Constitutional Review in the Netherlands: A Joint Responsibility

Jurgen C.A De Poorter

doi:10.18352/ulr.229

Abstract

The Utrecht Law Review is an open-access peer-reviewed journal which aims to offer an international academic platform for cross-border legal research. In the first place, this concerns research in which the boundaries of the classic branches of the law (private law, criminal law, constitutional and administrative law, European and public international law) are crossed and connections are made between these areas of the law, amongst others from a comparative law perspective. In addition, the journal welcomes research in which classic law is brought face to face with not strictly legal disciplines such as philosophy, economics, political sciences and public administration science.The journal was established in 2005 and is affiliated to the Utrecht University School of Law. If you wish to receive e-mail alerts please join the mailing list.

Highlights

The Dutch constitutional system gives the legislature the final say regarding the compliance of statutory laws with both written and unwritten constitutional law
The judiciary contributes to the interpretation of the Constitution and unwritten law only in cases in which the constitutional compatibility of laws passed by the legislature is not at issue. This strong emphasis which is placed on legislative supremacy is one of the main characteristics of the Dutch constitutional tradition
This is the case, to a certain extent, in the relationship between the ECtHR and the national judiciary. It is against this background that I believe that a preliminary reference procedure for the ECtHR can contribute to the legitimacy of that process of trying to fit the supranational law into the national law. This is mainly because it would offer more room for judicial cooperation in which the national judge and the ECtHR, both according to their own competencies, are called upon to directly and mutually contribute to finding a decision that ensures the uniform application of the European Convention on Human Rights (ECHR) in all its Member States

Summary

Introduction

The Dutch constitutional system gives the legislature the final say regarding the compliance of statutory laws with both written and unwritten constitutional law. ‘In short, the judicial veto of legislation replaces government by the people with the gouvernement des juges in regard to many of the most important and controversial issues that are to be resolved in a political community It gives final decision-making power over fundamental, usually hotlycontested matters of principle and over the issue of what is and is not the law of the land to the branch of government that is least accountable and which, if it is representative at all, represents the sovereignty of the past over the present. It is clear that this reasoning, based on the lack of democratic legitimacy for judicial decision making, is less important when the (partial) shift of the law-making task of the legislature to the judiciary is a reaction to distrust of the political branches’ majoritarianism, whether this distrust is historical or a reaction to recent developments

Constitutional interpretation and review in the Netherlands

The Relationship between the national and supranational judiciary

Strengthening cooperation on the national state level

An eye towards the future: towards a constitutional court in the Netherlands?