The cabinet wants to give judges the opportunity to put aside ‘ordinary’ laws in a lawsuit for a while if they are contrary to the Constitution. The idea behind it is that citizens can therefore be better protected against the government in court.
For example, if a law allows censorship under certain circumstances, a judge may declare that provision inapplicable because censorship is prohibited in the Constitution. The same applies to a law that restricts people‘s right to unite. According to the Constitution, that right may only be restricted if public policy is at stake.
If the cabinet’s intention really became reality, that would be a major change in how our democracy is set up in the rule of law. In the Netherlands, we do not currently have a constitutional test; the Constitution prohibits the courts from testing laws against the Constitution.
No constitutional court
Countries such as Germany and France have a special so-called constitutional court for this. Such a court may say that an adopted law is contrary to the Constitution. A special committee that looked at whether our democracy should be arranged differently, the State Committee on Parliamentary System, also advised such a court for the Netherlands.
In a letter to Parliament, ministers Bruins Slot (Internal Affairs) and Weerwind (Legal Protection) write that they do not see such a court. They do want a constitutional test by the judge, but in a different way. A special court would not work well in the Dutch system. The ministers therefore propose that any judge may rule that the law, in the specific case before him or her, does not apply because it is contrary to the Constitution.
Not the entire Constitution
But the ministers, on the other hand, do not want the judge to take into account the entire Constitution. The so-called fundamental social rights contained therein, such as the right to housing, should not be a reason for a judge to override a law in a particular case. Classical fundamental rights are often about what the government is not allowed to do, such as interfering with the free press or making demonstrations more difficult, but fundamental social rights are generally about the things that the government has to regulate for citizens.
Reflecting on such social fundamental rights, the cabinet finds more for politics, not for the courts. “This often involves a consideration of various interests, such as financial, economic and social, and (with that) often also political interests. Ideally, this balancing of interests should be such that it best serves the general interest,” the ministers write. “The cabinet considers that the judge is in principle capable of doing so, but also considers it ideally a task for politics, and not for the court.”
The coalition agreement already stated that the cabinet wants to get started with constitutional review. It was still questionable whether it is possible and in what form. The ministers have now investigated this and are now coming up with this proposal.