Without judicial review, what is the point of the Dutch constitution?

Question

I gather from various sources (note: most links are in Dutch) that no process of judicial review exists in the Netherlands.

In my understanding, most democracies have a process for creating, amending and removing ordinary legislation (requiring a simple majority vote in their various legislative bodies) and another for amending their constitution (requiring a two-thirds majority vote and/or additional restrictions, such as the Dutch procedure of voorstelwetten or the similar Belgian practice of 'unlocking' only certain Articles for editing by the next legislature). If a simple majority in the legislature decides they want to pass a law which violates the constitution, they could certainly do that if they really wanted to, but will quickly find that they have wasted their time - as every court case stemming from the new law will simply end in the relevant section of the constitution trumping the new law.

However, in the Netherlands, judges do not practice judicial review (in fact, Article 120 of the Constitution expressly prohibits it). It is my understanding that, even in the event that a law unambiguously violates a constitutionally-protected right, the judge will have no choice but to apply the law anyway.

Now - assuming that my understanding is correct - my question is this: leaving aside its symbolic value, what is even the point of the Dutch Constitution (at least those Articles that confer rights, rather than describing governmental functions)? Or more specifically, what is the point of placing safeguards upon the process of amending it above and beyond those placed on ordinary legislation?

For example, if I were to command a 52% majority coalition in the legislature and I would very much like to pass a certain law that happens to be blatantly unconstitutional - which seems like it is exactly the sort of situation that a constitution is supposed to protect against - in what way am I actually stopped? If all the members of my coalition just stick our fingers in our ears while the 48% complain about our bill's unconstitutionality, and we pass it anyway, won't the new law be enforced just as much as it would have if we'd jumped through all the hoops of amending the constitution?

Answer 1

Compliance with the Dutch Constitution is evaluated pre-enactment, rather than post-enactment as indicated below.

The Dutch Constitution prohibits the courts from reviewing the constitutionality of Acts of Parliament. They are however obliged to assess whether statutory regulations are compatible with international treaties. The ban on constitutional review is laid down in the Constitution.

This does not mean that this type of legislation is at no point reviewed in the light of the Constitution. This is in fact done during the preparatory stage by the bodies involved in enacting legislation (the Council of State in its advisory role, and the legislature, in other words, the government and both Houses of Parliament). It is first and foremost the responsibility of these bodies to ensure that no legislation is passed that is in conflict with the Constitution.

From here.

Also, keep in mind that most of the entrenched human rights protections in the Netherlands are via treaties associated with the Council of Europe, and the Dutch courts can determine if domestic laws violate international treaties (which Dutch law does not allow the Netherlands to abrogate unilaterally unless the treaty so provides).

This makes the lack of judicial review far less interesting in the Netherlands than in the United States or many other countries (e.g. Canada or India), and it makes international law much more interesting.

American constitutional law would not be much of a big thing if it were (1) stripped of its individual rights protections (2) was in a unitary state like the Netherlands, where the are no federalism concerns to protect, and (3) there is also not a constitutionally enshrined separation of powers between the legislative and executive branches, as there is in the U.S. You could teach a course on American constitutional law stripped of those issues in a week and the questions that are left would be much easier to evaluate in advance, rather than after the fact, since they would concern the legislative process for the most part.

Institutional And Political Culture Matter

This question is premised, to some extent, on the belief that judges act in one way that respects legal enactments, while other political bodies do not. But, this behavioral claim is not a universal one, it is a function of particular sets of institutional and political cultures.

The legislative check also has more bite in the Netherlands because it is more of a "deliberative democracy" in terms of its political culture (i.e. decision-making relies more heavily on the substantive merits of legislation rather than ethic or partisan identity and seeks wide input) (the Netherlands ranks #9, the U.S. ranks #94). See internal pagination 91-93 of this report.

The constitution's pronouncements are also more meaningful in the legislature because people act differently when they know there is no "safety net" from the courts to which they can pass the buck for ensuring compliance with the constitution. You see the same thing in the U.K. parliament which historically was not subject to any form of judicial review.

The Council of State and its institutional norms, in particular, are a known quantity, because the Dutch Council of State has operated continuously since 1531 CE making it one of the oldest continuously functioning state institutions in the world.

Likewise, Dutch judges, when applying the laws and treaties currently in force, are independent, and are arguably less partisan than U.S. courts. So, enforcing a binding treaty may have considerable power in the courts.