With the provincial elections coming up, the Dutch Legislature this week discussed another important and long discussed topic in Dutch politics. The Dutch parliament for the second time reads the bill that would make judicial constitutional review in the Netherlands possible with regard to certain named constitutional provisions detailing constitutional rights. A bill first introduced by former Second Chamber member Halsema in 2002.
Since 1848 the Constitution of the Netherlands (Grondwet) prohibits a judicial review of laws and treaties against the Constitution. The Netherlands has a system of parliamentary sovereignty (or legislative supremacy), which means that is it not possible for any Dutch court to test the validity of legislative acts with the Constitution. This Dutch constitutional tradition significantly differs from that of other countries in Europe and beyond.
The stranger in Europe
The Dutch Constitution was adopted in 1814 and was revised in 1848 with the current prohibition of judicial constitutional review, despite warnings of Dutch statesman J.R. Thorbecke.
“The constitutionality of Acts of Parliament and treaties shall not be reviewed by courts”
This strong focus placed on legislative supremacy raises important questions, and is at present being reconsidered by the Dutch Legislature after the 2002 proposal to amend the Dutch Constitution. The aim of the proposal was to increase the protection of individuals as a task for all courts of the country at all levels. The proposal was first tabled by Halsema and is now taken over by her colleague Van Tongeren (an opposition member of the Dutch Legislature). In order to amend the Dutch Constitution the proposal must have two readings and needs a two-third majority for the second reading in both houses. The Halsema proposal does not stand-alone. The National Convention supports the idea of changing the force of section 120 and also recommends the establishment of a Constitutional Court in the Netherlands.
This being said does not mean that there is no judicial fundamental rights review in the Netherlands at the moment. The judiciary is able to review laws against the equivalents of these constitutional rights that are contained in European and international law via the articles 93 en 94 of the Dutch Constitution. In this regard the fundamental rights laid down in for example the European Convention of Human Rights and the International Covenant on Civil and Political Rights are very important.
But how about the constitutional traditions and the judicial role in other countries?
Constitutional review by the judiciary
Constitutional review by the judiciary has become a widely followed approach since the decision by the United States Supreme Court in Marbury v. Madison in 1803. Chief Justice Marshall who called the US Constitution a ‘living instrument’ inspired many constitution makers. But also after the Second World War and the collapse of state socialism in 1989, many countries created a new Constitution and Constitutional Court to limit political power (a globalizing constitutionalism).
It is important to note that there are two types of judicial review in constitutional states: a concentrated and diffused system. A concentrated system of judicial review refers to a form of review where a single court has the power to test the validity of legislative acts. The German model is an example of a concentrated system. In Germany only the Constitutional Court (Bundesverfassungsgericht) has the power to declare Acts of Parliament invalid if there is inconsistency with the Constitution. A diffused system on the other hand refers to a form of judicial review in which all courts of the country at all levels have authority to declare invalid any legislative enactment if that declaration is necessary in order to decide the case before the court. The United States system of judicial review is diffused.
Could a type of judicial constitutional review work in the Netherlands?
(Judicial) Constitutional review in the Netherlands
The choice for judicial constitutional review can be based on different reasons. The most important reasons to adopt judicial constitutional review are for example: historical experiences, it ensures that the legislature does not overstep its boundaries, and it also increases the protection of individuals. As mentioned earlier, in the Netherlands the judiciary does not have a say in the constitutionality of legislation, but may refer to European and international law. The current system of constitutional review (where there is no role for the judiciary) is considered largely satisfactory. This is because of the role played by the Council of State (Raad van State), the independent advisor to the government and Parliament, and the role of the Dutch Senate responsible for checking the quality of bills.
It is not easy to give arguments for or against constitutional review by the judiciary. As simply put by Gerhard van der Schyff, which institutions are entrusted with the power of constitutional review is a question that has different answers for different countries. And because of the two-third majority that is needed to amend the Dutch Constitution, there is very little chance the judges will be able to test the constitutionality of legislation in the Netherlands in the near future. But to illustrate this strange, maybe satisfactory constitutional tradition in the Netherlands I would like to end my blog by quoting Ms. Leijten in Leiden Law Blog:
“So you guys have a constitution, but no constitutional court? And acts of parliament cannot be tested against the constitution? No, we don’t. No, they can’t.”
A selection of relevant publications from the Peace Palace Library collection
- Adams, M. and G. van der Schyff, "Constitutional Review by the Judiciary in the Netherlands", Zeitschrift für ausländisches öffentliches Recht, 66 (2006), pp. 399-413.
- Brinkel, S., Why Constitutional Review: A Comparative Study between the Netherlands and South Africa, Master thesis 2012.
- Poorter, de J.C.A., "Constitutional Review in the Netherlands: A Joint Responsibility", Utrecht Law Review, 9 (2013), No. 2, pp. 89-102.
- Schyff, G., "Constitutional Review by the Judiciary in the Netherlands: A Bridge too Far", German Law Journal, 11 (2010), No. 2, pp. 260-274.
- Uzman, J., T. Barkhuysen and M.L. van Emmerik, "The Dutch Supreme Court: A Reluctant Positive Legislator?", Electronic Journal of Comparative Law, 14 (2010), No. 3.
- Visser, de M., Constitutional Review in Europe: A Comparative Analysis, Oxford, Portland, Hart Publishing, 2014.