The Dutch Supreme Court: a reluctant Positive Legislator?



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.5Means and Effects of Judicial Review

.5.1.Introduction


In this section we will offer a brief outline of the way in which dialogue between the courts, the parties of the individual case and the legislature is shaped. Particular topics include the specific procedures to attain a remedy for a human rights violation (including legislative omissions), specific injunctions concerning unlawful legislation, and the effects of decisions concerning rights review. Moreover, we will turn our attention briefly to the specific techniques the Supreme Court occasionally applies to mitigate the consequences of its lawmaking activities.

.5.2.Procedures available to Enforce Fundamental Rights Law


As we have said before, the Netherlands does not have a constitutional court. Consequently, there are no specific procedures for claimants to complain about infringements of fundamental rights. No Recurso de ampáro, habeas corpus or Verfassungsbeschwerde exist in the Dutch legal order. As we have noted before, this does not mean that the courts have no role to play when confronted with violations of (international) human rights. As long as the right in question is laid down in a self-executing treaty provision, the courts may review legislation for its consistency with such rights both in a direct and an indirect way.

The power for the ordinary and administrative courts to review legislative rules for their consistency with higher laws was already established in 1864.115 As we have discussed, rules of international law automatically take precedence over national rules and are therefore recognised as ‘higher law’ in the Dutch legal order. Should the courts conclude that national provisions are inconsistent with treaty law then, as we have seen, they must either interpret the provision in conformity with the treaty or, if that is impossible, set aside the national provision on the basis of Article 94 of the Constitution. The courts then apply either remaining national law or the norm of the treaty provision itself. This may ultimately lead to a remedy by way of granting the requested permit after all, awarding damages or acquittal of criminal charges, whatever the case may be. It is important, however, to stress that Article 94 of the Constitution does not empower the courts to declare statutes void. It only requires the courts to set aside individual provisions in individual cases.



Direct review of legislation is also a possibility, be it that it does not happen very often with regard to statutes. The bulk of both positive and negative legislating by the courts with regard to primary law takes place in procedures of indirect review. But having said that, it is certainly possible to start civil proceedings against the State for unlawfully enacting a statute. In a landmark judgment of the Supreme Court called Pocketbooks II, the Court ruled that Article 1401 of the Civil Code (currently Article 6:162), which concerns a general tort, was generally applicable to the legislative function of the government.116 Although successful appeals concerning the unlawfulness of primary legislation remain very scarce, it is by no means impossible that the Supreme Court may one day accept this kind of claim. In the 2001 (first) Pig farming Reform Act judgment, the Court was in any case prepared to review whether some of the Bill’s provisions constituted an unlawful act in the framework of Article 6.162 of the Civil Code, rendering the State liable for damages.117

.5.3.Remedies for Fundamental Rights Violations


The difficult question, however, is not whether the courts may accept a claim concerning the lawful enactment and application of an Act of Parliament, but the question rather is what remedies they may issue when they conclude the Act to be inconsistent with international law.118 Perhaps the least difficult remedy in this particular respect is the power of the civil courts to award damages for unlawful legislation. This may certainly be an option.119 Another available remedy concerns the power of the courts to issue a declaratory judgment to the effect that the enacted bill is unlawful, where the unlawfulness may of course arise from incompatibility with international treaty law. Such declarations may be made by all ordinary courts whether low or Supreme, and as we will see in the next section, they can formally only bind the parties in the case at hand. In practice, however, the binding force of such declarations is rather substantive. The courts may also issue an injunction to the effect that the government may not apply to the impugned Act. This is called buitenwerkingstelling (‘rendering inapplicable’). Like declaratory judgments and other decisions by the regular courts, this kind of injunction formally only binds the parties before the court.120 However, it is possible for interest groups, for example, to claim that the government be ordered not to apply the statute in question in any case.121 Third parties may therefore profit from such a judgment in the sense that applying the statutory provision in their cases would constitute another unlawful Act towards the original claimant.

There are also injunctions, however, which the courts consider themselves prohibited from applying. The courts do not have the power to annul Acts of Parliament or indeed any other kind of legislation. An injunction formally compelling the State to withdraw a particular piece of legislation – no matter how unlawful it is – cannot be issued.122 Such an order would be tantamount to quashing the provision, to which the courts have no constitutional power.

Another injunction the courts consider themselves not empowered to issue concerns the order to Parliament (or indeed any other legislator) to produce legislation where the inconsistency with higher law is a question of legislative omission rather than an express act.123 In its landmark judgment on this matter, the Supreme Court explicitly ruled that it could not issue such an order, even though the omission rendered the legislation incompatible with EC law and therefore unlawful.124 The Court ruled that the question whether the State should meet its international obligations and, if so, in what manner – was a political decision for Parliament. Furthermore, the question whether there ought to be legislation and, if so, what should be its content equally was a political matter on which the courts should have nothing to say.125 There is a curious paradox here, because on the one hand, the Supreme Court considers itself incompetent to order the legislature to enact or withdraw legislation because that would be a political matter, but on the other hand considers itself, as a matter of last resort, empowered to carry out its lawmaking duty to the extent that it issues positive legislation.126 Moreover, the Court has had no objection against warning the legislature that it might in the future carry out this duty if Parliament stayed inactive for too long a period. However, according to the Court, there is a clear difference between on the one hand setting aside a statute (and extensively interpreting it) and an order to Parliament to the effect that it should produce legislation. The difference is that the latter has a generally binding effect because the future legislation will of course have such an effect, whereas the effects of both setting aside the statute and interpreting it are, at least on a formal basis, limited to the parties at hand.

.5.4.Effects of Judgments


We will now describe briefly the effects court decisions regarding the interpretation of statutory law usually have. Such effects may have two dimensions. The first dimension concerns their binding nature. Do judgments of the courts, those of the Supreme Court in particular, bind the legislature, the government and other courts? We will deal here mainly with the distinction between effects erga omnes and inter partes, and the concept of res judicata in Dutch law. The second dimension relates to the temporal effects of courts decisions. We will outline those effects in the next section and while we are at it, try to give some impression of how the Supreme Court tries to mitigate the more far-reaching consequences of its judgments.

The first question is whether Supreme Court decisions concerning the lawfulness and the interpretation of statutory law in the light of fundamental rights have general (erga omnes’) effects. The simple answer is: they do not. First of all, the judicial system contains several columns which are not necessarily hierarchically subordinate to each other. The lack of any constitutional court having ultimate authority in that respect is clearly felt here. Moreover, as we have already outlined, the Dutch court system does not include a rule of judicial precedent.127 This means that the decisions of any court, including the Supreme Court, theoretically bind only the parties before it. Even within the ordinary judiciary, there is no formal obligation to follow Supreme Court precedents.128 On the other hand, as we have also remarked earlier, the practical effects of court decisions are not as meagre as they look at first sight, quite the contrary in fact. In the interests of equality and legal certainty, the courts generally observe each other’s decisions, particularly within the column of the ordinary courts where the lower courts are in fact bound by judgments of the Supreme Court. Even the administrative courts and the Supreme Court usually try to respect each other’s judgments, be it on a voluntary basis. There is then a relatively strong general effect. It has recently been argued that the Supreme Court has established this substantive approach in a judge-made rule, partly by using its doctrine on res judicata.129

To start with, the Court may of course reverse the decisions of the lower courts in its own columns, viz. the civil, criminal and tax divisions. If those courts do not observe the judgments of the Supreme Court, it will regularly make use of its power to do so. Problems arise primarily with respect to administrative law. Neither the Supreme Court nor the highest administrative courts exercises any true jurisdiction over each other. Neither is therefore forced to follow any case law of the other. In a series of judgments in 2004 and 2005, however, the Supreme Court considered itself bound by a ruling of the highest administrative courts to the extent that such a ruling determines the inapplicability of a legislative provision because of its inconsistency with higher law130 It did not matter whether the parties before the Supreme Court had been involved in the administrative procedure. Third parties were equally bound to this ruling of the administrative courts. Things may be different if the administrative court decides to declare the legislative provision consistent with higher law. In that case third parties – which had not been litigating in the administrative procedure – would not be bound to that ruling in the sense that they are allowed to bring an action in the civil court system.131

The question remains, of course, whether there is a similar rule compelling the administrative courts to give effect to the judgments of the Supreme Court. Although pleaded for by some scholars, there has not yet been any case law in that direction.132 However, one might argue that Supreme Court judgments generally bind the organs of the legal entity that is party to the proceedings. If the complaint about the unlawfulness of a legislative Act is brought forward in a direct action against the State, any organ of the state – including the administrative courts – should consider itself bound by a ruling of the Court. This argument does not apply, however, to the many cases in which a complaint against a statutory provision occurs indirectly in the course of proceedings before the ordinary courts. On the other hand, as we have said before, the administrative courts usually try to observe the rulings of the Supreme Court, irrespective of whether they consider themselves bound to them. It is therefore to be expected that they will comply with a ruling concerning the unlawfulness of legislation.


.5.5.Mitigating the Temporal Effects of Judgments


The other dimension concerns the temporal effects of Supreme Court judgments. Such judgments usually have retrospective effect in the sense that the courts have traditionally always assumed that any interpretation regarding the law they might arrive at is part of the law itself.133 In this, rather old-fashioned, view, it is not the court shaping the law but rather the court ‘finding’ the correct interpretation of the law as rightfully intended by the legislature.134 The Supreme Court was never very clear, however, about the classic temporal effects of its judgments. In the older case law it just implicitly assumed that its new interpretation had retrospective effect.135 As we have showed in the previous section the Court’s view of its own role as well as that of legal scholarship has changed over the years and from the 1970s onward, the Court has increasingly become more willing to mitigate the temporal effects of its judgments.136 As the Court embraced a lawmaking duty, it became possible to openly discuss the consequences of judicial overruling. The last few decades have therefore showed some examples of judicial prospective overruling. Legal literature distinguishes both ‘true’ prospective overruling and ‘qualified’ prospective overruling.137 One may speak of the true variant if the Court does not apply its new interpretation in the case at hand but rather postpones it to some time in the future. One uses the term ‘qualified’ prospective overruling when the Court immediately applies its new interpretation or rule, but limits the possibilities for other parties than those in the case at hand, to appeal to the new rule. An example of the latter provides the 1981 Boon v. Van Loon judgment, where the Court changed its case law on the ownership of pensions in divorce law.138 Here the Court explicitly limited the temporal effect of its new course to the case at hand and future cases. Where the divorce had already been pronounced, no appeal to the new rule would be possible.

As a clear example of the first option (‘true’ prospective overruling) might serve the classic case law concerning the Labour expenses deduction, we have elaborately discussed in the previous section.139 Here, the Court ruled that it would not – for the time being – intervene because doing so would entail choosing from different policy options. But it made it clear that it might think otherwise if the legislature knowingly persisted in its unlawful course. It remained therefore open for the Court to overrule its 1999 judgment in the future on the basis that it had informed Parliament of the unlawful nature of the provision in question. In the follow-up of this case, it moreover explicitly ruled that Parliament was not obliged to add retroactive effect to its subsequent amendments of the impugned Income Tax Act.140 This judgment also shows, however, that the Court is usually not prepared to fix a certain date before which the existing legislation should be amended. As far as we know, the Court has not yet done so anyway.141

A mixture of both options can be found in a similar decision of the Supreme Court in a case in which it ruled that the policy to exclude ministers’ official cars from Income Tax violated the principle of equal treatment.142 However, it temporarily limited the possibilities of third parties to invoke the case in their own dealings with the tax authorities. It ruled that, as long as the unequal treatment concerned a small privileged group and the government was unaware of the legal principle at stake, it would not allow complaints as long as it could be said that the tax inspector was unaware that he was treating taxpayers unequally. The Court effectively said that the government should immediately quit the impugned practice, but refused to accept the argument for the sake of the claimants in the case at hand.

These examples show that, the Court occasionally eases some of the ‘pain’ of extensively interpreting or setting aside a statute by prospective overruling. It has even explicitly recognised so in a recommendation it made to the government in 1991 on questions about lifting the ban on judicial constitutional review by amending Article 120 of the Constitution.143 It effectively pleaded for such an amendment and argued that the fear for infringements on the principle of legal certainty might be dispelled by pointing at the possible ways of mitigating judgments which could pose a threat to legal certainty.


.5.6.Judicial Reforms


In a recent report by members of the Supreme Court itself, concerns were expressed about the way in which the Court was forced to carry out its lawmaking duty.144 First of all, the commission responsible for the report emphasized the crucial role the Supreme Court had to play in the administration of justice and the development and, consequently, the creation of the law. It argued that the Court is currently flooded with cases that, from the perspectives of either legal protection of citizens or the development of the law, were of little importance. More importantly, however, the commission also drew attention to the fact that the Court was partly unable to fulfil its lawmaking duties because important cases might not necessarily reach the court or, if they do, reach it only after a lengthy period of time. The commission suggested two remedies. First of all, it pointed to an already existing instrument, which it thought would be worth using more extensively, which concerns ‘cassation in the interest of the law’ (cassatie in het belang der wet). The Procurator General at the Supreme Court may, under Article 78(6) of the Judicial Organisation Act, appeal to the Supreme Court on behalf of the government where both parties in the case are unable to do so and he is of the opinion that there is a need for a clear judgment by the Court. The judgment of the Supreme Court in such a case cannot affect the legal position of both parties in the case at hand, but it can provide clarity. Second, the commission pleaded for experimenting with a limited preliminary question procedure. This would allow a relatively speedy clarification of legal issues where there is massive uncertainty among the courts and the legal profession. Meanwhile, the Minister for Justice has expressed his endorsement of the proposals and has announced plans to establish a limited preliminary procedure in cases of mass claims.145 It remains to be seen how this development will affect the lawmaking role of the Supreme Court in due time. The reforms envisaged show however that both the Supreme Court itself and the responsible cabinet ministers openly acknowledge the positive lawmaking role of the Supreme Court.
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