News item | 21-02-2025 | 14:30
If people think that a law affects their fundamental rights, they must be able to have this tested by the judge. The government therefore wants to abolish the prohibition on testing laws against the Constitution. A special court must also come for this. As a result, fundamental rights of people are better protected. Minister Uitermark of the Interior and Kingdom Relations and State Secretary Struycken (Legal Protection) have sent their plans to the Senate and Lower House for this.
Minister Uitermark: “The Constitution is the most important law in the Netherlands. It is the Mother’s Act. The Constitution protects the fundamental rights of every Dutch person, such as freedom of expression and the right to equal treatment. In the Netherlands, the courts are not allowed to test laws against the Constitution. The Netherlands is the only European country where this is not allowed now. That is why we are taking an important step today to change this. We also set up a special court that will work with this. This is how we strengthen the position of the citizen towards the government. “
State Secretary Struycken: “We want to protect the fundamental rights of every Dutch person as well as possible. To make this protection tangible and visible, we want to set up a Constitutional Court: a specialized court to test laws against the Constitution. This court can give an opinion when there is reason to think that a law is contrary to freedom law from the Constitution, for example the freedom of expression, religion or education. At that time, the Constitutional Court is an extra safety net to protect the fundamental rights. “
Abolish prohibition on tests against the Constitution
Currently, judges are not allowed to test laws against the Constitution (Article 120). The idea behind this is that it is exclusively up to the legislator, and not to the court, to ensure that laws are not contradicting the constitution. The Netherlands is the only country in Europe where this prohibition applies, and the cabinet now wants to partially eliminate this prohibition. Judges can therefore test a law against so -called ‘classical fundamental rights’ from our constitution. For example, freedom of expression, education, religion, and the prohibition of discrimination. These are rights that protect people against the government. The cabinet is making a list of rights to which testing may take place.
For example, by lifting the ban, people can go to court if they think that a law is making a discriminatory distinction between men and women. They can also have it tested whether a law on religious education is not contrary to education or religious freedom. In countries where this is already possible, it appears that the possibility to go to court contributes to better legal protection. In Aruba, for example, after a decision of the Court of Appeal, marriage between people of the same sex is permitted, because judges ruled that the prohibition on that marriage was contrary to the prohibition of discrimination in the Aruban constitution.
Constitutional Court to protect people fundamental rights
In addition, the government wants to set up a special Constitutional Court to better protect fundamental rights of people. This must ensure a rapidly decisive judgment, so that the rights of people are effectively protected. In addition, a separate court makes the importance of the Constitution in our society very visible. The court may also receive other tasks. For example, it is investigated whether the Court can also start considering parts of the Constitution that deal with government bodies and the relationships in between.
The Court of Appeal will consist of 10 to 12 members who justify and impartial, such as other judicial authorities. These members are appointed for a maximum of 9 years, without the possibility of reappointment. This provides expertise and sufficient variety in the composition. People can go to every court if they believe that their fundamental rights are violated by the application of a law. This court can then make the request to the Constitutional Court to test this (a so -called preliminary ruling). This ensures that things with great social relevance are quickly clarity about the constitution of a law. Other things can often take off judges themselves, for example if an earlier guiding statement has already been made or if there can be no reasonable doubt.
Further elaboration and continuation
The cabinet outlines the plans in the contour memorandum. In the coming months she will discuss this further, for example with people from practice and researchers. We also look at countries where there is already a constitutional court. Then there will be a bill that will be brought into consultation this year. Because an adjustment of the Constitution is required for actual introduction, the parliament must vote on the plans in both this and in the next cabinet term.