Amending the (Dutch) Constitution?

Amending the (Dutch) Constitution? Expert Meeting on National Constitutions and Globalisation Background materials on the place of the Constitution in the Dutch legal system The Dutch Legal System: A Monistic System The historical sources of the Dutch legal system are indigenous Dutch laws, Jus commune, natural law, and most notably, French law. Following the imposition of French law in 1811, after annexation by Napoleon s empire, French principles and institutions became solidly rooted in the Dutch legal system. They were adopted into the original Dutch Constitution of 1814 (after regaining independence), into the Dutch legislation even after the French codes were abolished, 1 and they influenced the judicial hierarchy and its system of cassation. 2 Indeed, the Dutch legal system is considered to be of the civil law French family. In the 20 th century, however, the Dutch legal system was more influenced by the German legal tradition, as can be clearly noticed in the 1992 New Dutch Civil Code. Finally, since the Dutch legal system is an open monistic one, the substance of Dutch law has been very much influenced by international law. The Dutch Constitution does not specify the competent organ to enter into treaties, though it can be inferred that it is the government; which indeed does so in practice. Likewise, Article 92 authorizes the transfer of legislative, executive and judicial powers to international organizations pursuant to a treaty, even departing from the Constitution. Once the government has entered into a treaty, it must seek approval from the Dutch Parliament the procedure and the exceptions for such approval are provided for by the Approval and Publication of Treaties Act. The required approval is either tacit (treaty is accepted unless objected to by at least one fifth of members of both chambers of Parliament) or explicit (requiring an Act of Parliament). Unusual in national Constitutions, Article 91 of the Dutch Constitution provides that treaties which conflict with the Constitution may nevertheless be entered into by the State, provided that the treaty has been approved by an Act of Parliament with a 2/3 majority. Since it is a monistic system, the treaty becomes part of Dutch national law once the approval has been granted. Article 120 of the Constitution provides that courts may not review the constitutionality of treaties (nor to review national Dutch laws; to be elaborated upon below). 3 The Nature of the Dutch Constitution It is noticeable that the Dutch Constitution is relatively bereft of ideological references in comparison with other Constitutions of democratic countries. In that sense, the Dutch Constitution is sometimes criticised as being somewhat of a dry legal document. The paradigm example for this is the absence of a preamble, which normally might contain an unequivocal concept of the foundation of government power, inalienable fundamental values, and references to other ideological notions. 4 1 Chorus, Gerver, Hondius, p. 7-8 2 Chorus, Gerver, Hondius, p. 69 3 Kortmann & Bovend Eert, 163-167. 4 Kortmann & Bovend Eert, 21-23. 1

Additionally, and in relation to the previous point, it is often said that the Dutch Constitution has little driving force, and that it does not retain the centrality of public discourse as in other Western countries. There are a number of reasons which might suggest such claim. First, the Constitution does not prevail over Acts of Parliament. Second, Article 140 of the Constitution provides that existing Acts, regulations and decrees which are in conflict with a constitutional amendment, shall remain in force until they are modified in accordance with the Constitution. Third, the procedure for Amending the Constitution is rather more flexible than that of other Western constitutions, and consists of the following: An amendment first has to pass both Houses of Parliament; next, once the House of Representatives has been dissolved and re-elected, it must adopt the amendment by a two-thirds majority. Indeed, the Constitution was amended 19 times between 1814 and 2002. Arguably, these constitutional amendments have rarely been central issues during electoral campaigns and often passed unnoticed by the general public. 5 Fourth, international law prevails over the Constitution. These issues arguably illustrate a lack of a Dutch identity within the Constitution and, moreover, its general lack of predominance. 6 Constitutional Interpretation and Judicial Review There is no single body which has competence to give a final interpretation of constitutional rules. Article 120 of the Constitution, dating back to 1848, provides that neither the judiciary nor any other body are authorized to review Acts of Parliament against the Constitution. Even if a court considers an Act to be in clear violation of the Constitution, it is not authorized to declare it non-binding. Thus, the interpretation of the Constitution as performed by Parliament is binding upon both the administration and the judiciary. This Dutch version of parliamentary sovereignty is coupled with the fact that there is neither a constitutional court nor one single court at highest instance. The Hoge Raad has jurisdiction over civil, criminal and tax matters, while the Council of State is the country s highest administrative court with general jurisdiction. Thus, their interpretation of constitutional law may differ. 7 However, judicial review is not entirely absent from the Dutch constitutional framework and legal system, as there are three notable exceptions. First, a hierarchy of legal rules exists and all Dutch courts are competent to test lower legal rules against higher ones and to declare the former to be incompatible with the latter. Second, they can assess rules against EU law, part of which, by virtue of its supra-national character, forms part of the national system of law. Third, and most notably, judicial review may be performed against international treaties. As mentioned above, the Dutch legal system is a monist system, and thus an international treaty automatically becomes part on Dutch national law without transformation needed. Article 94 provides a rule for situations in which the application of a national statutory provision (including a constitutional provision) conflicts with a treaty provision or a decision of an international organization which are binding on all persons. The latter requirement is provided for in Article 93 of the Constitution. 5 Chorus, Gerver, Hondius, p. 302-303 6 Indeed, these issues were included in the mandate of the State Commission for the Review of the Constitution, as it was instructed to examine the accessibility and the importance of the Constitution for the Dutch public, and the inclusion of a preamble (including a concrete text proposal in case the Commission recommended such inclusion). 7 Kortmann & Bovend Eert, 122-126. 2

Though it does not specify which body shall decide whether a certain provision is indeed binding on all persons, it is widely agreed that the task is left for the judiciary. In cases where such conflict exists, the court and other officials must set aside the national provision. In practice, the court may often not apply the solution itself (namely, invalidating the violating rule), but rather refer the question to the legislature, observing that the solution lies outside the competence of the court. In recent years there has been a remarkable increase in the number of occasions in which national provisions were subject to review and thus struck down on the grounds of their incompatibility with treaty provision which are binding on all persons. In light of these three exceptions, the current restriction on constitutional judicial review, as provided for in Article 120 of the Constitution, is often regarded as an anomaly. Indeed, it has been subject to increasing criticism. A common suggestion is that, at the very minimum, judicial review against provisions of the Constitution which are binding on all persons should be allowed. 8 Fundamental Rights within the Dutch Constitutional Framework Fundamental rights in Dutch constitutional law are derived from three different legal sources. First, fundamental rights and liberties are enumerated within Chapter 1 of the Constitution (Articles 1-23). Articles 1-17 are classic fundamental rights, whereas Articles 18-23 are social and economic rights which are not enforceable in law and are considered as government objectives and guidance for the legislature. 9 Beyond Chapter 1 of the Constitution, several Articles further provide for fundamental rights such as Article 114 which prohibits the imposition of the death penalty. Second, rights provided by EU law and ECJ rulings, since EU law is automatically part of Dutch law. Third, the Netherlands being an open monist system, rights provided for by international (human rights) treaties are incorporated in national law without transformation needed. 10 As mentioned above, such rights may be invoked in courts insofar as they contain provisions which are binding on all persons. 11 The following rights are enumerated in the Constitution: The principle of equality and the prohibition against discrimination (Art. 1 and Art. 3); the right to leave the country (Art. 2); the right to vote (Art. 4); the right to petition (Art. 5); freedom of religion (Art. 6); freedom of expression (Art. 7); freedom of association (Art. 8); freedom to hold meetings and demonstrations (Art. 9); the right to privacy (Art. 10); the right to personal integrity (Art. 11); the right to privacy one s home (Art. 12); the right to privacy secrecy of communication (Art. 13); the protection from expropriation without due process of law and compensation (Art. 14); the right to liberty and the habeas corpus principle (Art. 15); prohibition against retrospective legislation in the area of substantive penal law (Art. 16); the right to appeal to a judicial procedure provided for in law (Art. 17); the right to be represented in legal and administrative proceedings (Art. 18); a sentence entailing deprivation of liberty may only be imposed by the judiciary (Art. 113); capital punishment may not be imposed (Art. 114); the right to primary education (Art. 23); social-economical rights (Art. 19-23). 8 Kortmann & Bovend Eert, 127, 163-166 9 For example: Article 21 provides for the right to a healthy environment in the following manner: It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment. 10 The most important international human rights treaties in this context are: ECPR, ICCPR, ICESC. 11 Kortmann & Bovend Eert, 137-140 3

Limitation Clauses of Constitutional Fundamental Rights Each provision of a fundamental right in the Constitution is comprised of a description of the right and of the possible limitations to it. A limitation is lawful only if it conforms to the limitation clause. There are three kinds of limitation clauses: competence, legitimate aims, and procedural rules. Competence clauses restrict limitations of fundamental rights based on the competence of the acting body. Some rights, if taken literally, cannot be limited regardless of the acting body (such as the prohibition against the imposition of the death penalty). In other instances, a right may be limited only if the legislature has imposed the limitation. In third instances, an Act of Parliament may delegate such power to a third body (such as a regulatory body). Clauses specifying strict legitimate aims for the limitation of the relevant right are subject to the interpretation of the relevant authority which imposes the restrictions, and courts indeed tend to show judicial restraint. Procedural rules clauses provide certain procedural requirements under which a limitation may be imposed. For instance, Article 12 provides that entry into one s home without his consent (violation of the right to privacy), requires prior identification, notice of purpose, and written report of the entry to be handed to the occupant. Relationship between Constitutional and International Fundamental Rights Since courts have no competence to review Acts of Parliament, constitutional fundamental rights are mainly implemented and protected by the legislature. In contrast, Dutch case law on international fundamental rights is much more significant since such judicial review does exist. It is particularly significant where an international right has no equivalent in the Constitution, such as: the right to protection of family life, 12 and the right to dignity. Events leading to the establishment of the present State Commission for the Review of the Constitution Coalition accord 2007 Cabinet Balkenende IV Following the general elections held in November 2006, on February 7, 2007 the political parties CDA (Christian Democratic Appeal), PvdA (Labour) and CU (Christian Union), reached a coalition agreement and formed the cabinet known as Balkenende IV, named after its Prime Minister. Among other things, this cabinet unfolded its plans regarding the Constitution, of which the last complete review came into force approximately 25 earlier. The coalition accord expressed the intention to establish a State Commission for the Review of the Constitution (hereafter: the Commission). The Coalition Accord stated that the Commission will bring out an opinion regarding, among other things: The accessibility and the importance of the Constitution for citizens; The inclusion of a preamble, including a concrete text proposal, unless the Commission would advise the Cabinet not to do so; The relationship between rights enshrined in de Constitution and rights deriving from international treaties, including for example the right to a fair trial and the right to life; 13 12 Chorus, Gerver, HOndius, p. 306-307 13 http://www.regering.nl/het_kabinet/regeerakkoord#internelink1 4

The policy program of Cabinet Balkenende IV Four months after the Coalition Accord was reached the policy program of Cabinet Balkenende IV, named Working together, living together was issued. 14 This policy program consists of the concrete further details of the coalition agreement. In Article 67 of this program the Cabinet unfolded its intentions regarding the strengthening of civic formation and of the Constitution. This article also mentioned the government s intention to establish a state commission in the autumn of 2008, to render an advice on strengthening the Constitution. Council of State Advice On January 17, 2008 the Ministers of Interior and Kingdom Relations and of Justice requested the advice of the Council of State regarding the Commission (hereafter: the Advice). In the Advice, issued on April 14, 2008, the Council of State discusses the issues falling within the Commission s mandate. The Council of State stated that the cabinet should indicate clearer which problems it regards as most acute, to what extent these problems can be attributed to the various points mentioned in the Advice, and then to determine which points can and should be submitted for the consideration of a state commission. Besides the three issues mentioned in the coalition accord the request included the question of expanding the agenda of the Commission. The Council of State listed 4 other issues that could be included within the mandate of the commission: Fundamental rights in the digital age The impact of international legal order on the national legal order; The relationship between essential Dutch constitutional values and decisions of international organizations or treaty provisions; The limitation clauses of fundamental rights. The Minister of Interior and Kingdom Relations, also on behalf of Minister of Justice, presented the Nader Raport to the Queen on July 18, 2008. 15 This report represented the position of the Cabinet regarding the Commission. It shows that the government attaches value to strengthen the democratic foundations of the polity. There are two tracks that are considered eligible for achieving this: the first concerns the promotion of knowledge and understanding of the Constitution, and the second concerns the preparation of possible amendments to the Constitution. The Commission will be asked to examine this second track. The Queen gave permission to present the Advice and Nader Raport to the Lower House. The Minister of Interior and Kingdom Relations and the Minister of Justice discussed their opinions with the Lower House on 1 October 2008 and on 21 January 2009. In response to these discussions, the Minister of Interior and Kingdom Relations, on behalf of the Cabinet, sent a letter of conclusions to the Lower House. This letter consists of the determination on the establishment of the Commission and the seven issues to be examined by the Commission. The Commission was established on July 3, 2009. 16 14 http://www.regering.nl/dsc?c=getobject&s=obj&objectid=74605 15 http://www.minbzk.nl/actueel?actitmidt=115063 16 http://www.staatscommissiegrondwet.nl/userfiles/files/kb%20instellingsbesluit%20staatscommissie%20grondwet.pdf 5