Unlike many other countries, The Netherlands has no constitutional court. Article 120 of our constitution even says:
De rechter treedt niet in de beoordeling van de grondwettigheid van wetten en verdragen.
or in English:
The judge does not intervene in the assessment of the constitutionality of laws and treaties.
It's the responsibility of Parliament (especially the 'First Chamber' or Senate) to ensure no law is against the constitution. Sometimes I hear people say Dutch judges should have the possibility to assess whether something is against the constitution, but I can't find any concrete reasons why.
I learned two things about a constitutional court in The Netherlands:
- Many articles in the constitution have sentences like "Bij de wet kan dit recht worden beperkt" or "behoudens bij de wet gestelde beperkingen en uitzonderingen.". In (English) summary: "This right may be limited by law". In most cases, constitutional review makes no sense because the 'vagueness' of the articles.
- One doesn't need the constitution to 'claim rights'. The Netherlands is a member of many international organisations (United Nations, European Union, Council of Europe) and member of an uncountable number of treaties. For example: in the Urgenda-case, the High Court (Hoge Raad) even used the Convention for the Protection of Human Rights and Fundamental Freedoms and the United Nations Framework Convention on Climate Change (UNFCCC) to say the government should protect citizens against climate change.
From time to time, people still say we need a constitutional court. D66 thinks we should have it. Recently, the Staatscommissie parlementair stelsel (State Committee on Parliamentary System) advised to do so. But I can't find out why exactly.
What would a constitutional court bring us? Are there are examples of court cases that would have ended up differently if judges could assess the constitution?
