Recently my colleague Jerfi Uzman blogged about two constitutional amendments concerning the judicial protection of fundamental rights that are currently pending in the Dutch Parliament. In his discussion on the parliamentary debate he noted that it is “very hard to find something positively inspiring in our Constitution”. Since our Constitution didn’t arise as the result of revolutionary historical events, the soberness of the document is indeed striking in comparison to the Constitutions of various other countries in Europe and America. The character of the document explains why amendments to our Grondwet rarely attract any attention, as Uzman pointed out.
But is the ‘cliché of soberness’ facing its demise? In the coming months the Dutch government will propose a new constitutional amendment, introducing an article that enumerates three core values underlying the document. Such guiding values are usually found in a preamble. The Dutch government, however, has rejected the possibility of adopting a preamble in the Constitution and is proposing an introductory provision in the body of the document itself. When this Bill becomes law our Constitution will no longer commence with the well-known anti-discrimination article (article 1), but with a 'general provision' – an 'article 0' – stating that “the Constitution guarantees the values of democracy, the rule of law (rechtsstaat) and fundamental rights”.
What to think of this novelty? Surprisingly, this article – though at a minimal level – breaks with the absence of ideology in the text of the Constitution for the first time since its ratification in 1814. The main goal of the adaption is to pinpoint the detailed provisions that put the values referred to into practice. Although legal scholars recently discussed the lack of real-life legal consequences of the proposed introductory provision, I wonder what those detailed constitutional provisions in fact are, and more especially those concerning the rule of law.
First of all, the part on fundamental rights is easy to find, enshrined in the first chapter of the Grondwet; though the international human rights of the EHCR are far more important in everyday life than the rights listed in our Constitution (due to the prohibition on courts to review the constitutionality of acts of parliament under article 120). Secondly, the values of democracy are reflected for example in the direct election of MPs in the Lower House, the indirect election of MPs in the Upper House and the election of representatives in the decentralised legislative bodies. Thirdly, however, where do we find clear elements of the rule of law? Curiously,… we can´t find them anywhere. Apart from article 89, the essential elements of the rule of law, namely the principle of legality for significant measures and the binding of the executive to the law are still unwritten. In fact, since 1983 the Constitution hasn’t mentioned the executive power at all. No wonder that written constitutional boundaries for the executive are absent, regardless of their importance for the rechtsstaat and our constitutional structure. If we really want to make the Constitution work and make it a "guarantee" for the rule of law, we shouldn’t hesitate to encode the executive power, both institutionally and substantively. Only then will the new ‘article 0’ be truly positively inspiring, instead of just an empty shell.