Suddenly the promise appears in many election manifestos. Judges must be able to test laws against the Constitution, the foundation for the rights and obligations of all citizens in the Netherlands. Abuses such as the Benefits Scandal might have been prevented, some advocates say.
The desire to enable constitutional review by judges has become fashionable in recent years, with NSC leader Pieter Omtzigt as the main advocate. Eleven parties currently in the House of Representatives, from the CDA to Volt, have the item in their election manifesto.
Currently, judges are not allowed to test laws against the Constitution. The idea behind this is that parliament itself can and must assess whether laws are in accordance with the Constitution.
But the depth of constitutional law knowledge has declined in both Houses of Parliament, according to criticism. Political considerations, sees Willem Korthals Altes (73), are becoming more important. “People pay less attention to the constitutional soundness of laws,” says the emeritus judge.
According to Altes, the negative consequences of this became clearly visible during the corona crisis. Then bookstores had to close their doors, unlike “stores that sell chocolate and wine.” He heard Prime Minister Mark Rutte (VVD) say that people can easily buy their books online. “There was no further discussion about it at all, while the closure was clearly contrary to freedom of expression.” Altes believes that the House of Representatives has grossly neglected its task as controller. In Belgium and Germany, countries with a constitutional court, bookstores remained open. There, the parliaments were “realized of the importance of fundamental rights,” he notes.
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Classical fundamental rights
The question of whether it is desirable for Dutch judges to be allowed to test laws directly against the Constitution has been debated for decades.
The testing ban is “not justified”, according to Geerten Boogaard. If only not, says the special professor of decentralized authorities, because Dutch judges have been allowed to assess directly against international human rights treaties such as the European Convention on Human Rights (ECHR) since 1953.
Proponents such as Pieter Omtzigt like to point out that the Netherlands is an odd one out: almost all European countries have some form of constitutional review. Scandinavian countries use ‘distributed review’, where all judges have jurisdiction. Belgium, Germany and France have a court that is exclusively responsible for constitutional issues.
The now outgoing Rutte-IV cabinet is in favor of a staggered review, ministers Hanke Bruins Slot (Home Affairs, CDA) and Franc Weerwind (Legal Protection, D66) wrote last year in a letter to Parliament. That would be better for the legal protection of citizens, because they will know more quickly where they stand. As far as the government is concerned, judges only test laws against classic freedom rights (such as freedom of expression and the right to privacy). Respect for this by the government is paramount, according to the cabinet; direct assessment of these fundamental rights means that the position of citizens vis-à-vis the government is best protected.
If politicians want to test laws in this way, the first chapter of the Constitution, which sets out fundamental rights, must be rewritten, says Hansko Broeksteeg, professor of constitutional law at Radboud University. The fundamental rights are formulated “very soberly and very concisely”, so that the judge hardly knows what to assess. For example, the right to privacy can be restricted through another law. But it says nothing about “how far that restriction may go.” Broeksteeg: “Then the judge must interpret all those provisions in order to be able to assess them. That’s what makes it so complicated.”
NSC leader Omtzigt agrees with Broeksteeg that “a number of rights and grounds for exceptions should indeed be written down more precisely.” As a solution, he proposes a general limitation clause on fundamental rights in the Constitution, in which proportionality is central. In a recently published collection about ‘good governance’ Omtzigt explains what proportionality must meet: the restriction must be effective for the intended purpose and citizens must experience as little inconvenience as possible in their lives.
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Information obligation
In addition to classical fundamental rights, judges will soon also have to be able to assess ‘organic’ constitutional provisions, Omtzigt believes. These are rules that regulate the relationship between governments and state bodies such as the government and parliament, for example the article that stipulates that a minister or state secretary must provide a Member of Parliament with requested information. Not a good idea, says judge Korthals Altes. “Then, as a judge, you run the risk of putting too much emphasis on politics.” Omtzigt points out that the obligation to provide information “can now only be enforced by a parliamentary majority with a vote of no confidence.” He therefore finds the article “often a dead letter” for opposition members.
The fear of politicization of the judiciary is justified, says Professor Boogaard, but should not be a reason not to allow assessment. “You can stipulate that judges may only test the Constitution in specific cases, and that they should also exercise restraint,” he suggests. “But in all cases, judges will have to answer the question themselves what ‘restraint’ means.”
Special court
Unlike the cabinet and many other political parties, Omtzigt wants to establish a special constitutional court. According to him, the consequence of a test could be that a law is “effectively rendered inoperative”. This requires “specialist knowledge” and should not be left to “a subdistrict court judge, for example”. Judge Korthals Altes can agree with this: “Practice shows that judges are insufficiently aware of the Constitution.”
Korthals Altes does see that awareness of international human rights treaties has grown in recent years, with the ECHR as the best-known example. That treaty also regulates classical fundamental rights. That is why opponents of constitutional review consider the wishes of Omtzigt and other politicians as “symbol politics”.
“Our Constitution deserves more than to be dismissed as symbolic politics,” responds Professor Boogaard. In addition, he says, the right to education and freedom of expression “are better regulated in our Constitution than in international treaties.” For example, the Constitution contains an explicit ban on censorship, the ECHR does not. And the constitutional freedom of education is also about the freedom to provide education, while the ECHR limits that right to receiving education. In that respect, citizens enjoy “slightly more legal protection”. Conversely, the ECHR regulates the right to family life, while the Constitution says hardly anything about it.
Legal experts warn against overly high expectations of this instrument. Professor Boogaard calls it “striking and nonsensical” that politicians sometimes suggest that the Benefits Scandal could have been prevented with constitutional review. “Judges in particular have failed here.”