Judicial Review in the Netherlands

Despite the criticism judicial review is used for more than two hundred years, every five decades the number of declaring an act unconstitutional rises. From the period of 1789 till 1888 21 federal laws and 79 state laws were declared unconstitutional. In another fifty years, from 1888 till 1952, the numbers rose extraordinary: 55 federal laws and 452 state laws. In the period 1953-2004 the number of unconstitutional state laws drops, but the number of unconstitutional federal laws grows: 97 federal laws, 436 status laws.
In the two hundred years of judicial review 175 federal laws and 1006 station laws were declared unconstitutional (1789-2004). “Numbers do not tell the entire story”. Should the Dutch follow the Americans then?

Since 1983 the Dutch Constitution includes article 120: judges are not allowed to check laws and treaties on their constitutionality. This prohibition goes back to 1848, in the first Dutch Constitution article 131 was implemented: “the laws are immune (onschendbaar).” In 1953 the Dutch Constitution (of 1953) included article 60: judges are not allowed to judge the constitutionality of treaties. These two articles have led to the system that nowadays judges are not allowed to check if laws are in accordance with the Constitution (article 120). At the same time the judges are allowed (and must) check if laws are in accordance with binding rules of treaties and decisions of international public bodies, like the European Union (article 94). Treaties are also excluded from the constitutionality check (article 120). It is a rather complicated and confusing system: formal laws (laws of the parliament) are the laws, which articles 94 and 120 are speaking about. Next to formal law there is material law, law from lower bodies like the county. The laws from the county are material law and therefore the judge is allowed to check if a material act is in accordance with the Constitution. If a contemplate thinks a formal act is conflicting with the Constitution, than the judge cannot put the formal law aside. In a nutshell: only formal law and treaty law is forbidden from the constitutionality check, but at the same time formal law has to undergo the treaty-check from for example the European Convention on Human Rights (“binding rules of a treaty”). Then why is judicial review forbidden?

Arresting is the fact that the Dutch government was advised to implement a narrow judicial review: formal law can be set aside when it is conflicting with chapter 1 (fundamental rights). In designing the Constitution the Staatscommissie-Cals/Donner approved the proposal of a narrow judicial review from the authors of the Proeve. Many authors supported a narrow judicial review. The Raad van State (the most important advisory institution of the government) advised negative. The government followed this advice and decided to leave judicial review (narrow or not) out of the Constitution. The parliament supported the government in this.

Since 2002 Femke Halsema is trying to create a form of judicial review. The Initiatiefvoorstel is founded on the same conception as the proposal of the Proeve and the Staatscommissie-Cals/Donner: the judge is allowed to check formal law on their accordance with fundamental rights laid down in the Constitution. It is a narrow judicial review. Do we need this kind of judicial review, now that treaties like the European Convention on Human Rights already protect the individual?

The key reasoning for not having judicial review is that it is the responsibility of the legislator to decide if a bill is in accordance with the Constitution. The maintenance of the Constitution is in the hands of the parliament and the government. If there is a dispute about the right interpretation of a law or a rule of a treaty in accordance with the Constitution, this dispute is to be settled by the legislator not by a judge. The judge cannot have supremacy over the legislator, because the expect of constitutionality of an act is more political than technical-judicial. This may be true, but it is contradictory that the judge is allowed to check law on their accordance with treaties (article 94). In the hierarchy of law treaties stand higher than the Constitution (article 93 and 94). This puts questions marks on the prohibition of judicial review: why is one allowed and the other not?

Article 94 is the result of the policy of the Netherlands. Treaties are seen as something of a higher order. Because they are so important and because they have to be able to work completely in the Dutch society the legislator has created article 93 and 94. If treaties and decisions of an international organisation have binding rules for individuals than these rules are automatically binding in the Dutch society: no transformation is needed (like it does in the United Kingdom). If a treaty rule (shortly said) is conflicting with formal law, than the think has to assign the formal act aside (article 94).

This creates the situation wherein an individual is protected by international human rights (ECHR) and not by its own Constitutional human rights, when his fundamental (human) upright is conflicting with a formal act. Many authors see this situation as an argument for judicial review. According to Belinfante the reason why there is this difference, is the following. Treaties have a ample spot of possibilities to narrow the fundamental rights. If a judge checks a formal act to a treaty than the judge will be more reserved than when he is checking the formal act with the Constitution. Because of this difference in the acts of the judge, the first is allowed and the second not. Belinfante argues this: the legislator has a sizable amount of freedom. With no check of the judicial branch, the legislator has a free pass. I contemplate this is a rather dramatic assumption: the fact that there is no judicial review does not mean that the legislator can do what he pleases. He has to follow the Constitution. According to Halsema it is possible that the legislator is making mistakes or is forgetting something while he is (trying to) following the Constitution. A contemplate is able to view the case in the light of present-day society, while a rule is set in a fragment of time. If the legislator has anticipated the changes in time, than the deem doesn’t have to disagree with the legislator. But when the legislator didn’t foresee in a situation, than a judge can make this straight. The judicial branch is able to consider the discussions of society. This is not only beneficiary for the individual seeking for a remedy, but it is also a way of updating the legislation. If the legislator disagrees with the judgements, because he did foresee the situation but didn’t want to implement it in the rule, he can accomplish new legislation. Authors point out the fear of losing legal certainty: different interpretation will circulate in the society, without knowing which one is the best interpretation. In order to prevent these confusing, it is better that it is the legislator who will decide on the matter of constitutionality. The defenders of judicial review argue this on their turn saying that it is better that the judicial branch should update laws than the legislator, because the latter will capture a lot of time.

Defenders of judicial review point out the increase of protection of rights when there is judicial review. The individual will be protected against the government. According to Halsema the judicial branch can judge on the matter of the right of the individual but also on the matter if the government has exceeded his powers (like delegation). She does not make clear in what sense the protection of rights will increase. Treaties already protect the rights. The narrow judicial review is than just a formality. To say that it is better to have the protection of the own constitutional rights is nationalism. Moreover the protection by treaties is more beneficiary. Not only is it more easily to go to the European Court of Human Rights, but also there is already jurisprudence on the different rights. In other words the connection between getting protection and the rights of a treaty is better.

Thomas Jefferson already has mentioned a big argument against judicial review: the judicial branch is not democratic legitimate. The people choose the parliament and the government, while the judicial branch is chosen for live. Halsema sees this as a spurious argument. As the time goes by legislation is becoming more a political instrument in the hands of the legislator: an instrument to pursue policy. Moreover the parliament is getting lesser power and control in the legislation process.

A last strong argument brings the perspective of comparison. In other countries judicial review is seen as a critical organizing provision for the binding of the legislator to the law. The other side of ‘the legislator is bound to the law’ is ‘the judge is plod to the law’. A judge is bound to the law, which is why it is necessary for the deem to follow the legislator.

Both sides have their ancient and strong arguments, but the question remains if judicial review is needed in the Netherlands. To be more trusty, should Halsema’s proposal be accepted? Halsema chooses for a narrow judicial review: judicial review for the fundamental rights protected by the Constitution. She chooses to execute judicial review as the right of every judge, instead of choosing one judicial review court. She defends this idea by pointing at other judicial systems in the world, like the United States. The United States gives the true to judicial review to more than one court. Looking at the judicial history of the United States, judicial review can be seen as a success.

I reflect it is better to resolve for one court or body. This will decrease the risk of having many interpretations circling in the society. It will overrule the argument of lawful certainty. I too believe that the democratic argument isn’t that strong. Definite the judges aren’t chosen democratically, but this has a reason: judges are very carefully selected and they are selected for their capability to be independent and contemplate just, not for their political opinions. If you say that it is unfair that a few people who weren’t chosen by the people may judge in a situation of constitutional rights, it must also be unfair in all other cases. Cases like fraud and murder. In other words: the democratic argument has to be against the whole judicial branch to be strong, not just against the fear of having judicial review. The fact that the judges are allowed to check formal law in accordance with treaty law and to check material law in accordance with the Constitution, makes the prohibition a uncommon rule. Why is it political when a judge checks a formal law on its constitutionality (fundamental rights laid in the Constitution)? Is checking formal law with fundamental rights of treaties not political? This is the big question: what is actually the contrast in the treaty rights and the Constitutional rights? I contain that the examine can be explained in favour of both sides. Because the judge is allowed to check if formal law is in accordance with treaty law, it must be allowed to have the same check in case of constitutional fundamental rights. On the other hand this doesn’t make sense: the individual is already protected (this isn’t a real argument in favour of the opponents of the judicial review). I see judicial review as a formality, we are already protected by treaties. Surely if the legislator breaches a constitutional right, the judicial branch can not only peruse at the breach but can also judge on the fact that it might have taken wrong formalities in account. There is no doubt that it is important to have judicial review: there should be a check of the judicial branch on the legislator and the executive branch. Because I believe the proposal of Halsema will not have a great impact on the individuals and because I believe, even if the proposal does have a large impact on the government, the judge will try to restrain himself as great as he can from speaking politics. Therefore the Dutch should approve the proposal of Halsema. One should see it as a second bulletproof vest, because one could never know.