Should our amendment procedure be amended?
The Dutch Constitution has not been amended significantly since 1983, because our amendment procedure is too rigid. How to solve this problem? What lessons can be learned from other countries to create a stable, but flexible amendment procedure?
The Dutch Constitution has not been amended significantly since 1983. One important reason for this is the difficult amendment procedure: to amend a provision in our Constitution we need a two-thirds majority in both the House of Representatives and the Senate with two readings. This procedure applies to all provisions. Thorbecke’s intention was to create stability through this procedure, but nowadays it is arguably too rigid. There have been many important proposals to amend our Constitution since then, but none have been successful. So our Constitution is not really a “living” Constitution as it is not amendable when society changes. Many scholars such as Scholten think this is a problem.
This problem of constitutional change can be understood as a paradox: on the one hand written constitutions should provide a stable framework for the government. The point is that constitutions, in order to be able to endure, need adaptive capacity as circumstances and demands change.
This raises the question what has to be changed in our Constitution to have a stable framework which is also flexible enough to adapt to changing circumstances and demands.
One way to explore this question is to search for inspiration abroad. The Dutch Constitution is not the only constitution that is facing the problem of change. These problems also arise in other countries . A solution that has been found in 62 % of the constitutions of the world is amendment differentiation. Amendment differentiation means that certain provisions have a different amendment procedure than other provisions. A distinction can be made between procedural differentiation, which means that some provisions have a different amendment procedure than other provisions, material limits, which means that some values should not be the subject of an amendment and Ewigkeitsklausel, which means that some provisions should not be the subject of an amendment.
Previously Passchier found that 116 constitutions apply amendment differentiation. Given that fact I have examined how constitutions differentiate between the provisions. As Scholten speaks about the “core” of the constitution, namely the fundamental rights, I examined how fundamental rights are protected in constitutions. I found that 70.7% of the 116 constitutions that have amendment differentiation do protect the fundamental rights more. By more, I mean by a different procedure, by material limits, by Ewigkeitsklausel, or by protecting a couple of fundamental rights. It means that it is not something special to make a distinction between the ‘core’ of a constitution and ‘other’ provisions within a constitution.
What lessons can be learned from this in the Netherlands? I am aware of the fact that we have to be careful with comparative law, but it is remarkable that our Constitution does not differentiate in the amendment procedure for different more or less important subjects. Also in our Constitution we can make a difference between the “core” and the other provisions of our constitution, as Scholten and Voermans earlier suggested.
Scholten suggested that only the “core” provisions should be in our Constitution and that the other provisions could be laid down in ordinary law. I think that this can also be arranged within the Constitution as we have seen in other countries. My suggestion would be for now to let the revision procedure for Chapter 1 (fundamental rights), remain as it is at present. Also for Chapter 2 (The government) I suggest letting the procedure remain as it is, because this is a politically sensitive subject. For the other “less important” provisions I would suggest having two readings, but instead of a two-thirds majority, an absolute majority, so we have the same democratic level of two readings, but more flexibility because of an absolute majority.
In conclusion it can be said that it is possible to incorporate amendment differentiation in our Constitution. Like many countries in the world, we can differentiate between our “core” and the other provisions, with a lighter regime. So our Constitution will be stable enough, but will also have adaptive capacity.
As I will do further research on this topic, any suggestions or comments would be very welcome.