Constitution of the Netherlands

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Constitution of the Netherlands
Overview
Original title(in Dutch) Grondwet voor het Koninkrijk der Nederlanden van 24 augustus 1815
Jurisdiction 
Executive
Prime Minister-led Council of Ministers responsible to the House of Representatives
FederalismUnitary
Electoral collegeNo
Last amended22 February 2023; 13 months ago (2023-02-22)
SupersedesGrondwet van den Staat der Verëenigde Nederlanden (1814)

The Constitution of the Kingdom of the Netherlands (

parliamentary democracy
. In 1983, the most recent major revision of the Constitution of the Netherlands was undertaken, almost fully rewriting the text and adding new civil rights.

The text is sober, devoid of legal or political doctrine and includes a bill of rights. It prohibits the judiciary from testing laws and treaties against the constitution, as this is considered a prerogative of the legislature. There is no constitutional court in the Netherlands.

The Kingdom of the

Statute of the Kingdom of the Netherlands. Sint Maarten is the only country in the kingdom of the Netherlands that has a constitutional court
to govern the Sint Maarten legislature

History

The first constitution of the Netherlands as a whole, in the sense of a fundamental law which applied to all its provinces and cities, is the 1579 constitution, which established the confederal Dutch Republic. The constitution was empowered by the Union of Utrecht, thus by treaty. Article XIII of the treaty granted each inhabitant of the Republic freedom of conscience.

After the French invasion of 1794 the Batavian Republic, a unitary state, was proclaimed. On 31 January 1795 it issued a bill of rights, the Verklaring der Rechten van den Mensch en van den Burger. On 1 May 1798 a new constitution, the first in the modern formal sense, the Staatsregeling voor het Bataafsche Volk, written by a Constitutional Assembly, went into force, approved by the National Assembly. The Napoleonic Kingdom of Holland, a constitutional monarchy, was established by the Constitutie voor het Koningrijk Holland on 7 August 1806. In 1810 the kingdom was annexed by the French Empire.

Establishment of the Kingdom of the Netherlands

After the French troops had been driven out by Russian

right of petition and freedom of the press as its main points. In the Treaty of London of 1814 the Allies had ordered that the original Dutch state would devise the new constitution. It had been approved by the new States General (consisting of 55 members) of the Northern Netherlands, but rejected by the majority of appointed electors (796 against 527) of the Southern Netherlands. As 126, however, had indicated that they were against because of the (by them still considered too limited) freedom of religion, which was mandatory under the Treaty of Vienna
that ordered the union of the Northern and the Southern Netherlands, their votes and those of the men having refused to vote, were added to the minority, and by this infamous "Hollandic Arithmetic" William felt justified to proclaim the new kingdom.

Regarding the government's political structure the 1815 constitution did not diverge much from the situation during the Republic: the 110 members of

Friesland) and the city councils were appointed by electoral colleges which were in turn elected by a select group of male citizens of good standing and paying a certain amount of taxes, so indirectly there was a modicum of democracy introduced to the system. Generally, however, the administration was monarchical, with the king appointing for life the members of the Senate
, the "First Chamber", that mockingly was called the Ménagerie du Roi. In 1840, when a new revision was made necessary by the independence of Belgium, a first step to a more parliamentary system was taken by the introduction of penal ministerial responsibility.

Constitutional Reform of 1848

A plaque commemorating the actions of William II during 1848.

The constitution as it was revised on 11 October 1848 is often described as the original of the version still in force today. Under pressure from the

privacy of correspondence, freedom of ecclesiastical organisation and the freedom of education
.

Expansion of suffrage

In 1884 there was a minor revision. In 1887 the census suffrage system was replaced by one based on minimal wealth and education, which allowed an ever-growing share of the male population to be given the right to vote; therefore this provision was at the time nicknamed the "

caoutchouc
-article". The election interval for the House of Representatives was changed from two (with half of it replaced) to four years (with full a replacement of now hundred members). Eligibility for the Senate was broadened. Any penal measure not based on formal law was prohibited.

In 1917, like in 1848 influenced by the tense international situation, universal manhood suffrage was introduced combined with a system of proportional representation to elect the House of Representatives, the States-Provincial and the municipality councils. The Senate continued to be elected by the States-Provincial, but now also employing a system of proportional representation, no longer by majorities per province. The Christian democratic parties agreed to universal manhood suffrage in exchange for a complete constitutional equality in state funding between public and denominational schools, thus ending the school struggle. By the revision of 1922 universal suffrage was explicitly adopted in the constitution, after it had already been introduced by law in 1919. Each three years, half of the members of the Senate were to be elected by the States-Provincial for a period of six years, using a system of proportional representation.

Later revisions

In 1938 there was a minor revision, introducing some elements of the then fashionable corporatism by giving a constitutional base to public bodies regulating sectors of the economy. A proposal to make it possible to impeach "revolutionary" members of representative bodies, directed against communists and fascists, failed to get a two-thirds majority.

After

junior minister but one fully subordinate to a certain minister. In 1953 new articles were introduced concerning international relations, as the Netherlands was abandoning its old policy of strict neutrality. In the revision of 1956 the constitution was changed to accommodate the full independence of Indonesia. The number of members of the House of Representatives members was brought up to 150, of Senate members to 75. The revision of 1963 accommodated the loss of Dutch New Guinea to Indonesia. The voting age
was lowered from 23 to 21. In 1972 there was a minor revision; the main change was a lowering of the voting age to 18.

In 1983 the constitution was almost entirely rewritten. Many articles were abolished.

.

In 1987 there was a minor revision. In the revision of 1995 the introduction of a professional army, replacing the conscript army, was regulated. In the revision of 1999 a proposal to introduce an

advisory referendum
was rejected by the Senate. After a minor revision in 2002, the last changes were made in 2005; a proposal to introduce an elected mayor was rejected by the Senate.

Revision

There are substantial safeguards to prevent carefree revision of the constitution. A revision of the constitution is submitted to both chambers of the States General, the House of Representatives and the Senate where the proposed revision has to pass with a (normal) majority. The proposed revision needs to be subsequently be supported by both chambers with a 2/3 majority, after general elections for the house of representatives (in practice most revision are submitted shortly before planned elections). The general elections and the new house of representatives guarantees citizens can indirectly vote for or against a revision.

Content

Systematics and terminology

Civil law systems are characterized by their emphasis on abstract rules and methodology. Since the

Code Napoleon
remained basically unchanged, into a completely new set of modern codes. There has been a general tendency to strive for economy of style, clarity of expression, conceptual coherence and unity of terminology. The complete revision of the Dutch constitution in 1983 is part of this process. Combined with an absence of explicit legal doctrine the result can be deceptive, as the simple phrasing hides the underlying implicit doctrine.

Because there is no Constitutional Court testing laws and acts against the constitution, much of the systematics are centered on the problem of

bill
.

Chapters

Chapter 1: Basic rights

Chapter 1 is mainly a

normative hierarchy
indicated by the constitution: all basic rights are principally equal in value and importance. Some rights are absolute, most can be limited by parliamentary or "formal" law, many can be limited by delegation of limiting powers. They include:

In addition to these classic rights the revision of 1983 introduced a number of social rights. The distinction between the two categories is not strictly based on any legal doctrine and in fact the social right articles contain many freedom rights. The social rights are:

  • Right to counsel (Article 18). Subarticle 1 contains a freedom right: anyone has the right to be legally assisted or represented in court or during administrative appeal. This right is absolute and cannot be limited by law. Nevertheless, the law may impose qualification requirements on legal representatives so that e.g. only attorneys are allowed to represent. Subarticle 2 contains the right to legal aid for the destitute. The right can be limited by formal law; delegation is allowed. However, doctrine holds that the State has an absolute duty to provide a minimum of legal aid.
  • asylum seekers
    .
  • Welfare of the people (Article 20). Subarticle 1 imposes a duty upon the government to ensure the subsistence of the population and an adequate distribution of wealth. Subarticle 2 demands that laws are made concerning the entitlements to social welfare. Delegation is allowed. Subarticle 3 contains a right to welfare for the destitute. The right can be limited by formal law; delegation is allowed. The government has a duty to make a law implementing the right. The right is limited to those Dutch nationals living in the Netherlands.
  • Environmental protection (Article 21) This article imposes a duty on government to ensure the habitability of the land — including the general infrastructure and especially the vital sea-defences — and the protection and improvement of the environment. Doctrinal consensus holds that "improvement" implies that government is not allowed to make environmental laws much less strict.
  • Health, housing, culture and recreation
    (Article 22). This is a basket article combining rights that were too important to remain unmentioned, but too unimportant to warrant a separate article status. Subarticle 1 imposes a duty upon government to improve public health. Subarticle 2 does the same for living conditions and subarticle 3 for "cultural self-realisation" and recreational activities.
  • Freedom of education (Article 23). The
    Catholics and eventually socialists on the other hand.[2] In 1889 a system of school funding for denominational schools was introduced; in the revision of 1917 this was formalised by a guarantee of full constitutional equality between public and special schools: the Pacification. Even in 1983 this issue remained so sensitive that government and parliament failed to reach consensus over a changed redaction. As a result, Article 23 remained unchanged. It is therefore outside of the uniform terminology and systematics of the renewed constitution: some elements of Article 23 are absolute rights, others can be limited by law, for some this limitation can be delegated to lower administrative bodies — but it is impossible to understand from the article itself what is the situation for each element; this can only be learned from case law and doctrine. Absolute is the right to education itself (subarticle 2), the equality between public and special schools and the duty of the State to finance them all. The right to education is primarily a right to give education of any kind; the right to be educated is seen as derived; parents are free in the choice of schools. The right implies the right to found schools, the right to freely choose their underlying religion or philosophy of life and the right to organise them in accordance with such religion or philosophy. So not all "special" schools are denominational; some are e.g. anthroposophic or platonist. All have to be funded by government and with the strictest equality (subarticle 7); until recently law stated that this equality was nominal, meaning that if a municipality spent a certain sum per student in public schools, exactly the same sum had to be spent in its special schools. The right can be limited by formal law in that minimal quality requirements can be imposed (subarticle 5), both as regards the level of education and the standard of organization. Some of this power is in fact delegated to lower bodies; one of the breaking-points in 1983 was the refusal of parliament to express this in the constitution. The duty of State to (equally) fund is limited to free compulsory education (presently until the age of sixteen); Subarticle 7, however, states that law will specify the conditions under which non-compulsory education will be funded; unsurprisingly there is in fact in this field also strict equality. Subarticle 1 expresses the social right that education in general is an ongoing concern for the government; Subarticle 4 states that municipalities have the duty to provide for sufficient primary schools
    .

Chapter 2: Government

Dutch constitutional doctrine holds that the

Head of Government, but embodies it fully. The King is, however, head of state
, and so a special paragraph is dedicated to the King in this quality.

§1: King

Article 24 stipulates that there is kingship and that this kingship is held by

House of Orange) (Art. 39); its payment (Art. 40) and the organisation of the royal household
by the King (Art. 41).

§2: King and ministers

Article 42 states the main principles of Dutch government: that it is formed by King and ministers (Subarticle 1) and that "the King is inviolate; the ministers are responsible" (Subarticle 2). Before 1848 the inviolacy of the King was interpreted as a judicial one: he could never be tried in court for whatever reason. This is still so, but

ministerial responsibility implies there is since the revision of 1848 primarily a political inviolacy. This means that the King cannot act in a public capacity without ministerial approval: externally the governmental policy is always represented by the responsible minister who, should he feel that the King's personal influence in it threatens to become too predominant, has to resign if he cannot prevent it; what happens internally between King and ministers is the Crown Secret, never to be divulged.[citation needed] What little of it nevertheless has come to the public attention, shows that the common conception that the kingship since the reign of William III of the Netherlands has in fact been almost fully ceremonial, is not supported by the facts.[citation needed] Often it is assumed that there is a "derived ministerial responsibility" for all members of the Royal House.[citation needed
]

The

secretaries of state (Article 46); these are subordinate to a certain minister who is fully responsible for their acts (Subarticle 2). All laws and Royal Decrees have to be countersigned by the responsible minister(s) or secretaries of state (Article 47). The countersign has been mandatory since the revision of 1840. Since 1983 such laws and decrees also have to be affirmed by a signed affirmation; it is usually assumed these acts coincide. All ministers and secretaries of state have to swear an oath of purification
(declaring to not having bribed anyone to obtain their office, nor having been bribed to commit certain acts when in office) and swear allegiance to the Constitution (Article 49).

The individual ministers do not have a (general) executive power, other than that which is attributed to them by special law.[citation needed]

Chapter 3: States General

§1: Organisation and composition

Article 50 states that there are

States Provincial
(Article 55).

To be eligible to be elected it is necessary to be of Dutch nationality, to be over eighteen in age and not to have been excluded from the right to vote (Article 56); there are also certain incompatibilities of function (Article 57), the most important of which is that a minister not belonging to a demissionary cabinet cannot be a member of the States General, a stark contrast with the situation in

political dualism of Dutch politics. The Houses investigate the Letters of Credence
of new members, in this case a written affirmation by the central voting office that they have indeed obtained the necessary number of votes. After the investigation new members swear four oaths: the oath of purification, the oath of allegiance to the Constitution and the oath of loyal discharge of their office are demanded by Article 60; the oath of loyalty to King and Statute is demanded by Article 47 of the Statute of the Kingdom, the higher Constitution of the Realm. All other issues pertaining the elections are regulated by formal law; delegation is possible (Article 59).

Each House appoints its own President from its members (Article 61) and a clerk, not from its own members; no officials of the States General may be member of the States (Subarticle 2). Law regulates the remuneration of the members; delegation is possible; such law can only be approved by a two-thirds majority (Article 63).

Article 64 states that government can dissolve each House by Royal Decree. Within three months elections have to be held (Subarticle 2). The duration of a new House of Representatives after dissolution is determined by law and not to exceed five years (Subarticle 4). The dissolution only takes effect when the new House meets, to avoid a period without representation. Dissolution of Parliament was in the 19th century an instrument for government to decide a conflict with the House of Representatives by submitting the issue to the voter. Unwritten law developed between 1866 and 1868 that this should not be done more than once over the same issue. The last instance occurred in 1894. In the 20th century such "conflict resolution" was replaced by "crisis resolution" whenever a political coalition fell apart and could not be reconciled; the government then resigns and instead of trying to find a new coalition majority, decides on holding new elections, normally in accordance with the wishes of parliament itself. Earlier typically an "interim cabinet" was formed to arrange for the elections, but this hasn't happened since 1982.

§2: Procedures

Article 65 states that the parliamentary year is opened on the third Tuesday of September (

roll call
; no member may abstain.

The States General have an absolute

right to information from the government in writing or in person, only constitutionally limited by State interests, such as the national security (Article 68). Doctrine holds that there can also be "natural impediments" justifying that a minister fails in answering questions, such as the circumstance that he simply doesn't know the answer, that he has already answered or that he is about to answer much more completely by issuing a written report on the question. Another doctrinal limitation is the ministerial responsibility: a minister is not obliged to give information about a subject for which not he is responsible but his colleague. Government members have access to the sessions and can freely partake in the discussions (Article 69); they can also be invited to do so by the Houses (Subarticle 2). Such an invitation is in fact an order: government members are not at liberty to refuse. They do however have the right to invite any expert to assist them in the discussions (Subarticle 3). All persons partaking in the deliberations of parliament or in the parliamentary commission meetings have legal immunity regarding any communication they made, either in speech or in writing (Article 71). Otherwise the members have no parliamentary immunity
.

The States General have the

Second World War
, lasting from 1947 till 1956.

The Houses each determine their own Rules of Procedure (Article 72). As the legislative is in the Netherlands formed by parliament and government in cooperation, these Rules of Procedure are not formal laws but have a sui generis "legal" status.

Chapter 4: Council of State, Court of Audit, National Ombudsman and Permanent Advisory Colleges

Chapter 4 covers certain other

ministerial responsibility
he in fact only does so on special occasions: normally the current chairman is the vice-president of the council, some times by journalists called the "Viceroy of the Netherlands". The probable heir becomes a member of the Council when he reaches the age of eighteen and often does attend the meetings. Law can give other members of the Royal House the right to attend; it in fact determines that they nor the heir have voting powers. The members of the council, the Staatsraden, are appointed by Royal Decree for life (Subarticle 2); they can be dismissed on demand by Decree, or in cases determined by law by the Council itself, and law can determine an age limit (Subarticles 3 and 4). The competence, organisation and composition of the council are regulated by law; delegation is possible (Article 75). This competence may exceed the functions indicated in Article 73; in this case no delegation is allowed (Subarticle 2). The number of Staatsraden is determined by law at a maximum of 29 ordinary members and 50 extraordinary members.

The second is the

Court of Audit (Algemene Rekenkamer). Its task is to perform financial audits (Article 76). The members are appointed for life by Royal Decree from a shortlist of three, proposed by the House of Representatives (Article 77). They can be dismissed on demand by Decree or when reaching an age determined by law (Subarticle 2); or dismissed by the Supreme Court in certain other cases determined by law (Subarticle 3). Law determines the organisation, composition and competence of the Court of Audit (Article 78); delegation is possible; this may exceed the functions indicated by Article 76; in this case no delegation is allowed (Subarticle 2). In fact the Court of Audit not only performs financial audits but also "value for money" efficiency analyses; it also reports on the effectiveness of all governmental policy via performance audits. Dutch legal doctrine believes in a clear distinction between efficiency and effectiveness reports and this is reflected in two separate types of investigation carried out. The budget as such is always officially approved, be it with "comments" when irregularities have been discovered; these then have to be remedied by special law. The effectiveness reports, carried out in great detail, in full independence and without the slightest regard for political sensitivities, have given the Court of Audit a large political influence, even more so than the British National Audit Office
.

The third is the National Ombudsman, a relatively new function; he may investigate by his own initiative or on request of anyone, the actions of State bodies or other governmental bodies indicated by law; this indication can be delegated (Article 78a). The ombudsman and his substitute are appointed by the House of Representatives for a certain period of time, to be determined by law. They are in any case dismissed by the House of Representatives on demand and when reaching a certain age (Subarticle 2). Law determines the competence of the ombudsman and the way he proceeds; delegation is allowed (Subarticle 3). His competence may by law be determined to exceed that given in Subarticle 1; delegation is allowed (Subarticle 4) — in contrast with the arrangement given for the Council of State and the Court of Audit.

The constitution has a general Article 79 founding the establishment of other advisory bodies, the "permanent advisory colleges". The law regulates the organisation, composition and competence of these bodies (Subarticle 2); other competences than mere advisory ones may be attributed by law (Subarticle 3); in both cases delegation is allowed. There used to be a great many of these advisory bodies; after 1996 their number was brought back to a few to economise. The advice of all bodies indicated in Chapter 4 is in principle public; the law regulates the way it is published; delegation is allowed (Article 80); it is submitted to the States General (subarticle 2).

Chapter 5: Legislation and Administration

§1: Laws and other prescripts

The Legislative is formed by Government (i.e. King and ministers) and the States General in cooperation (Article 81), although the term "legislative" is not actually used: the article simply states that government and the States General together make laws. This means that the Dutch concept of "formal law" cannot simply be equated to "Act of Parliament", as government and parliament act in unison in creating laws. In the Dutch constitutional system there is no decisive referendum, although sometimes consultative referendums are held, like the one in 2005 in which the people advised to reject the European Constitution; the Dutch people is thus not a direct lawgiver.

Bills are presented by the King or by the House of Representatives, which thus has the

right of initiative (Article 82). Some bills have to be presented by the States General in United Assembly (subarticle 2). The Senate cannot propose law. The ministers can but in fact act through the King who sends a Royal Missive (Article 83), containing the proposal, which is only signed by himself, thus without countersign. The House of Representatives has the right of amendment; government too may amend
(Article 84). The Senate only can pass or reject laws in full (Article 85), defended by the responsible minister or by members of the House of Representatives having taken the initiative to propose the law; however, in practice it can send the proposal back asking for a novelle to be passed by the House of Representatives, in fact an amendment of law. Bills may be withdrawn by the proposer until passed (Article 86), but only by a majority of the House of Representatives if the bill has been presented by some members of the House of Representatives and has been passed by the House of Representatives. Bills become valid law once they have been passed by Parliament and have been affirmed by the King (Article 87). It is generally assumed that this also fulfills the demand of signature by Article 47. The affirmation needs sign and ministerial countersign but also the older Royal Order has to be signed and countersigned, ordering to publish the law in a special publication, the Staatsblad van het Koninkrijk der Nederlanden (Bulletin of Acts, Orders and Decrees of the Kingdom of the Netherlands, also called Bulletin of Acts and Decrees). Only after such publication the law has an external binding force (Article 88).

In the Dutch constitutional system there is not only formal law; also other general governmental regulations are recognised, binding the citizen; the overarching concept is called "material law". These other regulations are the "other prescripts" mentioned in the heading of §1. Only the most important subcategory of these is explicitly mentioned in the constitution, in Article 89: the Algemene maatregelen van bestuur, "General Administrative Orders". To avoid doctrinal strive over what orders exactly are covered by this concept, a consensus has developed that a strict formal definition can be applied: all general orders made by Royal Decree (Subarticle 1) that have been submitted to the Council of Ministers and to the Council of State and have been published by the Staatsblad, are General Administrative Orders. Since the Second World War a doctrinal consensus has gradually developed that all general Royal Decrees have to conform to these conditions to be valid and that earlier practices to issue general Royal Decrees without meeting these three formalities — such Decrees, general or otherwise, are called "minor Royal Decrees" — can no longer result in regulations with binding force towards the citizen. Since 1889 the constitution determines that all prescripts with a penal character have to be based on formal law and that this law imposes the penalty (Subarticles 2 and 4). This includes the Royal Decrees and thus the General Administrative Orders. A doctrinal consensus has developed, however, that all General Administrative Orders, not just those with penal content, have to be based on formal law to be valid, with the competence to regulate delegated by such law.

§2: Other prescripts

The second paragraph of Chapter 5 contains several articles of disparate administrative content; but they are not the same as the "other prescripts" of §1; the redaction of the headings is generally seen as confusing and infelicitous on this point. Most articles in §2 are combined in coherent groups.

The first of these groups consists of articles pertaining to international law and treaties. Article 90 states that it is the duty of government to promote the international

European Community decisions having force of treaty have to be approved by Parliament prior to even the conclusion itself. By treaty legislative, administrative and judicial powers may be conferred on organisations established under international law (Article 92). This has been done on many occasions, e.g. on the Benelux, the European Community, the United Nations, the Council of Europe and NATO
.

According to present doctrine, that of "treaty monism", treaties are in the Dutch legal system in principle self-executing; no special transformation is needed by implementing special law, as in countries with a "dualistic" system (such as the United Kingdom). However, when the present articles covering this subject were last revisioned, in 1953, doctrine was divided and some defended a more dualistic position, that of "limited monism". They demanded the constitution to be neutral on this issue and this has led to some infelicitous results. Government originally intended that Article 93, stating that treaties of a generally binding nature would only have such binding force after they had been published, to be simply a safeguard, protecting the citizen against duties imposed on him by such treaty. However, the "limited monists" held that only such published treaties are self-executing and that thus Article 93 is the basis for all treaty monism; to appease them government stated that the article should in any case be read as covering also the treaties conferring rights on the citizen and imposing duties upon government. The unintended result was that government might thus in principle withhold rights to the citizen by not publishing the treaty. Article 94 determines that legal prescripts are inapplicable if they conflict with treaties of a generally binding nature. This means that laws can be tested against treaty norms and obligations. Dutch courts have however been very reluctant to do so, limiting this to cases where government has been left no freedom of policy at all by the treaty, or to severe formal and procedural defects. The case law is very complex and contradictory, complicated by the fact that the phrase "generally binding nature" is assumed to have exactly the same meaning in both articles. Article 95 states that law regulates the publication of treaties or (binding) decisions of international organisations; delegation is allowed.

A second group of articles consists of those pertaining to the national security. Before the revision of 1983 these were combined in a separate Chapter 10; the articles as such remained largely unchanged in 1983, but were finally fully revised in 2000. Article 96 states that a prior approval of the States General is necessary for the government (since 1983 no longer the King) to declare that the Kingdom is in a

civil defence; the older legal system regulating this issue had been largely abolished since the end of the Cold War. Delegation is allowed. Government has to inform the States General about any intended foreign deployment of Dutch forces outside of defence treaty obligations, thus to protect the international rule of law and for humanitarian missions (Article 100). In an emergency situation such information can be given after the facts. Both government and parliament tended to present this duty as a kind of implicit approval, as parliament could in principle force government to call off the mission, but the Council of State has made clear this is at least formally not the case. Article 101 (mobilisation) has been abrogated in 1995, Article 102 (defence budget and prohibition of billeting) in 2000. Article 103 states that law has to determine in which cases a Royal Decree may declare a state of emergency
to maintain external or internal security; delegation is allowed. The powers of lower administrative bodies can be limited; the basic rights expressed in Articles 6,7,8,9, 12 Subarticle 2, 13 and 113 Subarticle 1 and 3 can be infringed upon (Subarticle 2). Royal Decree may end the state of emergency. The States General decide in United Assembly whether the state of emergency must be maintained, immediately after its declaration and as often as they see fit afterwards (Subarticle 3).

The third group consists of articles pertaining to financial issues. Imposed taxation must be based on formal law (Article 104). Delegation is allowed. However, to indicate this must be done hesitantly, parliament insisted on a slightly different terminology: instead of krachtens de wet, the phrase uit kracht van wet was used; both mean "by force of law" or "pursuant to law"; but the second expression puts somewhat more emphasis on the force of the law and thus on the fact all delegation is ultimately derived from law. A yearly budget is on Prinsjesdag presented to the States General, its balance sheet approved by the Court of Audit (Article 105). Delegation is not allowed. The budget debates are held by the House of Representatives, with a separate treatment of each departmental budget and of special interdepartmental budgets; since 1971, the Senate immediately approves the budget formally in exchange for full policy debates. Article 106 states that formal law regulates the monetary system. Delegation is allowed. The article has lost its relevance by the introduction of the euro in 2002; doctrine holds that the constitution does not demand a purely national system.

A fourth and last group of articles pertains to judicial issues. Article 107 is the "

public access to information
regarding governmental activities. Delegation is allowed. The government does not see this as some general "right to public access to information" and this has been the reason not to insert it into Chapter 1, but this interpretation is quite popular in doctrine as the right does even more resemble a freedom right than a social right.

Article 111, the last of this paragraph, stands alone; it determines that formal law shall instate honorary Royal Orders of Knighthood. These are in fact the

The Order for Loyalty and Merit
. Each year many thousands are honoured by the constitutional orders.

Chapter 6: Administration of justice

This chapter regulates the Dutch

Trias politica, but rather a purely organisational complex of judicial institutions: those courts are simply part of the judiciary that are designated as such by formal law (Article 116). Their organisation, composition and competence is regulated by law; delegation is possible (Subarticle 2). However, one safeguard that is typical of the Judicial, to guarantee its independence, is also characteristic of the Dutch judiciary: its members are appointed for life (Article 117); they can resign voluntarily or will be fired at an age determined by law (Subarticle 2); present law prescribes an age of seventy. Other principles, like impartiality, are not explicitly mentioned in the constitution. The law regulates to which extent persons who are not members of the judiciary, partake in its rulings; delegation is possible (Article 116, sub 3). This refers to (scientific or other) experts on a certain subject, not to a system of jury
trials, which is absent in the Netherlands.

Article 112 states the main principle: the power to judge disputes of

administrative appeal is possible. However, it does not guarantee a decision by an independent court: on 23 October 1985 the European Court of Human Rights ruled that the Crown Appeal by the Council of State, then by exclusion the highest administrative appeal court, lacked the necessary independence. This necessitated a complete revision of the Dutch administrative court
system, resulting in a much expanded access to independent administrative courts.

Article 113 exclusively attributes also the power to judge

offences to the judiciary. However, law can regulate the establishment by government of disciplinary courts outside of the judiciary. Delegation is possible (Subarticle 2). The judiciary is attributed the exclusive right to impose a punishment entailing a deprivation of liberty (Subarticle 3). This does not refer to forms of detention that are not punitive in nature. Law may regulate exceptions to the provisions of Article 113 in case of trials held outside of the European territory of the Netherlands or of proceedings of martial law
; delegation is possible (Subarticle 4).

Article 114 entails a civil right: the prohibition of the

International Military Tribunal
once was.

Article 118 regulates the Dutch Supreme Court, the

Hoge Raad der Nederlanden. Their members are appointed from a shortlist of three, made by the House of Representatives of the States General (Subarticle 1). Formal law determines in which cases the Supreme Court may reverse judgments of lower courts (cassation
) for violation of the law (Subarticle 2). The Supreme Court in revision only decides points of law, not substantial matters. Other duties may be attributed by formal law (Subarticle 3). These other duties in fact include the resolving of conflicts of competence between courts, penal trials against judges for offences committed in office, disciplinary and advisory tasks and the decision in disputes about prizes taken by Dutch vessels. Article 119 attributes the exclusive right to the Supreme Court of trying members of the States General, ministers and secretaries of state, whether incumbent or formal, for offences committed in office. It also states such a trial is instigated by either a Royal Decree or a decision by the House of Representatives.

Article 120 states that no judge will judge the constitutionality of laws and treaties. Therefore, no constitutional review of formal laws is possible; the Netherlands lack a

Constitutional Court
. However, regulations of lower administrative bodies may be tested against the constitution by the courts. Also any law may be tested against any self-executing treaty, though this rarely happens.

Article 121 states three safeguards for a fair trial: the first is that trials are public. The second is that judgments must specify the considerations and grounds upon which they are based. The third is that any judgment must be pronounced in public. Any exception to these principles can only be made by formal law; no delegation is possible. Article 122 states that pardon is granted by Royal Decree, on advice by a court indicated by law. Formal law regulates the procedure; delegation is possible. Also, an amnesty is possible by a special law or by force of such law; delegation is possible (Subarticle 2).

Chapter 7: Provinces, municipalities, water boards and other public bodies

The Netherlands form a decentralised unitary state, meaning that although the state is not a federation, some bodies have an autonomous power of regulation, either based on a territorial division or on a functional division.

Article 123 states that provinces and municipalities can be established and abolished by formal law, hereby indicating the two levels of territorial division. The twelve Dutch provinces still largely coincide with their medieval predecessors, with the exception of Flevoland, and North and South Holland, which were created in 1815 from Holland; the municipalities have recently been greatly decreased in number. Formal law regulates changes in their boundaries, delegation is allowed (Subarticle 2).

Article 124 states the main principles of decentralisation: provinces and municipalities are competent to regulate and administrate their internal affairs (Subarticle 1), delegation is possible — but only by the provinces and municipalities themselves (Article 128); nevertheless demands, regulated by formal law, can be made by the central government on such regulative and administrative powers; delegation is allowed (Article 124 sub 2). So the lower territorial administrative bodies have on the one hand a relative autonomy — but on the other hand they must work within the national legal framework, loyally implement national government policy and are subject to central control. This is further covered by Article 132: the standard organisation of provinces and municipalities and the composition and competence of their administrative organs is regulated by formal law (Subarticle 1); how they are controlled is regulated by law (Subarticle 2); their decisions shall only be subject to prior supervision in cases determined by law or by force of law (Subarticle 3); their decisions shall only be quashed by Royal Decree and on grounds that they violate the law (in the broadest sense: the recht) or conflict with the public interest (Subarticle 4). Law will in general regulate the kind of provisions to be made if provinces or municipalities fail to meet the demands of Article 124 sub 2 (Subarticle 5). Which taxes may be levied by provinces and municipalities and their financial relationship with the state, are determined by law (Subarticle 6).

Article 125 indicates the main administrative organs of the lower territorial administrative bodies: in the case of the provinces these are the

wethouders) and States Deputised were no longer allowed to be members of the municipal councils or States Provincial respectively. This makes their function designation a misnomer, although the etymology
of the word "wethouder" or "deputised" is no longer commonly understood. The Commissioner of the King and the mayor are officials, appointed by Royal Decree (Article 131). A proposed revision to introduce an elected mayor, recently was rejected by the Senate. The mayor has some legal executive powers of his own, mainly regarding the protection of public order, but these have no direct constitutional basis, they are delegated by the national legislator. Article 126 states, however, that formal law may determine that instructions regarding his office may be given to the Commissioner of the King by the national government. For cases of gross neglect of administrative duty, formal law will regulate the kind of provisions to be made in deviation of Articles 125 and 127 (Article 132, sub 4)

The members of the

Council of Ministers
; a lawyer will lose his membership of a municipal council if he represents his municipality in court. All members vote without mandate (Subarticle 6). This is a reference to the situation under the Republic when the members of the States of a province voted on instruction from the city councils they represented.

Chapter 8: Amending the constitution

To amend the constitution, the proposed changes must first be approved by both the House of Representatives and the Senate of the

States-Provincial and the States-Provincial are not dissolved following the adoption of a proposal in parliament (see elections in the Netherlands
). The Senate will therefore invariably have the same composition unless provincial elections are held as well. Neither holding provincial elections specially for this purpose, nor postponing consideration of the proposal to change the constitution until after the regularly scheduled provincial elections is considered a desirable alternative. Changes that involve the relations between the countries of the Kingdom must be proposed by a law formulated by the Government of the Realm.

Additional articles

There used to be several additional articles with Roman numbering; however, all except articles IX and XIX are now abrogated.

Statute of the Kingdom of the Netherlands

Each of the four countries within the

Statute of the Kingdom of the Netherlands, which is the constitution of the entire Kingdom. The constitution of the Netherlands is only applicable to the territory in Europe and its public bodies of Bonaire, Sint Eustatius and Saba, since 2010 municipalities, in the Caribbean, except when the Statute does not cover a certain legal subject. The Statute however, mainly describes the relations between the different parts of the Kingdom. In addition it stipulates that each country is obliged to promote human rights, listed in a special bill of rights, and decent governance. The Kingdom of the Netherlands is a federacy, where the central government gives considerable autonomy to some parts of the kingdom (Aruba, Curaçao and Sint Maarten), but retains control over a large part (European Netherlands). There is a Government of the Realm, a Legislative of the Realm and a Supreme Court of the Realm. However, these bodies are only fully formed on special occasions and by appointing special Antillian members to the normal Dutch government, parliament and Supreme Court. One of the members of the Dutch council of ministers is always also appointed a permanent "Minister of Antillian Affairs". Since 1998 this is the Minister of the Interior and Kingdom Relations; when he is acting in this capacity the council has the status of the Government of the Realm to treat minor issues. Though the Statute is in principle higher than the Dutch Constitution, there is no legal mechanism to enforce this. The Dutch Supreme Court has consistently ruled that it is forbidden for judges to test laws and administrative acts against the Statute. However the Government of the Realm can strike void any law of Aruba, Curaçao and Sint Maarten for being incompatible with the Statute. This asymmetry and the fact that foreign affairs and the defence of the Kingdom are administered by the Dutch Government in its capacity of Government of the Realm show that the frame of government of the Kingdom has also elements of a decentralised unitary state
. The Statute can only be changed with the consent of all countries within the Kingdom; the laws to this effect can be adopted with a simple absolute majority in each of their parliaments.

General precepts

Although the constitution itself is the primary body of constitutional law in the Netherlands, it is not the only law that contains constitutional codification. A number of general precepts are encoded in a separate law known as the Law on general precepts (the Wet Algemene bepalingen). These precepts cover a number of varying topics ranging from applicability of different types of laws to persons or territories, to regulations mandating that judges must hear all cases brought before them.

See also

Notes

References

  • Koekkoek, A.K. (e.a.) (2000) de Grondwet — Een systematisch en artikelsgewijs commentaar, Tjeenk Willink Deventer
  • Kortmann, C.A.J.M., (2005), Constitutioneel Recht, Kluwer, Deventer

External links