Abstract
AbstractParadoxically, at roughly the same time in the Netherlands the amendment bill to introduce constitutional review by the judiciary of acts of parliament lapsed in 2018, the State Commission on the Parliamentary System recommended that such review be introduced. This Article analyzes Dutch exceptionalism on the topic of prohibiting constitutional review and comes to the conclusion that it cannot be justified. Focusing on the nature of constitutional change in the country, the recommendation is made that the quest for reform should start with the courts, and not with the constitutional legislature, as has been the case to date.
Highlights
Paradoxically, at roughly the same time in the Netherlands the amendment bill to introduce constitutional review by the judiciary of acts of parliament lapsed in 2018, the State Commission on the Parliamentary System recommended that such review be introduced
American exceptionalism in this regard is something of the past, as the judicial review of constitutions has become the common currency in modern-day constitutionalism.[2]
This is because the Netherlands is one of the few constitutional democracies that still prohibits the courts from reviewing the constitutionality of acts of parliament
Summary
The Constitution of the Netherlands dates from 1815, while the prohibition on constitutional review was introduced by the revision of 1848. In a landmark judgment from 1989, the Harmonisatiewet case, the Supreme Court ruled that the effect of Article 120 was to rule out reviewing acts of parliament for compliance with the Charter.[22] The Court ruled this way even though the Charter does not expressly prohibit its judicial review.
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