there be a duty to give reasons when heads of state veto legislation on constitutional grounds? And, most saliently for the Netherlands: should there be a dedicated parliamentary committee for constitutional scrutiny? Perhaps surprisingly given its long history of extra-judicial enforcement of the constitution, such a committee does not currently exist in the Netherlands – in marked contrast to other countries that similarly place a premium on political constitutional enforcement, like Sweden, Finland, and the United Kingdom. While a proposal to that effect was presented to the Dutch lower house in 2017, this effort has yet to bear fruit. It is to be hoped that the proposed turn to the courts will also incentivize Dutch political institutions to look more closely at possible institutional or procedural innovations to improve their engagement with the constitution, especially in anticipation of that document capturing the public imagination as envisaged.
Suggested citation: Maartje De Visser, Will the Netherlands Finally Embrace Constitutional Adjudication? Int’l J. Const. L. Blog, Sept. 28, 2022, at: http://www.iconnectblog.com/2022/09/will-the-netherlands-finally-embrace-constitutional-adjudication/
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