The Dutch Supreme Court: a reluctant Positive Legislator?



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.2The Ban on Judicial Constitutionality Review and its Scope

.2.1.Article 120 of the Dutch Constitution


As a convenient starting point for a debate on rights review in the Netherlands might serve the fact that the Netherlands does have a written constitutional document, which – like in Germany – is literally called the Basic Law (‘Grondwet), but which is usually translated as the ‘Constitution’. It is a relatively sober document, outlining the system of government. The first chapter is devoted to civil liberties and social rights. Chapter six includes some provisions on the administration of justice. As we have already mentioned, the traditional cornerstone concerning the constitutional position of the courts in the Netherlands is Article 120 of the Constitution, which reads:

‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts’.12

The message this provision contains is threefold. First and foremost, there is to be no judicial review of the constitutionality of statutes.13 This means that there is no role for the courts to play when it comes to deciding either whether a certain statutory provision is in breach with the Constitution or whether the legislative process followed the correct procedural rules.14 Such matters are to be left to the legislature, which in the Netherlands is composed of both the government (i.e. the Queen and the Cabinet) and the First and Second Chambers of the parliament, or the ‘States General’ as it is properly called.15 We will henceforth use the terms Parliament and legislature interchangeably.

The term ‘constitutionality’ in Article 120 is to be interpreted broadly. The courts assume that they are not only banned from determining the unconstitutionality of statutes, but equally from declaring them incompatible with the Kingdom Charter16 or general principles of law.17 They might occasionally refuse to apply a certain statute by reference to the fact that such an application violates a legal principle.18 However, they can do so only where there are exceptional circumstances which the legislature did not expressly consider at the time of passing the act. In such cases the refusal to apply the law does not in itself affect the binding nature of the Act in question. The courts then assume that Parliament would most probably have wanted them to ignore the statute. This was for instance the case in 1989, when a group of short-term civil servants were promised a pension benefit which, at the end of the day, the administration was not prepared to award them. In the Short-term volunteers case, the government argued that the pensions of civil servants were carefully regulated by parliamentary legislation. As the Act in question had not incorporated the promise, the denial of the benefit was a matter of parliamentary legislation and the courts were not allowed to have a say on the matter.19 The Court decided differently and allowed the appeal. It considered that Parliament had not deliberately refused to meet its obligations and that the Court was thus in a position to disapply the statute in question.

Even if no such situation arises, the courts are not prevented from expressing their views on the issue put before them. In the 1989 Harmonisation Act judgment – its landmark case on Article 120 – the Supreme Court maintained that it was clearly not entitled to review whether an Act of Parliament was compatible with legal principles but it made it painfully clear that – had it been allowed to do so – it would have ruled that the 1988 Harmonisation Act violated the principle of legal certainty. The court thus gave the legislature some piece of, what might properly be called, ‘expert advice’ and the latter, taking the hint, eventually changed the law. The ban on judicial review of legislation then does not prevent the judiciary to engage in a dialogue with the legislature, be it that such occasions remain rare.

Second, the prohibition against primary legislation review that Article 120 imposes on the courts is a narrow exception to the general rule that the courts are in fact competent to test any provision for its consistency with rules of higher law including general legal principles.20 Courts may therefore decide upon the constitutionality of ministerial decrees and administrative, provincial or municipal regulations. The competence to do so was already established in 1864 by the Supreme Court.21 A third message to be read in Article 120 of the Constitution is that the courts may not review written international law for its compatibility with the Dutch Constitution. This effectively means that in the Dutch legal order, treaties take precedence over any kind of national law including the constitution itself. Article 120 is complemented by Article 94 of the Constitution, which basically states that any law (including the Constitution itself) which is incompatible with justiciable provisions of treaties is not to be applied. Quite apart from Article 120, the Courts also consider themselves banned from deciding upon the constitutionality of European Union law. The Supreme Court has completely accepted the absolute supremacy of EU law over national law, emphasizing that the effect of EU law in the Dutch legal order is a matter of the Community rather than the national Constitution.22 As we will see, this has great consequences for the role of the courts.


.2.2.Summary


The conclusion of this brief introduction to Article 120 of the Constitution may be that – as a general rule – it formally bans the courts from reviewing whether Acts of Parliament are compatible with higher law, with the notable exception of self-executing treaty provisions. Sometimes the courts do express their views on the constitutionality of primary legislation and consider themselves entitled to refrain from applying unconstitutional legislation on the basis that Parliament would not have wanted them to apply it in view of exceptional circumstances in a particular case. They are moreover empowered to review any other piece of legislation for its constitutionality and may review Acts of Parliament for their compliance with written provisions of international law to the extent that these provisions provide judicially manageable standards for review. This has practically led to a situation where international human rights law (most notably the ECHR) has taken over the role as the most important civil rights charter for the Netherlands. Judicial review – whether of legislation or of executive action – is primarily focused on the European Convention, the International Covenant and some other human rights treaties. As we limit our discussion here to judicial review of parliamentary legislation, we will from now on focus primarily on the role of the courts in reviewing on the basis of these treaties. We will therefore proceed with a discussion of the constitutional framework for the implementation of international law.
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