Constitutional Law Article 120
ARTICLE 120 SOURCE: https://www.mr-online.nl/artikel-120-op-de-schop-constitutionele-toetsing-bevordert-constitutioneel-denken/
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The government intends to make constitutional review possible. A good idea? mr. asked aprofessor,
a judge and a lawyer. Surprisingly, a very heavy and lengthy constitutional amendment could possibly be dispensed with. “Article 120 is non-binding.”
By Sam Maasbommel
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Reform of constitutional law: lawyers like to philosophize and fantasize about it, but in the end little is usually done. Constitutional review is also such an eternal discussion.
“The judge does not intervene in the assessment of the constitutionality of laws and treaties,” it is stated in Article 120 of the Constitution.
The Dutch court is not allowed to check whether a law in a formal sense is in accordance with the most important document in our legal system.
The old argument is that the legislator itself has to interpret the Constitution, not an unelected judge.
Still, the debate has been ramping up lately and the pro-review movement seems to be gaining momentum.
‘Radical ideas’ by Rutte IV
Because it was really there in the coalition agreement Looking to each other, looking forward to the future,
the result of the longest cabinet formation ever: “We are working on the elaboration of constitutional review,
in line with the advice of the state committee for the Parliamentary system, in which we see which design best suits the Dutch legal system.”
And sure enough, steps were taken in the first half of the fourth Rutte cabinet. Ministers Bruins Slot (CDA) and Weerwind (D66), respectively of the Interior and of Legal Protection,
have already asked the highest judges whether they feel in favor of constitutional review – ‘yes, please’ – and recently sent an outline letter to the House of Representatives.
In this the duo of ministers aims for testing against the classic freedom rights, such as freedom of religion and expression, by means of
‘staggered testing’, which means that every judge would be empowered to review and not a constitutional court to be created for that purpose. But what exactly is the added value?
No urgent need
“I don’t feel it meets an urgent need,” says Gerhard Hoogers,
associate professor at the University of Groningen and honorary professor of comparative constitutional law at the Carl von Ossietzky University in Oldenburg.
He can’t imagine a law that has obviously been in conflict with the Constitution in recent years. Our ground document would not lend itself well to that either.
The fundamental rights in the Constitution have a fairly formal system of restrictions, such as Article 11:
“Everyone has the right to inviolability of his body, except for restrictions to be set by or pursuant to the law.”
If there is a legal basis, the legislator has relatively much room to restrict the right. In order to make constitutional review a meaningful activity,
Hoogers believes, “you should at least build in some sort of proportionality review” – as provided for in the European Convention on Human Rights (ECHR).
“And if you do that , you can wonder what exactly the added value is compared to testing against the ECHR itself.”
In his view, the form the government has opted for, staggered assessment by the ordinary court, is certainly useless.
“The Swedish court has been allowed to test against the constitution since the early 1970s, and it hardly ever happens. They just don’t want to.”
According to him, this stems from a constitutional tradition in which there has always been a great deal of trust in the legislature; a society of great consensus, just like the Netherlands. “Until recently, at least,” he adds.
Willem Korthals Altes
Willem Korthals Altes likes it. “I am very much in favor of it,” says the judge who, after forced retirement at the age of seventy (about which he filed a case against the State ),
was allowed to put on the gown again to help absorb the corona arrears. It is true that we have the opportunity to test laws against treaties, and “that is already a lot and wonderful”, but nevertheless he finds it “a great loss” that our own Constitution is not covered by this.
He sees certain situations in which checking against the Constitution could have had clear added value, such as the closure of bookstores during the corona period.
According to him, Article 7 of the Constitution (freedom of expression) and the accompanying case law would have been sufficiently specific to test – which should then have led to an immediate reopening.
If Korthals Altes was allowed to draw it up, there would be a constitutional court. The ordinary judge should not be burdened with this. He himself obtained his doctorate on a fundamental law dissertation, and in the past he experienced that judges hardly looked at the ECHR fundamental rights on their own.
Things are definitely better now, but about twenty years ago it took him a lot of effort to convince colleagues of the importance of this. A separate court will be more attentive to this and less reserved – and that is exactly the intention, he believes.
Before or after?
Hoogers can agree with that. If a constitutional review is then chosen, he also feels more in favor of a constitutional court.
That gets one task, “and then the inclination to do it is also a bit greater, because otherwise you set your own right to exist in Frage .” Hoogers then prefers the French model, with ex ante testing : prior to the entry into force of the law. Legal certainty is thus better guaranteed than when a judge later repeals a law that is already in force.
With regard to the assessment moment, Korthals Altes prefers ex post . Not so much the enactment, but rather the application of laws should be fodder for the constitutional court. Citizens should be able to go to court in a specific case – in a quick procedure – to have it checked whether the elaboration of a particular law is constitutional.
As a lawyer at Stibbe, Ali al Khatib looks at the matter from a slightly different perspective. First and foremost: he also thinks it is good to see that something is happening in this area, and is also in favor of revitalizing the Constitution, including the incorporation of a proportionality test. At the same time, he lacks a sense of social urgency in the outline letter. Al Khatib would have liked to see lessons learned from the Child Benefit affair. According to him, a less strict ban on testing could have prevented a lot of misery. “This letter has no eye for that at all.”
Abbb’s as a pad
In the Allowances affair, not being able to test laws in a formal sense against the Constitution was not the actual stumbling block: “A much bigger lacuna is that, in principle, testing is also not allowed against the general principles of good governance.” The Supreme Court interpreted Article 120 in its classic Harmoniesation Act judgment from 1989 in such a way that these ‘ abbbs ‘, such as the principle of proportionality, also fall under the prohibition of review.
Human rights treaties often offer solace, and judges can certainly use them more often, but there will always be situations in which, according to the judge, no specific fundamental or human right is at stake. “Then it is important that the general principles of good governance, such as the principle of proportionality, can serve as a kind of cushion against too harsh laws.” He is in favor of making the law “less sacred” in a formal sense. That is not such a strange idea: after all, almost all other rules can be tested against legal principles. “I estimate that there will be few people who think that you should not be able to test a rock-solid law in an individual case for proportionality.”
The fact that the ministers are neglecting this aspect – according to the outline letter people are waiting for ‘constitutional maturity’ at this point – surprises Al Khatib. After all, in The Hague too, there has been unison of shame that the judge took the laws as they were, no matter how harsh they turned out. “The Parliamentary Inquiry Committee has put on a really big pair of pants and the Department has taken it for granted that they have not applied the general principles of good administration.” The Rutte III cabinet has even resigned over the affair. Every reason to send out the signal as a politician, “in a dialogue between legislator and judge”, that Article 120 should no longer oppose testing against principles.
He calls on the highest courts to relativize the Harmonization Act judgment with regard to abbbs and calls on the legislator, if the judge fails to do so, to amend the Constitution in such a way that this is explicitly and unconditionally permitted. “So that the notion that laws must be proportionate is further anchored in our legal DNA.”
If the judge picks up the gauntlet, there is no need to wait for a constitutional amendment. After all, general legal principles have been entered into the prohibition of review by the court itself – reinterpretation is possible immediately. Amendment of Article 120 would be years away, “while you now see how people can end up in a legal meat grinder.”
Setting up a constitutional court can be omitted as far as Al Khatib is concerned. If judges can test a ministerial regulation against principles, then this should also be possible with a law in a formal sense. “And we already have a nice system of distributed testing in the Netherlands.” Testing laws in a formal sense against abbbs is therefore not such a big step, but it is an important one. “We don’t need a revolution , we need an evolution .”
For anyone who has dreamed of checking against the Constitution for years, the sudden interest and apparent political will is an exciting event. But, like so many movements in constitutional reform, the chance of disappointment is quite high. The first reading required for a constitutional amendment often still succeeds, but in the second reading proposals often fail ( with exceptions ), because a two-thirds majority is required in both Houses. Only recently – again – the corrective referendum went under. Nevertheless, there may be a goat path. Hoogers, a specialist in the field of kingdom law, has argued for years that Article 120 is actually non-binding.
Troubled legal history
What’s up with that? Article 120 is a merger of two older provisions. One from Thorbecke’s Constitution of 1848: “the laws are inviolable”, the other from 1953: “the courts do not enter into the assessment of the constitutionality of agreements” (by which treaties were meant). In 1983, says Hoogers, the provisions were merged into the current Article 120.
However, the (constitutional) legislator did not realize that these were two disparate standards. The treaty ban on review was in fact a national standard , which means that it binds the entire Kingdom (currently consisting of Aruba, Curaçao, Sint Maarten and the Netherlands); while the other provision was ‘just’ a Dutch constitutional standard.
According to Hoogers, the Kingdom Act legislative procedure should therefore have been followed, with additional requirements attached to the regular constitutional amendment procedure. For example, the Ministers Plenipotentiary of the overseas countries sit at the table in various phases. That did not happen at the time, which is contrary to the Charter for the Kingdom of the Netherlands. “And Constitutional provisions that are contrary to the Statute, they do not apply.” After all, although we hardly notice it in daily legal practice, it is in hierarchy above the Constitution.
Admittedly, it is a somewhat theoretical discussion, which, moreover, is not conducted outside the discourse under Kingdom law. “We think you’re right”, Hoogers hears from his colleagues. But he doesn’t know whether his find will have any meaning in reality. “It is, of course, such an idiotic statement, a non-binding norm in the Constitution.” And then there is the paradox that no one can establish the ineffectiveness because of the prohibition of testing. Constitutional law continues to fascinate.
in the genes
As much as there are reservations about the cabinet plan, it is in any case healthy to review our constitution every now and then. Al Khatib appreciates that the Constitution is brought into the discussion a little more prominently.
According to Korthals Altes, the added value of a revised Article 120 is not in the first place of a strictly legal nature, but in a broader sense ensures that people start thinking more ‘constitutionally’:
considering how legislation and regulations relate to the Constitution. “We do that far too little in the Netherlands.” According to the experienced judge, this partly stems from the ban on testing, because it is not “in the genes” because of this. Who knows, maybe that will eventually change.
Photo Ali al Khatib-171d2c94
Ali al Khatib
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