A. Exceptionalism in the Spotlight
Writing in 1947, legal scholar P.J. Oud explained that the practice in the United States of America to allow the courts to judge the constitutionality of acts of parliament was quite rare, as most countries restricted constitutional review to their legislatures.Footnote 1 American exceptionalism in this regard is something of the past, as the judicial review of constitutions has become the common currency in modern-day constitutionalism.Footnote 2 Today, American exceptionalism has been replaced by Dutch exceptionalism. This is because the Netherlands is one of the few constitutional democracies that still prohibits the courts from reviewing the constitutionality of acts of parliament.
The prohibition on review, contained in Article 120 of the Dutch Constitution, was confirmed in 2018.Footnote 3 In that year, the House of Representatives ruled that the most serious attempt to date to amend the prohibition had lapsed.Footnote 4 This brought to an end a remarkably long trajectory of sixteen years, as the constitutional amendment Bill had been tabled in 2002. The House of Representatives made the unusual decision that the Bill had ceased to be valid because, although it passed its first reading, it never completed its second reading. The Bill was, therefore, not rejected on its merits, but rejected for procedural reasons. The Bill was originally introduced by Femke Halsema, a member of parliament for the opposition Green Left party. Halsema left the lower chamber in 2010 and did not experience its lapsing first hand.Footnote 5 For the sake of clarity, this Article will refer to this attempt to amend the Constitution as the Halsema Bill.
One might be forgiven for thinking that the lapsing of the Halsema Bill confirmed the Netherlands on its path toward constitutional exceptionalism.Footnote 6 This would be only partially correct. At roughly the same time the Bill lapsed in 2018, the State Commission on the Parliamentary System published its lengthy report in which it advised the government to introduce the constitutional review of acts of parliament by the judiciary, among an array of other proposals.Footnote 7 The government instituted the State Commission in 2017 with the task of studying whether the country’s parliamentary system was “future proof.”Footnote 8 The Commission’s recommendation for reforming Article 120 of the Constitution resembles the Halsema Bill in many respects. Though several differences do exist. In its first reaction to the report, the Cabinet indicated that it needed more time to study the proposals on constitutional review.Footnote 9
The debate on constitutional review by the judiciary in the Netherlands is clearly far from over given the current situation. In addition to national academic interest in the topic, the country’s somewhat unique position among its European peers also justifies its study as comparative constitutional law material. Consequently, this Article will critically analyze and evaluate the question of whether the prohibition on constitutional review by the judiciary of acts of parliament should be reformed. The country’s exceptionalism in this regard, and by implication its comparative value, will be shown to have little merit given the need to protect and promote the normativity of the Constitution. In making the argument for reform, the structural embeddedness of Article 120 of the Constitution will become apparent. In preventing the case for reform from becoming an empty victory because of this, this Article will also consider the question of how such reform can be achieved. While the debate usually centers on the steps to be taken by the legislature in reforming the provision, this Article will point to the potential role of the courts in effecting constitutional change through legal development.
The analysis is divided into three parts. The first part, Section B, will sketch the context of the prohibition in Article 120 of the Constitution. The range of the prohibition will be considered to get a clear picture of the state of play in Section B.I. Closer attention will then be paid to understanding the various reform proposals. This will include comparing the State Commission and the Halsema Bill against the background of the applicable constitutional amendment procedure in Section B.II. The second part, Section C, will focus on the case for reform by evaluating new arguments and updating others. This means assessing: The impact of the courts’ powers of treaty review on the question of constitutional review, in Section C.I; the true value of the doctrine of legislative primacy in settling the issue of reform, in Section C.II; and the consequences of composite constitutional thinking on the debate, in Section C.III. This last consideration is one which usually attracts little attention if any. Yet, the multilevel context of the Constitution is becoming increasingly important to gauge the possible added value of judicial review. In addressing the question of reform, the meaning of the recent Urgenda judgments on climate change will be factored in to better understand the judicial function in the Netherlands.Footnote 10 The threads of the discussion will be drawn together in Section C.IV in summarizing the case reform, before sketching a roadmap for reform in the third part, Section D.
B. The Context of the Prohibition on Constitutional Review
I. The Range of Article 120 of the Constitution
The Constitution of the Netherlands dates from 1815, while the prohibition on constitutional review was introduced by the revision of 1848. Before such time, the text was silent on the issue of review.Footnote 11 The provision was included as a way of strengthening the country’s fledgling parliamentary democracy, and originally stated that “acts of parliament are inviolable.”Footnote 12 This wording has been retained across various revisions since, receiving its current formulation in Article 120 after the major revision of 1983. The prohibition now reads: “The constitutionality of acts of parliament and treaties shall not be reviewed by the courts.”Footnote 13 In comparison to its previous formulation, the prohibition on constitutional review is now expressly directed at the judiciary and covers not only acts of parliament, but also treaties.
With regard to acts of parliament, Article 120 of the Constitution prevents the courts from judging whether a lower norm, an act, is in accordance with a higher norm, the Constitution.Footnote 14 This restricts the unwritten rule that courts are competent to decide if lower norms of law are in accordance with higher norms. The effect is to establish a strict separation between the legislature, on the one hand, and the courts, on the other hand. The legislature is, by implication, the sole body capable of determining the constitutionality of the acts it passes.Footnote 15 This extends to both the formal and material qualities of acts.Footnote 16 By including only acts of parliament in the prohibition, and not legislation as such, courts remain competent to review the constitutionality of secondary, or delegated, legislation.Footnote 17 Article 120 is not intended to withdraw the Constitution entirely from the courts, however, as they may still interpret acts of parliament in accordance with the Constitution in the event of legislative ambiguity.Footnote 18 In practice, this duty is quite rare and weak, given that the courts are careful not to overstep the distinction between interpreting and reviewing acts of parliament. The contra legem doctrine, first developed by the Supreme Court in the 1970s, might seem like an exception though to the courts’ cautious attitude when interpreting the Constitution. The doctrine holds that courts will not apply acts of parliament that occasion harsh consequences for those involved in a contravention of fundamental principles of law.Footnote 19 The doctrine, however, applies only in the event the legislature did not foresee, or intend, the harsh consequences. The effect is not to question the legislature or exempt certain cases from the prohibition on constitutional review, as is sometimes thought.Footnote 20 Instead, the doctrine shows that the courts are careful to fulfill the legislature’s will.
Contrary to the wording of Article 120 of the Constitution, the range of national higher law excluded from judicial review is not limited to the Constitution alone. Apart from the Constitution, the Charter of the Kingdom of 1953 is also a norm in the hierarchy, with a higher value than acts of parliament.Footnote 21 Consequently, the Charter ranks higher than the Constitution but comes in just below treaties. The Charter applies to the Kingdom as a whole, which includes not only the Netherlands, but also its other constituent parts in the Caribbean of Curaçao, Aruba, and Sint Maarten. Together with the Netherlands, these countries form the Kingdom, each with their own national authorities and Constitution. Article 120 belongs to the Constitution of the Netherlands, and not to the constitutions of the other countries comprising the Kingdom.
In a landmark judgment from 1989, the Harmonisatiewet case, the Supreme Court ruled that the effect of Article 120 was also to rule out reviewing acts of parliament for compliance with the Charter.Footnote 22 The Court ruled this way even though the Charter does not expressly prohibit its judicial review. In reaching this conclusion, the judgment perceived Article 120 of the Constitution to embody a general cornerstone of constitutional law in the Netherlands applicable to the Charter as well.Footnote 23 In addition, the Court ruled that the prohibition on review included unwritten fundamental principles of law.Footnote 24 The general effect of the judgment was to rule out the judicial review of acts of parliament for compliance with any national sources of higher law, be it the Charter, the Constitution, or fundamental legal principles.
Establishing the range of the prohibition did not preclude the Supreme Court from remarking that the contested act of parliament contradicted legal certainty, which is one of the fundamental legal principles.Footnote 25 The Court’s remark could be interpreted as an example of weak judicial review, by noting a legislative failure without sanctioning it as strong review would have it. A practice of weak review by the courts of the Constitution or other national sources of higher law has not developed to date, although a few writers deem the competence to exist because of the remark.Footnote 26 Exempting weak review from Article 120 of the Constitution, however, does not seem to be reflective of orthodox thinking. General commentaries on the provision are usually silent on weak review and, at best, only note the Court’s remark.Footnote 27 In the event that weak review is discussed, particular caution is either advised in respect of the judgment or such review is mentioned as something that could be introduced.Footnote 28 Given the lack of judicial practice and what can be deduced from general commentaries, the more conventional position seems to be that Article 120 encompasses both the strong and weak review of acts of parliament.
Whereas an express prohibition was necessary to prevent the courts from reviewing the constitutionality of acts of parliament, its extension in Article 120 of the Constitution to treaties was unnecessary. According to the hierarchy of legal norms, treaties stand above the Constitution while acts of parliament rank directly below the Constitution. By extending the reach of the provision to include treaties, Article 120 of the Constitution does not exclude their judicial review as much as it confirms the hierarchy of norms in relation to treaties. This is because the constitutional review of treaties by the courts would have been impossible in any event, given their higher rank in the norm hierarchy. As a matter of fact, acts of parliament, and even the Constitution, may be judicially reviewed against binding international law, given the higher rank of such law in relation to all sources of national law. The relationship between the constitutional and treaty review of acts of parliament will be explored further in Section C.I.
II. Proposals and Procedure for Reforming Article 120 of the Constitution
In putting Article 120 of the Constitution further into perspective, attention must be paid to the proposals for its reform and the constitutional amendment procedure. In doing so, the general nature of the proposals will become apparent, thereby laying the basis for discussing the arguments for and against constitutional reform in Section C. Also, the sheer number of proposals taken together with the long timespan of the discussion will show the real executive and legislative reluctance to reform the provision. The structural embeddedness of the provision will be amplified by explaining the difficult procedure to amend the Constitution. These insights will be drawn on in Section D in charting the way forward after having reflected on the merits of reform.
The recommendations of the State Commission and the Halsema Bill are but the most recent examples of initiatives aimed at reforming Article 120 of the Constitution.Footnote 29 Another example to date supporting reform is the Proeve van een nieuwe Grondwet of 1966. Written at the behest of the Ministry of Home Affairs, the document developed a draft Constitution in order to stimulate discussion about constitutional change in general. In 1969, the Second Report of the then State Commission on the Constitution and the Electoral Law endorsed the Proeve’s proposal for amending the prohibition on constitutional review. These reports left the government unconvinced, as the bar was retained during the last major revision of the Constitution in 1983. In 1991, the Cabinet presented its preliminary point of view supporting the introduction of constitutional review, pointing out that the only remaining question concerned the type of review to be introduced.Footnote 30 The attorney general of the Supreme Court, the Council of State, and selected academics were asked about the topic.Footnote 31 The Cabinet, nevertheless, decided not to follow through with the introduction of review, further consulting the Supreme Court in 1997.
The issue was revived again in 2002 by the publication of a Cabinet note cautiously favoring reform in response to an official report on fundamental rights in the digital age.Footnote 32 Just before the Cabinet made its views known, the now lapsed Halsema Bill was tabled in the same year. This was an attempt by some in the parliamentary opposition to keep reform on the agenda if the Cabinet backed down again.Footnote 33 A number of recommendations followed the Bill. In 2006, the government-convened National Convention, entrusted with producing ideas on how to narrow the gap between the people and politics, favored reforming the prohibition on review.Footnote 34 Although not formally a part of its remit, the State Commission on the Constitution also joined the chorus in favoring reform in 2010. This was followed by the most recent State Commission, which devoted a substantial section in its 2018 report to argue the case for constitutional review by the judiciary.Footnote 35 In its response to the report, the Cabinet called for more time to study the proposals, noting that the Commission’s case for review was not immediately persuasive.Footnote 36 The Cabinet added that it did not rule out counter-proposals, such as allowing weak constitutional review, instead of legally binding judgments.Footnote 37
In addition to not achieving reform, most of the proposals and studies have another feature in common. While the vast majority of proposals endorse reforming Article 120 of the Constitution, they stop short of calling for its abolition. Generally, the proposals favor only the judicial review of classical rights. Acts of parliament that violate such rights would consequently not be applied by the courts. This would leave the prohibition intact regarding socio-economic rights and other constitutional provisions, such as those relating to the organization of the state and legislative procedure. The Halsema Bill, for example, would have introduced a sub-article in Article 120 of the Constitution listing the provisions exempted from the prohibition on review.Footnote 38 The most recent State Commission proposed the same approach.Footnote 39 Where most proposals differ is on the type of review to be introduced. While the Halsema Bill favored decentralized review by allowing all courts to conduct review, the State Commission favors the concentration of review in the hands of a constitutional court to be created for this very purpose.Footnote 40
For a proposal to reform Article 120 of the Constitution, it would have to pass two readings to successfully navigate the long and difficult constitutional amendment procedure.Footnote 41 During the first reading, an amendment bill must be passed by a simple majority in both houses of parliament. A general election for the House of Representatives must precede the second reading, which requires that both houses pass the bill with a two-thirds majority. While the Halsema Bill was tabled in 2002 and passed its first reading in 2008, it never completed its second reading. This was the case even though there had been three general elections after its first reading. As the Halsema Bill passed it first reading in the Senate by only one vote, it seems its supporters were hesitant of a second reading, fearing that the required two-thirds majority would not materialize. This hesitance was not rewarded, as the House of Representatives decided in 2018 that the Halsema Bill had lapsed for not completing its legislative trajectory sooner.Footnote 42 Even the Member of Parliament who sponsored the Halsema Bill tried to withdraw it, citing that it had become unattainable.Footnote 43 The most important attempt at reforming the prohibition on review since its debut in 1848 had fallen victim to a slow and quiet demise. Political reluctance by some in the legislature, and a mixture of disinterest and opposition by others, sealed the Halsema Bill’s fate. Even relaxing the constitutional amendment procedure, as proposed by the State Commission, would not have come to the Halsema Bill’s rescue, given its general lack of support.Footnote 44
What becomes apparent in considering the various attempts at reform is that the weight of official reports and studies has consistently come down on the side of at least softening the prohibition on review in Article 120 of the Constitution. By contrast, the political institutions have, at best, been lukewarm about the idea. Their opposition seems to be rooted in doubts about the relationship between constitutional review, on the one hand, and treaty review and legislative primacy, on the other hand. These issues will be discussed below in appraising the merits of reform in addition to insights from composite constitutionalism.
C. The Case for Constitutional Reform
I. Treaty Review by the Courts of Acts of Parliament
The constitutional system of the Netherlands accords an important place to international law, operating on the monist principle that its legal order comprises both national and international law.Footnote 45 A consequence of its monist system is that courts can review the compatibility of national legal norms, including acts of parliament, with international law, which is of a superior rank in the hierarchy of norms.Footnote 46 Article 94 of the Constitution is very important in this regard, as it outlines the conditions under which treaty review can be carried out.Footnote 47 This provision, whose forerunner was included by the constitutional revision of 1953, enjoins the courts to give preference to international law over conflicting national law if an international provision is sufficiently clear for judicial application and the provision was intended to create rights for individuals.Footnote 48 International legal provisions aimed at only creating reciprocal obligations between states fall outside the purview of the courts. In practice, the courts have come to apply typical classical rights, especially from the European Convention on Human Rights (ECHR), instead of socio-economic rights.Footnote 49 Socio-economic rights are often considered too vague for direct application or intended to create only interstate obligations instead of subjective rights.
Treaty review creates the contradictory situation that while courts may not review the constitutionality of an act of parliament, the act in question can be reviewed against international law. This raises questions about the relationship between the two types of review and what this means for maintaining the prohibition on constitutional review. These questions are addressed below.
1. Comparing National and International Guarantees
The argument could be made that constitutional review is superfluous to the extent that it copies treaty review. In such a situation, constitutional review does not add anything meaningful to the existing powers of the courts, but simply doubles existing protection. When comparing the two types of review, it becomes clear that constitutional review would not amount to a carbon copy of treaty review. As a consequence, the mere existence of treaty review does not disqualify the case for constitutional review.
Apart from provisions dealing with the organization of the state and the separation of powers in the Constitution, the protection of its fundamental rights differs as to its range and formulation from many rights in international law. The right to education in Article 23 of the Constitution is quite a different read than the corresponding right in Article 2 of the First Protocol to the ECHR, for instance. While the national right is very detailed, given its eight sub-articles, the international right is more focused on outlining principles that can be applied to a host of jurisdictions in addition to national guarantees.
Turning to the nature of protection, the State Commission, in its report, made clear that the crux of the Constitution’s protection is formal.Footnote 50 Fundamental rights in the Constitution may be limited, to the extent that they can be, only by an act of parliament or through delegated legislation if so allowed by the Constitution. The right to freedom of religion in the first paragraph of Article 6 of the Constitution may be limited only by an act of parliament. At the same time, the second paragraph also allows limitations by delegated legislation in the instances described there. By contrast, a limitation of the corresponding right in Article 9 of the ECHR needs only to be based on a domestic legal rule, leaving the type of rule up to the discretion of the national authorities. The constitutional requirements regulating the legality of a limitation are clearly stricter than those in most treaties. In addition, the second paragraph of Article 9 of the ECHR requires that a limitation must be necessary for a democratic society, thereby introducing a proportionality test. The Constitution, given its emphasis on the legality of interferences, does not include a comparable interference legitimacy test. In the event that judicial review is introduced, courts could read in such a test. It remains far from certain though that they would simply copy the tests in some treaties.Footnote 51
2. Minimum Level of Protection Surpassed
Another reason for constitutional review not to follow from treaty review would be if the two types of review provided different levels of protection. This would be the case if treaty review provided a minimum level of protection in the national order, as opposed to a higher level provided by constitutional review. The Halsema Bill and a previous State Commission, for instance, took the view that international law amounts only to the minimum protection of fundamental rights.Footnote 52 In the event that this is true, it could be argued that allowing the courts to review the Constitution would amount to a much greater breach of the separation of powers than under treaty review. Consequently, a more serious justification of constitutional review would be required, as opposed to treaty review, which impairs the separation of powers less by providing only a minimum level of protection.
By many accounts however, modern international law amounts to much more than simply the lowest common denominator in protecting fundamental rights. The criticism leveled at the European Court of Human Rights (ECtHR) by Marc Bossuyt, former president of the Constitutional Court of Belgium, proves the point. Bossuyt has argued that the ECtHR over-reaches itself, especially in asylum cases, by acting as a court of the fourth instance instead of maintaining a proper distance from national authorities.Footnote 53 He has not been alone in his criticism as an intervention by Lord Hoffmann shows.Footnote 54 Whether one agrees with these criticisms or not, they illustrate that the ECHR does not necessarily match the view of it being a minimum standard.
In the case of the Netherlands, it is undeniable that treaty review has become a firm feature of securing legal protection for individual and private interests. The ECHR can even be said to be the country’s veritable bill of rights as it has shaped its legal landscape for decades, together with other treaties.Footnote 55 This is amplified by the fact that although the ECHR guarantees only classical rights, the ECtHR interprets some rights as possessing a clear social dimension well beyond what would be necessary to establish minimum benchmarks for the operation of political systems.Footnote 56 The potential impact of this on the national protection of rights is strikingly clear from the Urgenda case on preventing climate change. In 2019, the Supreme Court confirmed the 2018 Court of Appeal in The Hague decision, which, on its part, confirmed that city’s 2015 District Court decision. The District Court decision provided that the state had to act immediately to reduce the emission of greenhouse gasses by twenty-five percent by the end of 2020, relative to 1990 levels.Footnote 57 The Supreme Court and Court of Appeal based this decision on the right to life in Article 2 of the ECHR and the right to respect for private and family life in Article 8 of the ECHR. These Courts made it clear that such rights not only extend to environmental situations but also occasion positive obligations for the state to act in ensuring their sufficient protection.Footnote 58 As the state had failed in its duty to protect these rights, it violated them.Footnote 59 Moreover, the Courts were left unconvinced by the state’s argument that imposing a duty on it to act would breach the separation of powers by allowing judges to enter the political domain, or that it would impinge on the state’s margin of appreciation.Footnote 60 It was explained that the margin applied only to the measures chosen by the state in meeting its obligations under the ECHR, and not to the fact that it had to meet those obligations. The message from the Supreme Court and the Court of Appeal in The Hague is clear. Treaty review cannot, as a matter of course, be equated with the application of narrowly defined classical rights to clear-cut situations. Instead, it has the potential to encompass much more. If the courts are entrusted with power of such capacity, it would be illogical to continue their exclusion from constitutional review.
II. Primacy of the Legislature and the Role of the Courts
Treaty review in the Netherlands affirms the proposition by Dawn Oliver and Carlo Fusaro that a country’s membership of a supranational legal order, such as the ECHR, can act as a major agent for constitutional change influencing topics such as the role of the judiciary.Footnote 61 As both the State Commission and the Halsema Bill show, treaty review brought an end to the strict separation of powers between the legislature and the courts.Footnote 62 The consequence is to cast serious doubt on the doctrine of the primacy of the legislature as the politico-constitutional mainstay of the case against constitutional review. Holding that legislators, as opposed to appointed judges, should decide constitutional issues because of their democratic credentials, becomes an academic exercise given the everyday reality of treaty review.Footnote 63
Even if there had been no theoretical spill-over from treaty review breaching the walls of the primacy of the legislature, there would still be reason to reject an exclusive alignment of constitutional review with legislative review as it occurs in Article 120 of the Constitution. As it is argued below, the prohibition can also be criticized on its own merits.
1. Centrality of Acts of Parliament
According to the primacy of the legislature, acts of parliament are the preferred tools with which to protect the Constitution. As explained above, Article 120 of the Constitution expressly exempts acts of parliament from judicial review. The centrality of acts of parliament is further confirmed by the fact that limitations to fundamental rights must be based on acts, as pointed out when treaty review was compared to constitutional review in Section C.I.1.
There is a profound cause to question the extent of the reliance placed on acts of parliament in protecting the Constitution. This is because the Netherlands has by no means been exempted from the inflation to which acts of parliament have been subjected in other jurisdictions. The country is a clear example of what Mauro Cappelletti termed the “administrative state” in describing the large number of issues regulated through delegated legislation.Footnote 64 The Council of State, the government’s highest advisory organ, has on numerous occasions referred to, and warned against, the hollowing out of acts of parliament.Footnote 65 The State Commission noted this trend in 2018, and before it the Halsema Bill in 2002.Footnote 66 The new Environment and Planning Act serves as an example.Footnote 67 The Act, which comes into force in 2021, merges twenty-six acts of parliament into one new Act. The Act is essentially a legislative framework, the workings and content of which will have to be fleshed out by government decrees. Its effect is to put the importance of acts into perspective, and by implication, the doctrine of the primacy of the legislature on which it rests.
Such legislative frameworks serve not only to empower other rule-makers, such as the government, but also the courts. This is because the courts in the Netherlands can review the constitutionality of delegated legislation, as long as they refrain from reviewing the acts of parliament from which such delegated powers issue. The wider the delegated mandate granted in the act of parliament, the wider the commensurate powers of judicial review, and the weaker the doctrine of primacy as a constitutional norm. To this, it may also be added that even if the practice of delegation would decrease, indeterminate norms in acts of parliament would still require judicial interpretation and application, thereby exposing the limits of legislative primacy further. The judgment by the District Court in the Urgenda case serves as a pertinent example of the courts’ power to interpret such open norms.Footnote 68 While the Supreme Court and Court of Appeal favored treaty review in testing the government’s climate policy directly against Articles 2 and 8 of the ECHR, the District Court based its decision on Article 6:162 of the Civil Code, which regulates unlawful action. The latter Court noted that it would factor in the state’s obligations when interpreting and applying such private “national-law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles.”Footnote 69 In applying the Civil Code, the Court duly turned to the Constitution, the ECHR, and other sources of international law and EU law for inspiration in finding that the government acted unlawfully and had to reduce national greenhouse gas emissions.Footnote 70
Acts of parliament may be central to the constitutional edifice of the Netherlands, but they are not as important or self-sufficient in this function as the doctrine of legislative primacy might suggest. Given the reality of the situation, insisting that acts of parliament be insulated from judicial review because of their special role fails to be convincing. The effect is also to question the relevance of constitutional theory that focuses solely on acts of parliament in making the case against judicial review, such as Jeremy Waldron’s “core case” against review.Footnote 71 An exclusive focus on acts of parliament in settling the question of judicial review is too narrow, as it overvalues such acts while underestimating the complexity of constitutional checks and balances.Footnote 72 It should also be noted that Waldron’s arguments are leveled only at strong-form judicial review of acts of parliament. In contrast, orthodoxy implies that Article 120 of the Constitution excludes both strong and weak review.Footnote 73 If accepted, Waldron’s position would only save the provision in part. This leaves the much more difficult case of rejecting weak-form review, too. The idea of weak review has received wide practical and theoretical acceptance across a number of jurisdictions that have been skeptical of judicial review.Footnote 74 This is, in part, because the primacy or supremacy of the legislature is not upset, as courts are denied the final word, especially on the application or validity of acts of parliament.Footnote 75 This type of review has also gained acceptance in political constitutionalist theory as a way of drawing attention to voices of “unpopular or isolated minority groups without access to the democratic sphere.”Footnote 76 At the very least, courts in the Netherlands could put constitutional rights to the same use in reviewing acts of parliament. Admittedly, political constitutionalist thinking views rights as political constructs, as opposed to their entrenched and higher law character in the Dutch Constitution.Footnote 77 But if the problem in both contexts is the same, weak review as the solution could arguably be put to the test in both, too.
If anything, a conflation of constitutional review with legislative review as absolute as Article 120 of the Constitution would have it is open to real challenge. This challenge should not be taken to mean that the centrality of acts of parliament in the Netherlands is to be undone. This has never been the context of the proposals for reforming Article 120. Rather, the focus has always been to introduce a measure of bi-polarity, to use Tim Koopmans’ description, to the primacy of the legislature by allowing the courts to review its acts of parliament.Footnote 78 For example, the Halsema Bill made it very clear that its intention was never to supplant legislative democracy but to complement and augment it.Footnote 79 The judiciary is to fulfill an editorial function of sorts by providing a forum for the constitutional contestation of acts of parliament, while the legislature is still to author acts in a primary sense.Footnote 80 This way, the primacy of the legislature remains the default position. The Bill even took the view that judicial review would have to be increasingly circumspect the more the legislature expressed itself on a topic.Footnote 81 Moreover, both the State Commission and the Halsema Bill favor only the ex post review of acts of parliament, as opposed to also the ex ante review of bills.Footnote 82 The effect is to soften the strict separation of powers in Article 120 by introducing review while stopping short of allowing the courts a role at the very heart of the democratic process of law-making. In addition, both the State Commission and the Halsema Bill limit their support to the review of classical rights, thereby leaving the doctrine of primacy untouched as regards socio-economic rights and other constitutional provisions.
The centrality of acts of parliament is neither threatened, nor made controversial by the proposals for reforming Article 120 of the Constitution. But what is controversial to an unacceptable degree is basing Article 120 of the Constitution on their centrality.
2. Legislative Procedure as Quality
Acts of parliament can also be scrutinized from a different angle than their central role in the constitutional edifice. This is because the heavy legislative procedure in adopting an act of parliament is, in itself, seen as a guarantee in protecting the Constitution, especially in comparison to the lighter procedures for delegated legislation.Footnote 83 This heavy procedure is amplified by the fact that the Netherlands has a bicameral legislature, thereby supporting the principle of limited government by restricting the process of legislative decision-making.Footnote 84 Although many other unitary states abolished bicameralism in favor of unicameralism, such as in Scandinavia, the Netherlands did not follow this trend. Both legislative chambers have to adopt a bill before it can become law, after having considered the non-binding comments of the Council of State regarding the quality of the proposed legislation.Footnote 85
There is definitely mileage in the view that acts of parliament are to be respected because of the way in which they are made, especially in a bicameral setting. Doubts arise though when such thinking is used to justify Article 120 of the Constitution. This is because acts of parliament are not necessarily constitutional because of their procedural origins. Legislative procedure by itself seems a poor guarantee against a political majority advancing its interests alone in dealing with the Constitution.Footnote 86 In addition, legislative review is by definition ex ante, and thus abstract in nature, which means it cannot discount all ex post issues of constitutionality arising from the application of acts of parliaments.Footnote 87 Ex ante review is also not synonymous with the constitutional scrutiny of bills, as the Constitution does not feature as much here as might be expected. The situation has improved on the past, however, when the lack of policy in this field was lamented and fundamental rights in the Constitution were referred to only on an incidental basis.Footnote 88 Nonetheless, as recently as 2013, Ernst M.H. Hirsch Ballin could still point to a worrying “constitutional silence” in many legislative debates.Footnote 89 The State Commission also noted a decline in the overall quality of legislation in its Report in 2018.Footnote 90
Hirsch Ballin attributes the lack of interest in the Constitution, in part, to the fact that treaties can be reviewed by the courts while the Constitution cannot.Footnote 91 This reading seems to be confirmed by the legislative review leading up to the enactment in 2018 of the much-discussed partial prohibition on face-coverings, the so-called burqa ban.Footnote 92 In its explanatory memorandum to the Bill, the government focused nearly exclusively on the ECHR and its jurisprudence. The same applies to the Council of State’s opinion.Footnote 93 The Constitution warranted only a few incidental references, such as explaining that the prohibition on the right to freedom of religion would be in the form of an act of parliament as required by Article 6(1).Footnote 94 In discussing the Bill, there was clearly no independent constitutional culture to speak of when compared to the ECHR, which is backed up by the judgments of the ECtHR. Given there is room for improvement, it can be agreed with the Cabinet that the proposals by the State Commission to better constitutional review in the legislative process are to be welcomed.Footnote 95 The State Commission wisely did not propose to strengthen legislative constitutional review as an alternative to judicial review, but instead as an addition to its judicial proposals.
Ironically, the lack of sufficient constitutional debate in the legislature is exemplified by the controversial dismissal by the House of Representatives of the Halsema Bill. Instead of welcoming debate on the possible role of the judiciary in protecting the Constitution and reflecting on its own role in the legislative process, the House dismissed the Bill on a point of procedure.Footnote 96 Criticism can also be leveled at the Senate. Given its indirect election, the Senate is viewed as the preferred chamber to conduct constitutional review, as opposed to the directly elected House as the setting for political choices and majoritarian priorities.Footnote 97 The Senate though, is not always the chambre de réflexion many would want it to be. One of the reasons for this is because Senators have a four-year term, as opposed to the six-year term they had before 1983. The effect is to place them much closer to the election cycle and the political pressure of being re-elected. This may not be as conducive to the ideal of detached review. While the State Commission was not in favor of it, the Cabinet in 2019 unexpectedly announced its support to return to six-year terms.Footnote 98 This time agreeing with the State Commission, the Cabinet also favored allowing the Senate to amend and return bills to the House for its reconsideration.Footnote 99 At present, the Senate can only accept or reject bills. While these reforms are to be supported, it remains to be seen if the Constitution will be amended to allow them, and what will become of them in practice.
By definition, the Senate remains susceptible to political pressure. That is the constant reality. The weaker a governing coalition is, the more vulnerable its senators are to criticism that they are more interested in supporting government policy than exercising constitutional review. Consider the situation where the third coalition of Prime Minister Mark Rutte had but a one-seat majority in both houses of the legislature until losing its majority in 2019.Footnote 100 Under such circumstances, it becomes very difficult for senators to be politically detached in matters that might be determinative for the survival of the government. Alternatively, a large government majority in the Senate could encourage complacency among its members. Conversely, the absence of a majority might embolden the opposition to thwart the government’s legislative agenda, instead of putting constitutional review first. For example, the 2019 elections saw Forum for Democracy, an opposition party and newcomer to the Senate, attain joint-share of first place in that chamber by garnering twelve seats out of seventy-five.Footnote 101 By comparison, the party holds only two out of the one hundred and fifty seats in the House of Representatives, and so has little leverage in the lower chamber. This has led the party to state that it wishes to use its large block of votes in the Senate to force political change via the upper chamber.Footnote 102
Taking a critical view of the Senate as constitutional guardian does not mean that the institution fails as such in its duty. Various examples illustrate that the chamber can be quite protective of fundamental rights at times.Footnote 103 It can, therefore, be agreed with the State Commission and the Cabinet that the institution has a valuable role to play in protecting the country’s democratic rechtsstaat.Footnote 104 The point is, rather, that legislative procedure, as it applies in both the House of Representatives and the Senate, cannot serve as a reason to exclude judicial checks on the constitutionality of acts of parliament as a matter of course. Legislative procedure is inherently too party political and unpredictable for this to be the case.
III. Composite Constitutionalism as Paradigm
A multilevel perspective, understood in its international and European Union (EU) dimensions, has largely been lacking from the debate in the Netherlands on constitutional review. This is different from the treaty argument, which concerns itself with distinguishing between treaty review and constitutional review. It is also different from the prohibition in Article 120 of the Constitution preventing the courts from reviewing the constitutionality of treaties. Instead, the focus in this section falls on the normative implications of the Constitution on international and EU law, if acts of parliament were to be reviewed by the courts.
In considering both the State Commission’s report and the Halsema Bill, the context of their proposals is largely a domestic or statist one. This is especially true of the Halsema Bill. A statist perspective understands the question of review as one of staatsrecht, the law of the state, as opposed to one of constitutioneel recht, or constitutional law. As Neil Walker explains, replacing “state” with “constitution” is not replacing like with like.Footnote 105 The effect is to replace the concept of the state as a regulatory category, which implies “singularity and mutual exclusivity of public authority,” with a “universalizing category” suggestive of “continuity and complementarity of public authority.”Footnote 106 Public authority is thereby given a post-national and multilevel dimension, as it is recognized that the state alone cannot meet the demands of its inhabitants.Footnote 107 Emphasizing constitutioneel recht, and not staatsrecht, as the appropriate paradigm in regulating and controlling public authority also conditions the question of judicial review and the Constitution. In this regard, it raises questions about the relationship between national, international, and EU legal norms as part of the country’s composite constitutional order.
1. International Dimension
A constitutional paradigm, as opposed to a statist one, best captures the reality of the monist application of international law in the Netherlands as a method with which to control public power. Within this composite paradigm, treaty review in accordance with Article 94 of the Constitution has led to the legislative process factoring in international law.Footnote 108 This stands in stark contrast to the summary treatment of the Constitution, which suffers from a normative deficit in this regard given Article 120. In addressing this imbalance, the judicial review of acts of parliament against the Constitution could serve to enhance thinking about it and its presence in the country’s political life. What is often overlooked is that bolstering the normativity of the Constitution in this way could also serve to increase its role in relation to international law.
Once the prohibition on judicial review in Article 120 of the Constitution is qualified, the argument could be made that acts of parliament approving treaties may be reviewed in principle as well. Strictly speaking, this would not contravene the prohibition in Article 120 on reviewing the constitutionality of treaties, as the object of review would be an act of parliament and not a treaty. This argument would hold only as long as the scope of the review does not in any way extend to the treaty being approved by the act.Footnote 109 Any exceptions to the prohibition on reviewing the constitutionality of treaties would have to be granted expressly, such as the suggestion by the State Commission to entrust the judiciary with the ex ante power to decide if a treaty violates the Constitution.Footnote 110 Treaties found to be unconstitutional in this manner would consequently have to be adopted by a two-thirds majority, as prescribed in Article 91(3) of the Constitution.Footnote 111 The triggering of this provision is now solely at the discretion of the political branches. In contrast, the proposed judicial review would help place the Constitution at center stage in the adoption of treaties. Even in the absence of such ex ante review, judicial review could still affect the adoption of treaties indirectly. This is because the political branches could draw on the Constitution as judicially clarified and expounded in other cases in grounding their decisions whether to adopt a treaty or not.
Apart from the adoption of treaties, the question of reforming Article 120 of the Constitution can also be studied from the perspective of implementing treaties through acts of parliament. Constitutional review would allow courts to test the exercise of any discretion allowed to the state under international law, such as when it legislates within its margin of appreciation granted by the ECtHR. A court would have to defer to international law where an implementing act contradicts the Constitution. To do otherwise would be to invert the hierarchy of norms which places international law above national law, including the Constitution. Recalibrating the hierarchy of norms has not been part of the proposals to reform Article 120 of the Constitution. An exception of sorts to this was the proposal in 2010 by some members of the previous State Commission. These members suggested that the core values of the Constitution, whose codification in a special general value provision the whole Commission supported, were to be used to test the direct application of international law found to be binding according to Article 94 of the Constitution.Footnote 112 This would mean that courts may allow international law to supersede national law only to the extent that international law does not contradict the Constitution’s values codified in the new provision. A constitutional amendment introducing a shortened version of the value provision proposed by the State Commission is at present making its way through the legislature.Footnote 113 The provision, however, would not allow the courts to test the constitutionality of international law before applying it, as desired by some State Commission members. A codification of core constitutional values could, nonetheless, serve as an aid to the courts commensurate with their powers of interpretation and review in developing a Constitution-based culture.
2. European Union Dimension
In addition to national and international elements, the composite constitutional order of the Netherlands also includes an EU component. This component needs to be distinguished from international law. Whereas the monist application of international law, such as the ECHR, is a question governed by national law, courts in the country classify EU law and its monist application as governed exclusively by the EU legal order.Footnote 114 National law does not concern itself with the validity or application of EU law. The situation in the Netherlands is, therefore, quite different from that in countries such as Germany and Poland. Courts in these countries use constitutional identity-type arguments to provide an ultimate national check on the monist application of EU law.Footnote 115 By qualifying the primacy of EU law in this manner, these Member States are viewed as “the masters of the treaties,” to use the terminology of the German Federal Constitutional Court.Footnote 116 By comparison, the Netherlands comes closer to Ingolf Pernice’s explanation of the EU as an original legal order based on the sovereign will of the people who constituted it, as opposed to a derivative legal order drawn from national sovereignty.Footnote 117
The special place of EU law in the composite Constitution of the Netherlands could warrant the view that it has no real relationship with the Constitution. This view is aided by the fact that the proposals to reform Article 120 of the Constitution hardly ever discuss the EU law dimension. To exclude EU law from the discussion on the need for reform would, nonetheless, be a mistake, as the Constitution does have a function to fulfill in the context of European cooperation and integration. What can be deduced from the proposals’ near-silence on the topic is that reform is not intended to upset the primacy of EU law. The courts will, consequently, not be allowed to judge the constitutionality of acts of parliament to the extent that they implement EU law. Acts of parliament approving EU treaties may likewise not be judged in contravention of the prohibition on constitutionally reviewing treaties in Article 120—similar to the position outlined in discussing international law mentioned above. Express powers would need to be created for the judiciary to review EU treaties, such as the State Commission’s proposal that such treaties also be subjected to an ex ante judicial check before their approval.Footnote 118 Even in the absence of such reform, judicial review, in other cases, would, at the very least, serve to stimulate a Constitution-based culture. The political branches could then draw on such a culture in deciding whether to approve future EU treaties or not. Moreover, such a culture could guide the intergovernmental participation of the Netherlands in the Council of the European Union as it co-legislates with the European Parliament and in the European Council, which sets the EU’s political priorities and direction.Footnote 119
The normative value of national constitutions is also relevant to EU law in other ways. For instance, multilevel constitutionalism for Ingolf Pernice means that the EU is a supranational authority, which is established progressively based on such national constitutions while binding them together in a newly composed constitutional system.Footnote 120 The EU is, therefore, an order reflective of its national orders, at least in part. Article 6(3) of the Treaty on European Union (TEU) recognizes this where it lists the constitutional traditions common to the Member States as one of the sources of fundamental rights in the EU.Footnote 121 The real potential of the Constitution to serve as a source of such tradition is at present sidelined by Article 120. This is because the prohibition on judicial review prevents the development of a strong national culture derived from it, which in turn contradicts the Constitution’s function as a cornerstone of national higher law. In addition, the fact remains that the EU is an inchoate and developing constitutional space and one which may never reach full completion. This makes it all the more necessary to recognize the importance of its national ingredients in developing and characterizing the space the EU shares with its Member States. Paradoxically, while Article 4(2) of the TEU even enjoins EU institutions, such as the Court of Justice of the European Union, to respect the “national identities” of the Member States “inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government,” the Netherlands itself is reluctant to allow its courts the same powers.Footnote 122
IV. Beyond Exceptionalism
The democratic rechtsstaat, as the typical characterization of the constitutional order of the Netherlands, is an abstract value that comes to life through its expression in principles and rules.Footnote 123 The Constitution is but one, yet important, cog in the normative edifice erected to realize the rechtsstaat and its democratic structures. In realizing and protecting this cog, the cumulative effect of the discussion in this part has been to show the theoretical and practical shortcomings of the prohibition on review in Article 120 in securing constitutional normativity. Allowing the courts to review acts of parliament will go a long way to improve the situation in a hard or direct way by not applying acts that contravene the Constitution. Importantly, judicial review will also promote constitutional normativity in a soft or indirect way.Footnote 124 All too often, the radiating and mediating effect of the Constitution, as a source of culture and justification, is overlooked in debating the benefits of judicial review.Footnote 125 Rather, the focus of the debate falls on review as an immediate check on the legislature to enforce rules. In this regard, the State Commission’s emphasis on reinforcing the Constitution’s “societal significance” through judicial review is to be welcomed.Footnote 126 Promoting “constitutional literacy,” as it has been called, through the courts could bolster the Constitution’s relevance in all its spheres of application, be they national, international, or EU-related.Footnote 127 To leave the prohibition intact would serve only to make an anomaly of the Constitution and prove correct predictions that the latter threatens to lose its force of law, thereby becoming a dead letter.Footnote 128 Far from being an example to emulate on the comparative stage, Dutch exceptionalism on constitutional review is one to be avoided.
D. Roadmap for Reform
Supporting the reform of Article 120 of the Constitution implies a duty to recommend how such reform can be achieved, especially in the Dutch context, where attempts at reforming the prohibition on constitutional review have been synonymous with failure. Ironically, while the prohibition on judicial review has been an obstacle to realizing the normativity of the remainder of the Constitution, the provision’s own normativity has proved tenacious, providing resistance to reform. The normativity of Article 120 cannot be ascribed to the provision being unamendable as a matter of constitutional law or theory, as the Constitution is generally viewed in positive law terms and as such amendable in its entirety.Footnote 129 Also, the reason for the absence of reform does not seem to be rooted in the proposals being overly ambitious or far-reaching in upsetting legislative primacy. If anything, the proposals for reforming Article 120 of the Constitution have been measured in their ambition. Furthermore, there are cogent reasons to support reform. Instead, the failure to achieve change should probably be sought in the circumstances under which constitutional reform usually takes place in the Netherlands. In this regard, the country’s Constitution often registers an existing practice as higher law, instead of driving societal and political change—such as the transformative Constitution of South Africa, for instance.Footnote 130 Legislative reluctance, and even inertia at reform, in the Netherlands would seem to decrease, to the extent that reform applies or extends existing constitutional logic or practice.Footnote 131 This ties in with the description of a constitutional amendment as the continuation of “the constitution-making project in line with the current design.”Footnote 132 This thinking bodes well for the inclusion of the earlier mentioned general value provision in the Constitution, as it would codify the existing values of the democratic rechtsstaat and fundamental rights. The amendment would, in effect, “elaborate” on the Constitution by advancing its meaning as presently understood.Footnote 133
Unfortunately, this knowledge provides little comfort in reforming Article 120. Instead of continuing the Constitution’s meaning or design, revising the provision would come close to a “constitutional dismemberment” by “disassembling” a structural feature of the Constitution.Footnote 134 This is because qualifying the rule that courts may not review the constitutionality of acts of parliament would indeed be novel. If the nature of constitutional reform in the Netherlands is anything to go by, the odds of such reform succeeding are low indeed. Options to break the deadlock would range from relaxing the rigid constitutional amendment procedure to ease reform, to simply waiting for either a legislative epiphany or perhaps even a political system rupture of near revolutionary proportions in favor of reform.Footnote 135 Although nothing can ever be ruled out, these options seem unrealistic. The route to reform must be sought somewhere else.
The sketched situation presents a conundrum. Reform of Article 120, to have a realistic prospect of success, should ideally reflect an existing practice of the courts reviewing the constitutionality of acts of parliament. The provision would seem to stand in the way of such a practice from taking root. But this would be the case only to the extent the debate on Article 120 conflates constitutional change with reform, understood as a procedural change of the Constitution on the basis of the formal amendment procedure in article 137.Footnote 136 This conflation consequently views the legislature as possessing a monopoly in bringing about any change to the provision. Although correct as to the wording of Article 120, this view is arguably too legal-positivist in over-concentrating on the amendment procedure as the appointed avenue for reform.Footnote 137 The reason for this criticism is that other types of constitutional change might be neglected in understanding or developing Article 120’s scope of application. More instructive is the insight by Dawn Oliver and Carlo Fusaro that the concept of change can also be understood informally as an evolution or development in state bodies’ practice, in addition to formal change.Footnote 138 The effect is to appreciate that the Constitution is interconnected with its institutional context in generating meaning through time.Footnote 139 Once this is realized in relation to Article 120, questions can be put about the role of the courts’ practice in promoting and protecting the Constitution.
Viewed from this perspective, more room exists for the courts to act in respect of the Constitution than might have originally been thought. Specifically, courts could develop a practice of weak constitutional review. In this regard, they could follow the example set by the Supreme Court in the Harmonisatiewet case where it signaled a violation of a fundamental legal principle while still applying the offending act of parliament.Footnote 140 By not practicing weak review, courts are as much shapers of the conventional position that Article 120 of the Constitution encompasses both strong and weak review, as they are followers. Instead of being followers, courts should arguably emulate the judgment when necessary to protect the Constitution. Arguments based on legislative primacy could then be used by the courts to decide the scope and intensity of their review, rather than justification for an absolute prohibition on review. In any event, weak review should at least require a more critical attitude in interpreting whether acts of parliament are in conformity with the Constitution, rather than simply giving the legislature the benefit of the doubt.Footnote 141 To do otherwise would be to emphasize a notion of the strict separation of powers not only superseded by treaty review, but one whose reliance on the doctrine of legislative primacy is open to sustained criticism. The need to ensure a living Constitution, relevant in its fields of composite application, is as much the duty of the courts as it is their executive and legislative partners. On this reading, there is no need for the courts to wait for weak review to be introduced, as the Cabinet hinted it might propose in reflecting on the report by the State Commission.
The path to reforming Article 120 of the Constitution of the Netherlands should start with the courts, and not with the legislature as has been the impression to date. The courts have an opportunity, and even a duty, to use weak review to build a solid practice of constitutional promotion and protection. The legislature could then choose how best to record the courts’ practice of such review, and whether its logic should be extended to include the strong review of acts of parliament.
True to the nature of amending the country’s Constitution, Article 120 is a prime candidate for developments in institutional practice leading to constitutional reform, instead of the other way around.
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