Amending our freaky Constitution
Last week Parliament debated a significant amendment to the Dutch Constitution concerning the judicial protection of civil rights. Although hardly anyone thinks a change desirable, there is little consensus on what kind of change.
It is a bit of a cliché that the Dutch Constitution is a sober document. Unlike its U.S. counterpart, it does not inspire ‘We The People’ to form a more perfect union. Neither does it explicitly acknowledge that human dignity, as does its German counterpart. It is very hard indeed to find something positively inspiring in our Constitution. Perhaps it is not surprising then that debates on constitutional amendment seldom attract any attention, be it from the media or the public at large. This might not be troubling in cases where there are relatively minor changes at stake. Few citizens probably know that the Constitution was changed in 2005, to enable the temporary replacement of MPs in the case of pregnancy or illness. But it is somewhat remarkable, to say the least, that even major amendments only matter to a few backbencher MPs.
There are currently two such amendments pending in Parliament. Both proposals concern the judicial protection of fundamental rights. This system is outlined in articles 94 and 120 of the Constitution. It is a positively strange system, mainly in place to promote the idea that ‘We The Dutch’ are a bit odd. Why? Because the two provisions stand of course in stark contrast to each other. Whereas ‘120’ prohibits judicial review of statutory legislation on the basis of the Constitution, ‘94’ legitimises the courts to review legislation for compliance with international law. This has resulted in a situation where national courts are allowed to judge a case on, say, the question whether an Act of Parliament violates the non-discrimination clause in the European Convention on Human Rights but simultaneously cannot decide the same case on the basis of their own Constitution. The two proposals mentioned, aim to remedy this anomaly in opposite ways. One amendment, proposed by Liberal MP Joost Taverne effectively removes article 94 so that our constitutional system of rights protection is once again back to the Stone Age period of parliamentary sovereignty. The other, the so-called Halsema proposal, by contrast seeks to partly repeal ‘120’, thus allowing courts to review legislation on the basis of the Constitution.
The Halsema proposal, now a Bill in its second reading, was debated last week. As expected, media coverage was virtually non-existent. It was even highly uncertain whether the debate would indeed take place because of a political scandal involving Security & Justice minister Ivo Opstelten (who yesterday had to resign).
What struck me during this debate, was the lack of any consensus on the issue of rights protection in this country. One would perhaps have expected a fairly straightforward clash between defenders and those opposed to judicial review. By contrast, especially those opposed to the bill, though numerically probably sufficient to block it from becoming law, could hardly be called united. Of the three parties who considered voting against the bill, one was probably sceptical of human rights as such (the Populists), one was committed to abolishing judicial rights review (the Liberals), and one was against any change at all (Christian Democrats), underlining its continuous commitment to the judicial protection of European human rights law but at the same time expressing fear of judges taking over the country when they would be able to engage in the same kind of rights review under the Constitution. The conclusion might be that although everybody else wants a change, there is obviously no general agreement as to the direction in which things should be going.
So what now? Judging from the debate last week, both proposed amendments will probably not acquire the necessary two-thirds majority in Parliament. This means we will continue to have our pragmatic, be it somewhat odd constitutional arrangement. That is not necessarily problematic. It just means that the part of our Constitution concerning rights is not national but European, and increasingly so. I for one, do not mind. But if I were in the Liberal party, I would have opted for a trade-off between the Taverne and the Halsema proposals, enabling judicial review on the basis of the Constitution while simultaneously mitigating the supremacy of international law in the courts.
But then again, we Dutch would have to talk about drugs once more when abroad.