Constitution of the Netherlands
Encyclopedia
The Constitution of the Netherlands is the fundamental law
of the European territory of the Kingdom of the Netherlands
. The present constitution
is generally seen as directly derived from the one issued in 1815, constituting a constitutional monarchy
. A revision in 1848 instituted a system of parliamentary democracy. In 1983 the Dutch constitution was largely rewritten. The text is very sober, devoid of legal or political doctrine. It includes a bill of rights
. Laws and treaties cannot be tested against the constitution and the Netherlands
have no Constitutional Court. The Kingdom of the Netherlands also includes Aruba
, Curaçao
and Sint Maarten: there is an overarching constitution of the entire kingdom: the Statute of the Kingdom of the Netherlands.
which applied to all its provinces and cities, is the 1579 constitution, which established the confederal
republic
of the Seven United Provinces. The constitution was empowered by the Union of Utrecht
, thus by treaty
. Article XIII of the treaty granted each inhabitant of the Republic freedom of conscience. The Union of Utrecht treaty inspired the American Articles of Confederation
.
After the French invasion of 1794 the Batavian Republic
, a unitary state
, was proclaimed. On 31 January 1795 it issued a Bill of Rights
, the Verklaring der Rechten van den Mensch en van den Burger. On 1 May 1798 a new constitution, the first in the modern formal sense, the Staatsregeling voor het Bataafsche Volk, written by a Constitutional Assembly, went into force, approved by the National Assembly. The Napoleonic Kingdom of Holland
, a constitutional monarchy
, was established by the Constitutie voor het Koningrijk Holland on 7 August 1806. In 1810 the kingdom was annexed by the French Empire
.
After the French troops had been driven out by Russian Cossack
s, the new independent state of the Netherlands, a principality
, was established by the constitution of 29 March 1814, the Grondwet voor de Vereenigde Nederlanden. William VI of Orange, instated on 2 December 1813 as "Sovereign Prince" by acclamation
, and only accepting "under the safeguard of a free constitution, assuring your freedom against possible future abuses", had first appointed a number of men of good standing as elector
s and these approved the constitution, written by a commission headed by Gijsbert Karel van Hogendorp
. On 24 August 1815 William — since 16 March King William I of the Netherlands
— having proclaimed himself King of the larger United Netherlands six days earlier, issued the first version of the current constitution, the Grondwet voor het Koningrijk der Nederlanden or Loi fondamentale du Royaume des Pays-Bas, establishing the United Kingdom of the Netherlands
, now expanding his realm with the territory of the present state of Belgium
, which would again secede from it in 1830. It included a limited unentrenched bill of rights
, with freedom of religion
, the principle of habeas corpus
, the right of petition and freedom of the press
as its main points. In the Treaty of London
of 1814 the Allies had ordered that the original Dutch state would devise the new constitution. It had been approved by the new States-General
(consisting of 55 members) of the Northern Netherlands, but rejected by the majority of appointed electors (796 against 527) of the Southern Netherlands
. As 126 however had indicated that they were against because of the (by them still considered too limited) freedom of religion, which was mandatory under the Treaty of Vienna
that ordered the union of the Northern and the Southern Netherlands, their votes and those of the men having refused to vote, were added to the minority, and by this infamous "Hollandic Arithmetic" William felt justified to proclaim the new kingdom.
Regarding the frame of government the 1815 constitution did not diverge much from the situation during the Republic: the 110 members of House of Representatives (lower house
) of the States-General were still appointed by the States-Provincial (for three years; each year a third was replaced), who themselves were filled with nobility members or appointed by the city councils, just like under the ancien régime. However, now also some rural delegates were appointed to all States-Provincial (first only true for Friesland
) and the city councils were appointed by electoral college
s which were in turn elected by a select group of male citizens of good standing and paying a certain amount of taxes, so very indirectly there was a modicum of democracy introduced to the system. In all the administration was very monarchical, with the king appointing for life the members of the Senate, that mockingly was called the Ménagerie du Roi.
In 1840, when a new revision was made necessary by the independence of Belgium, a first step to a more parliamentary system was taken by the introduction of penal ministerial responsibility.
The constitution as it was revised on 11 October 1848 is often described as the original of the version still in force today. Under pressure from the Revolutions of 1848
in surrounding countries, King William II
accepted the introduction of full ministerial responsibility
in the constitution, leading to a system of parliamentary democracy, with the House of Representatives directly elected by the voters within a system of single-winner electoral district
s. Parliament was attributed the right to amend government law proposals and to hold investigative hearings. The States-Provincial, themselves elected by the voter, appointed by majorities for each province the members of the Senate from a select group of upper class citizens. A commission chaired by Johan Thorbecke was appointed to draft the new proposed constitution, which was finished on 19 June. Suffrage
was enlarged (though still limited to census suffrage), as was the bill of rights with the freedom of assembly
, the privacy of correspondence, freedom of ecclesiastical organisation and the freedom of education
.
In 1884 there was a minor revision. In 1887 the census suffrage system was replaced by one based on minimal wealth and education, which allowed an ever growing percentage of the male population to be given the right to vote; therefore this provision was at the time nicknamed the "caoutchouc-article". The election interval for the House of Representatives was changed from two (with half of it replaced) to four years (with full a replacement of now hundred members). Eligibility for the Senate was broadened. Any penal measure not based on formal law was prohibited.
In 1917, like in 1848 influenced by the tense international situation, manhood suffrage was introduced combined with a system of proportional representation
to elect the House of Representatives, the States-Provincial and the municipality councils. The Senate continued to be elected by the States-Provincial, but now also employing a system of proportional representation, no longer by majorities per province. The Christian-democrat parties allowed manhood suffrage in exchange for a complete constitutional equality in state funding between public and denominational schools, ending the bitter Dutch School Wars which had antagonised Dutch society for three generations.
By the revision of 1922 universal suffrage
was explicitly adopted in the constitution, after it had already been introduced by law in 1919. Each three years half of the members of the Senate were to be elected by the States-Provincial for a period of six years, within a system of proportional representation.
In 1938 there was a minor revision, introducing some elements of the then fashionable corporatism
by giving a constitutional base to public bodies regulating sectors of the economy. A proposal to make it possible to impeach "revolutionary" members of representative bodies, directed against communists and fascists, failed to get a two thirds majority.
After the Second World War in 1946 a revision failed attempting to simplify the revisional procedure. However a change was accepted allowing to send conscripts to the colonial war in the Dutch East Indies
.
In the revision of 1948 a complete new chapter was added to facilitate the incorporation of the new state of Indonesia
within the Kingdom. Soon it would become irrelevant as Indonesia severed all ties with the Netherlands in 1954. Also the revision created the office of secretary of state
, a kind of subminister or junior minister but one fully subordinate to a certain minister.
In 1953 new articles were introduced concerning international relations, as the Netherlands were abandoning their old policy of strict neutrality.
In the revision of 1956 the constitution was changed to accommodate the full independence of Indonesia. The number of members of the House of Representatives members was brought up to 150, of Senate members to 75.
The revision of 1963 accommodated the loss of Dutch New Guinea to Indonesia. The voting age
was lowered from 23 to 21.
In 1972 there was a minor revision; the main change was a lowering of the voting age to 18.
In 1983 the constitution was almost entirely rewritten. Many articles were abolished. Social rights
were included, most articles were reformulated (the main exception being article 23 about the still sensitive freedom of education) using a new uniform legal terminology and their sequence was changed. The bill of rights was expanded with a prohibition of discrimination, a prohibition of the death penalty, a general freedom of expression, the freedom of demonstration
and a general right to privacy.
In 1987 there was a minor revision. In the revision of 1995 the introduction of a professional army, replacing the conscript army, was regulated. In the revision of 1999 a proposal to introduce an advisory referendum
was rejected by the Senate. After a minor revision in 2002, the last changes were made in 2005; a proposal to introduce an elected mayor was rejected by the Senate.
cannot dissolve the House of Representatives more than once because of a conflict over a single political issue and that the Senate shall never block legislation for mere party politics, so that coalition government
s (all Dutch governments since the 19th century) do not need a majority in the Senate.
The unwritten laws are most influential when a cabinet is formed
; the procedure is not regulated by the Constitution but purely based on tradition. At the eve of the elections
the sitting cabinet offers its resignation to the monarch, who takes it into consideration; the cabinet is now "demissionary
". After the elections the King consults his advisors. He then appoints an "Informateur" who explores the possibilities of a coalition cabinet. Because of the Dutch multi-party system
, no political party (in the modern sense) has ever obtained a majority by itself. On the basis of the information process the King then appoints a "Formateur
" who literally forms the government by negotiating an coalition agreement
between the coalition parties and the division of the ministrial posts
between the parties. He also meets with candidate ministers and often becomes Prime Minister
himself. The King then dismisses the sitting cabinet and appoints the new one. Since there are no political alliances and parties do not commit themselves to a coalition before the elections, a competent King can have a decisive personal influence on what coalition is formed.
In common law systems these rules would not be seen as laws but as mere legal convention
s as they cannot be upheld by judges; within the Dutch civil law system however they are part of the more extended Dutch-German legal concept of the Recht, the total "legal" normative structure, be it written or unwritten, so that they have full normative force. Indeed that force is much larger than with written constitutional rules; any breach of the unwritten rules would cause an immediate constitutional crisis
.
Because there is no Constitutional Court testing laws and acts against the constitution, much of the systematics are centered on the problem of delegation
. If the legislative were allowed to delegate its powers to the government or to lower decentralized bodies, this would threaten democratic legitimacy and the constitutional protection of the citizen (as citizens have no recourse to a Constitutional Court). Therefore delegation is only allowed if articles contain the terms "regulate" or "by force of law"; otherwise it is forbidden. This rule itself however, being legal doctrine, is not explicitly included anywhere within the written law and is only found in the official commission reports and ministerial commentaries accompanying the bill
.
. There is no normative hierarchy
indicated by the constitution: all basic rights are principally equal in value and importance. Some rights are absolute, most can be limited by parliamentary or "formal" law, many can be limited by delegation of limiting powers. They include:
In addition to these classic rights the revision of 1983 introduced a number of social rights. The distinction between the two categories is not strictly based on any legal doctrine and in fact the social right articles contain many freedom rights. The social rights are:
§23: Freedom of education
Freedom of education (Article 23), occasionally also termed Right to education
, is an extension of Freedom of Religion
. The Dutch education system is characterized by ideological divisions. The constitutions of 1814 and 1815 expressed the principle of neutral state education; even in private schools giving a full curriculum religious education was forbidden. Parents wanting their children to be given some formal religious instruction had to send them to special bible classes in Sunday school
s. In the revision of 1848 the freedom of education was first expressed. However this was a negative right: parents were at liberty to let their children be educated in denominational schools, but had to pay for this themselves, whereas state schools offered free education. As the frame of government grew ever more democratic, this arrangement proved untenable in the gradually becoming more "pillarised
" Dutch society. The school system became the central battleground of political change: the school struggle
between elitist neutral liberals
and conservatives on the one and mass-oriented confessional
protestants and Catholics and eventually socialists
on the other hand. In 1889 a system of school funding for denominational schools was introduced; in the revision of 1917 this was formalised by a guarantee of full constitutional equality between public and special schools
: the Pacification. Even in 1983 this issue remained so sensitive that government and parliament failed to reach consensus over a changed redaction. As a result Article 23 remained unchanged. It is therefore outside of the uniform terminology and systematics of the renewed constitution: some elements of Article 23 are absolute rights, others can be limited by law, for some this limitation can be delegated to lower administrative bodies — but it is impossible to understand from the article itself what is the situation for each element; this can only be learned from case law and doctrine. Absolute is the right to education itself (subarticle 2), the equality between public and special schools and the duty of the State to finance them all. The right to education is primarily a right to give education of any kind; the right to be educated is seen as derived; parents are free in the choice of schools. The right implies the right to found schools, the right to freely choose their underlying religion or philosophy of life and the right to organise them in accordance with such religion or philosophy. So not all "special" schools are denominational; some are e.g. anthroposophic
. All have to be funded by government and with the strictest equality (subarticle 7); until recently law stated that this equality was nominal, meaning that if a municipality spent a certain sum per student in public schools, exactly the same sum had to be spent in its special schools. The right can be limited by formal law in that minimal quality requirements can be imposed (subarticle 5), both as regards the level of education and the standard of organization. Some of this power is in fact delegated to lower bodies; one of the breaking-points in 1983 was the refusal of parliament to express this in the constitution. The duty of State to (equally) fund is limited to free compulsory education
(presently until the age of sixteen); Subarticle 7 however states that law will specify the conditions under which non-compulsory education will be funded; unsurprisingly there is in fact in this field also strict equality. Subarticle 1 expresses the social right that education in general is an ongoing concern for the government; Subarticle 4 states that municipalities have the duty to provide for sufficient primary schools.
For an English-language history of the political battle that led to this article, see:
, but embodies it fully. The King is however head of state
and so a special paragraph is dedicated to the King in this quality.
Article 24 stipulates that there is kingship and that this kingship is held by William I of the Netherlands
and his lawful successors. Articles 25 and 26 regulate the line of succession to the Dutch throne
; since 1985 female successors have equal rights to the throne. Further articles regulate abdication
(Article 27); parliamentary approval of royal marriage on penalty of loss of the right to the throne (Art. 28); the exclusion of unfit possible heirs (Art. 29); appointment of a successor if heirs are absent (Art. 30 and 31); the oath and inauguration
in the capital of the Netherlands
, Amsterdam
(Art. 32); the age of royal majority at eighteen (Art. 33); guardianship
over a minor King (Art. 34); declaration by Parliament of the King's inability (Art. 35); temporary relinquishment of the exercise of royal authority (Art. 36); regency
(Art. 37 and 38); the membership of the Royal House
(in practice mainly consisting of members of the House of Orange) (Art. 39); its payment (Art. 40) and the organisation of the royal household
by the King (Art. 41).
Article 42 states the main principles of Dutch government: that it is formed by King and ministers (Subarticle 1) and that "the King is inviolate; the ministers are responsible" (Subarticle 2). Before 1848 the inviolacy of the King was interpreted as a judicial one: he could never be tried in court for whatever reason. This is still so, but ministerial responsibility
implies there is since the revision of 1848 primarily a political inviolacy. This means that the King cannot act in a public capacity without ministerial approval: externally the governmental policy is always represented by the responsible minister who, should he feel that the King's personal influence in it threatens to become too predominant, has to resign if he cannot prevent it; what happens internally between King and ministers is the Crown Secret, never to be divulged. What little of it nevertheless has come to the public attention, shows that the common conception that the kingship since the reign of William III of the Netherlands
has in fact been almost fully ceremonial, is not supported by the facts. Often it is assumed that there is a "derived ministerial responsibility" for all members of the Royal House.
The Prime Minister
and the ministers are appointed and dismissed by Royal Decree (Article 43). Such decrees are also signed by the Prime Minister himself, who signs his own appointment and those of the others (Article 48). Like the King the Dutch Prime Minister is also not the Head of Government
— the Netherlands have none — but he is normally treated that way abroad. Royal decree also institutes the ministries
(Article 44), which have tended to be very variable in number and scope, and non-departmental ministers
(Subarticle 2), who officially have no ministry but whom in fact is assigned the necessary personnel and who sign and are responsible for a partial budget. The ministers together form the Council of Ministers (Article 45), presided by the Prime Minister (Subarticle 2), which assembles (in fact weekly) to promote the unity of the general governmental policy (Subarticle 3). Though existing since 1823, this council has only been mentioned since the revision of 1983; its constitutional powers as such are almost nil. The proceedings are secret for a period of fifty years. Outwardly the council acts as if there were complete agreement between all ministers: the so-called "homogeneity". By Royal Decree are appointed secretaries of state (Article 46); these are subordinate to a certain minister who is fully responsible for their acts (Subarticle 2). All laws and Royal Decrees have to be countersign
ed by the Prime Minister and the responsible minister(s) or secretaries of state (Article 47). The countersign has been mandatory since the revision of 1840. Since 1983 such laws and decrees also have to be affirmed by a signed affirmation; it is usually assumed these acts coincide. All ministers and secretaries of state have to swear an oath of purification (declaring to not having bribed anyone to obtain their office, nor having been bribed to commit certain acts when in office) and swear allegiance to the Constitution (Article 49).
The individual ministers do not have a (general) executive power, other than that which is attributed to them by special law.
Article 50 states that there are States-General
and that these represent the whole of the people of the Netherlands. Thus a clear distinction is made to the situation under the confederal Dutch Republic
when the States-General represented the provinces
. Doctrine holds that the article also entails that political parties have to give priority to the public interest, as opposed to the particular interests of their constituents. Article 51 specifies that the States-General consist of a House of Representatives of the Netherlands (lower house
) of 150 members and a Senate (upper house
) of 75 members — the constitution deliberately mentions the House of Representatives first to emphasize its political primate. Subarticle 4 mentions that both Houses can gather in an indivisible United Assembly of 225 members, a joint session necessary to perform some acts, such as the appointment of a new King in absence of royal heirs. When in United Assembly the President of the Senate is President of the States-General (Article 62); the House of Representatives has tried to change this in the revision of 1983 but has twice been defeated by the Senate defending its privilege. The Houses sit for four years (Article 52). They are elected on basis of proportional representation
(Article 53) and by a secret ballot (Subarticle 2). The House of Representatives is elected by all Dutch citizens over the age of eighteen (Article 54), except those who have been disqualified by a court sentence as part of their punishment for a crime or those who have been declared incapable by court because of insanity (Subarticle 2). Formal law can limit the right to vote to resident nationals only but presently does not. The Senate is elected by the States Provincial (Article 55).
To be eligible to be elected it is necessary to be of Dutch nationality, to be over eighteen in age and not to have been excluded from the right to vote (Article 56); there are also certain incompatibilities of function (Article 57), the most important of which is that a minister not belonging to a demissionary cabinet cannot be a member of the States-General, a stark contrast with the situation in United Kingdom
or Germany
. This principle underlies the political dualism of Dutch politics. The Houses investigate the Letters of Credence
of new members, in this case a written affirmation by the central voting office that they have indeed obtained the necessary number of votes. After the investigation new members swear four oaths: the oath of purification, the oath of allegiance to the Constitution and the oath of loyal discharge of their office are demanded by Article 60; the oath of loyalty to King and Statute is demanded by Article 47 of the Statute of the Kingdom, the higher Constitution of the Realm. All other issues pertaining the elections are regulated by formal law; delegation is possible (Article 59).
Each House appoints its own President from its members (Article 61) and a clerk, not from its own members; no officials of the States-General may be member of the States (Subarticle 2). Law regulates the remuneration of the members; delegation is possible; such law can only be approved by a two thirds majority (Article 63).
Article 64 states that government can dissolve each House by Royal Decree. Within three months elections have to be held (Subarticle 2). The duration of a new House of Representatives after dissolution is determined by law and not to exceed five years (Subarticle 4). The dissolution only takes effect when the new House meets, to avoid a period without representation. Dissolution of Parliament was in the 19th century an instrument for government to decide a conflict with the House of Representatives by submitting the issue to the voter. Unwritten law developed between 1866 and 1868 that this should not be done more than once over the same issue. The last instance occurred in 1894. In the 20th century such "conflict resolution" was replaced by "crisis resolution" whenever a political coalition fell apart and could not be reconciled; the government then resigns and instead of trying to find a new coalition majority, decides on holding new elections, normally in accordance with the wishes of parliament itself. Earlier typically an "interim cabinet" was formed to arrange for the elections, but this hasn't happened since 1982.
Article 65 states that the parliamentary year is opened on the third Tuesday of September (Prinsjesdag
) by the King holding the Speech from the Throne
. The same day the minister of finance
presents the yearly national budget. The sessions of the States-General are public (Article 66), but the session will be secret (In camera
) when the House in question so decides (Subarticle 3) which can be proposed by a tenth of the quorum
or the President, on which proposal the doors are closed immediately for the vote (Subarticle 2). Normally there is a quorum of a half to start a session or to take any decision (Article 67). Decisions are taken by majority
(more than half of the votes, Subarticle 2) and without mandate (Subarticle 3) — a reference to the situation under the Republic when each delegate had to vote on instruction from the nobles or city councils he represented. On demand of a single member the vote must be oral and by roll call
; no member may abstain.
The States-General have an absolute right to information from the government in writing or in person, only constitutionally limited by State interests, such as the national security
(Article 68). Doctrine holds that there can also be "natural impediments" justifying that a minister fails in answering questions, such as the circumstance that he simply doesn't know the answer, that he has already answered or that he is about to answer much more completely by issuing a written report on the question. Another doctrinal limitation is the ministerial responsibility: a minister is not obliged to give information about a subject for which not he is responsible but his colleague. Government members have access to the sessions and can freely partake in the discussions (Article 69); they can also be invited to do so by the Houses (Subarticle 2). Such an invitation is in fact an order: government members are not at liberty to refuse. They do however have the right to invite any expert to assist them in the discussions (Subarticle 3). All persons partaking in the deliberations of parliament or in the parliamentary commission meetings have legal immunity
regarding any communication they made, either in speech or in writing (Article 71). Otherwise the members have no parliamentary immunity
.
The States-General have the right of inquiry (Article 70). They can by majority vote empower a commission that in public or secret hearings can investigate any subject. Any person in the Realm is obliged to appear and answer their questions; it is a crime not to obey. This right can be limited by formal law; delegation is possible. Sixteen such inquiries have been held since 1848, one of them, about the events in the Second World War, lasting from 1947 till 1956.
The Houses each determine their own Rules of Procedure (Article 72). As the legislative is in the Netherlands formed by parliament and government in cooperation, these Rules of Procedure are not formal laws but have a sui generis
"legal" status.
apart from parliament. The most important of these is the Council of State
(Raad van State). Any proposal of law in the broadest sense and any proposed treaty is in principle first submitted to the Council of State for legal comment; this can be limited by formal law, which however only does so for trivial cases (Article 73). Though officially such comment is merely an advice, it is very rare for law proposals to remain unchanged if the judgment of the Council is negative. The Council is seen as the guardian of legislative quality; no minister can ignore its opinion without dire effects on his own reputation. Thus the Council in fact codetermines the legislative process. The Council also acts as the highest court for administrative appeal
(Subarticle 2 and 3); it thus has the final say on the way the country is actually ruled, though this is limited by the fact such appeals can only be made on formal or procedural grounds. The large influence of the Council is not always appreciated by external and internal observers. If the King is unable to exert the royal authority and there is as yet no regent, the Council exerts the royal authority (Article 38). The Council is officially presided by the King (Article 74); in view of the ministerial responsibility
he in fact only does so on special occasions: normally the current chairman is the vice-president of the Council, some times by journalists called the "Viceroy of the Netherlands". The probable heir becomes a member of the Council when he reaches the age of eighteen and often does attend the meetings. Law can give other members of the Royal House the right to attend; it in fact determines that they nor the heir have voting powers. The members of the Council, the Staatsraden, are appointed by Royal Decree for life (Subarticle 2); they can be dismissed on demand by Decree, or in cases determined by law by the Council itself, and law can determine an age limit (Subarticles 3 and 4). The competence, organisation and composition of the Council are regulated by law; delegation is possible (Article 75). This competence may exceed the functions indicated in Article 73; in this case no delegation is allowed (Subarticle 2). The number of Staatsraden is determined by law at a maximum of 29 ordinary members and 50 extraordinary members.
The second is the Court of Audit (Algemene Rekenkamer). Its task is to perform financial audits (Article 76). The members are appointed for life by Royal Decree from a shortlist of three, proposed by the House of Representatives (Article 77). They can be dismissed on demand by Decree or when reaching an age determined by law (Subarticle 2); or dismissed by the Supreme Court in certain other cases determined by law (Subarticle 3). Law determines the organisation, composition and competence of the Court of Audit(Article 78); delegation is possible; this may exceed the functions indicated by Article 76; in this case no delegation is allowed (Subarticle 2). In fact the Court of Auditnot only performs financial audits but also "value for money" efficiency analyses; it also reports on the effectiveness of all governmental policy via performance audit
s. Dutch legal doctrine believes in a clear distinction between efficiency and effectiveness reports and this is reflected in two separate types of investigation carried out. The budget as such is alway officially approved, be it with "comments" when irregularities have been discovered; these then have to be remedied by special law. The effectiveness reports, carried out in great detail, in full independence and without the slightest regard for political sensitivities, have given the Court of Audita large political influence, even more so than the British National Audit Office
.
The third is the National Ombudsman
, a relatively new function; he may investigate by his own initiative or on request of anyone, the actions of State bodies or other governmental bodies indicated by law; this indication can be delegated (Article 78a). The ombudsman
and his substitute are appointed by the House of Representatives for a certain period of time, to be determined by law. They are in any case dismissed by the House of Representatives on demand and when reaching a certain age (Subarticle 2). Law determines the competence of the ombudsman and the way he proceeds; delegation is allowed (Subarticle 3). His competence may by law be determined to exceed that given in Subarticle 1; delegation is allowed (Subarticle 4) — in contrast with the arrangement given for the Council of State and the Court of Audit.
The constitution has a general Article 79 founding the establishment of other advisory bodies, the "permanent advisory colleges". The law regulates the organisation, composition and competence of these bodies (Subarticle 2); other competences than mere advisory ones may be attributed by law (Subarticle 3); in both cases delegation is allowed. There used to be a great many of these advisory bodies; after 1996 their number was brought back to a few to economise. The advice of all bodies indicated in Chapter 4 is in principle public; the law regulates the way it is published; delegation is allowed (Article 80); it is submitted to the States-General (subarticle 2).
The Legislative is formed by Government (i.e. King and ministers) and the States-General in cooperation (Article 81), although the term "legislative" is not actually used: the article simply states that government and the States-General together make laws. This means that the Dutch concept of "formal law" cannot simply be equated to "Act of Parliament", as government and parliament act in unison in creating laws. In the Dutch constitutional system there is no decisive referendum
, although sometimes consultative referenda are held, like the one in 2005 in which the people advised to reject the European Constitution
; the Dutch people is thus not a direct lawgiver.
Bills are presented by the King or by the House of Representatives, which thus has the right of initiative (Article 82). Some bills have to be presented by the States-General in United Assembly (subarticle 2). The Senate cannot propose law. The ministers can but in fact act through the King who sends a Royal Missive (Article 83), containing the proposal, which is only signed by himself, thus without countersign. The House of Representatives has the right of amendment
; government too may amend
(Article 84). The Senate only can pass or reject laws in full (Article 85), defended by the responsible minister or by members of the House of Representatives having taken the initiative to propose the law; however, in practice it can send the proposal back asking for a novelle to be passed by the House of Representatives, in fact an amendment of law. Bills may be withdrawn by the proposer until passed (Article 86), but only by a majority of the House of Representatives if the bill has been presented by some members of the House of Representatives and has been passed by the House of Representatives. Bills become valid law once they have been passed by Parliament and have been affirmed by the King (Article 87). It is generally assumed that this also fulfills the demand of signature by Article 47. The affirmation needs sign and ministerial countersign but also the older Royal Order has to be signed and countersigned, ordering to publish the law in a special publication, the Staatsblad van het Koninkrijk der Nederlanden (Bulletin of Acts, Orders and Decrees of the Kingdom of the Netherlands, also called Bulletin of Acts and Decrees). Only after such publication the law has an external binding force (Article 88).
In the Dutch constitutional system there is not only formal law; also other general governmental regulations are recognised, binding the citizen; the overarching concept is called "material law". These other regulations are the "other prescripts" mentioned in the heading of §1. Only the most important subcategory of these is explicitly mentioned in the constitution, in Article 89: the Algemene maatregelen van bestuur, "General Administrative Orders". To avoid doctrinal strive over what orders exactly are covered by this concept, a consensus has developed that a strict formal definition can be applied: all general orders made by Royal Decree (Subarticle 1) that have been submitted to the Council of Ministers and to the Council of State and have been published by the Staatsblad, are General Administrative Orders. Since the Second World War a doctrinal consensus has gradually developed that all general Royal Decrees have to conform to these conditions to be valid and that earlier practices to issue general Royal Decrees without meeting these three formalities — such Decrees, general or otherwise, are called "minor Royal Decrees" — can no longer result in regulations with binding force towards the citizen. Since 1889 the constitution determines that all prescripts with a penal character have to be based on formal law and that this law imposes the penalty (Subarticles 2 and 4). This includes the Royal Decrees and thus the General Administrative Orders. A doctrinal consensus has developed however that all General Administrative Orders, not just those with penal content, have to be based on formal law to be valid, with the competence to regulate delegated by such law.
The second paragraph of Chapter 5 contains several articles of disparate administrative content; but they are not the same as the "other prescripts" of §1; the redaction of the headings is generally seen as confusing and infelicitous on this point. Most articles in §2 are combined in coherent groups.
The first of these groups consists of articles pertaining to international law and treaties. Article 90 states that it is the duty of government to promote the international rule of law
. The Netherlands is home to several International Courts
. Doctrine holds that this article also attributes the general right to conclude treaties. Article 91 states that the Kingdom shall not be bound by treaty without prior approval of the States-General, except for those cases where law determines no such approval is necessary. Such approval may be tacit (Subarticle 2). Despite this, if not either a reservation of approval is made on conclusion of the treaty, or the treaty contains a ratification clause, treaties are according to international law binding upon conclusion. The article must thus be seen as imposing a duty upon government to arrange for such reservation or clause. Subarticle 3 determines that if a treaty conflicts with the Constitution, it has to be approved by a two thirds majority of both Houses. Whether such conflict exists is decided by the States-General; article 6 of the lower Rijkswet goedkeuring en bekendmaking verdragen determines that this decision has again to be made by special formal law. A special implementation by law of the 1992 Treaty of Maastricht determines that certain European Community decisions having force of treaty have to be approved by Parliament prior to even the conclusion itself. By treaty legislative, administrative and judicial powers may be conferred on organisations established under international law (Article 92). This has been done on many occasions, e.g. on the Benelux
, the European Community, the United Nations
, the Council of Europe
and NATO.
According to present doctrine, that of "treaty monism
", treaties are in the Dutch legal system in principle self-executing; no special transformation is needed by implementing special law, as in countries with a "dualistic" system (such as the United Kingdom). However, when the present articles covering this subject were last revisioned, in 1953, doctrine was divided and some defended a more dualistic position, that of "limited monism". They demanded the consititution to be neutral on this issue and this has led to some infelicitous results. Government originally intended that Article 93, stating that treaties of a generally binding nature would only have such binding force after they had been published, to be simply a safeguard, protecting the citizen against duties imposed on him by such treaty. However, the "limited monists" held that only such published treaties are self-executing and that thus Article 93 is the basis for all treaty monism; to appease them government stated that the article should in any case be read as covering also the treaties conferring rights on the citizen and imposing duties upon government. The unintendeed result was that government might thus in principle withhold rights to the citizen by not publishing the treaty. Article 94 determines that legal prescripts are inapplicable if they conflict with treaties of a generally binding nature. This means that laws can be tested against treaty norms and obligations. Dutch courts have however been very reluctant to do so, limiting this to cases where government has been left no freedom of policy at all by the treaty, or to severe formal and procedural defects. The case law is very complex and contradictory, complicated by the fact that the phrase "generally binding nature" is assumed to have exactly the same meaning in both articles. Article 95 states that law regulates the publication of treaties or (binding) decisions of international organisations; delegation is allowed.
A second group of articles consists of those pertaining to the national security. Before the revision of 1983 these were combined in a separate Chapter 10; the articles as such remained largely unchanged in 1983, but were finally fully revised in 2000. Article 96 states that a prior approval of the States-General is necessary for the government (since 1983 no longer the King) to declare that the Kingdom is in a state of war
. This approval must be given by the United Assembly (Subarticle 3), as it would be most embarrassing if the House of Representatives approved but the Senate withheld approval. If the existing war conditions make such an approval impossible it is not required. Indeed the approval has little value in any case: it should be noted the subject of the article is not the classic declaration of war
, as such a declaration according to doctrine might constitute a war crime
by implying a war of aggression
forbidden by international law. It is a simple declarative statement of fact, without legal consequences, that a war situation has come to exist. The doctrine of many other nations makes no such distinction. Article 97 states that a defence force exists to defend the Kingdom and its interests and to maintain and promote the international rule of law; Subarticle 2 determines that the supreme authority over this defence force is exercised by the government; there is thus no constitutional supreme commander
. This defence force consists of volunteers and may contain conscripts (Article 98). Since Napoleonic times conscription
had been the rule and voluntary service the exception; this has now been inverted to accommodate the creation of a fully professional army in 1997. However the old laws regulating conscription have only been suspended, to be reactivated in case of emergency; this is given a constitutional basis by Subarticle 2; delegation is allowed. A provision that has remained unchanged is Article 99, stating that law regulates the exemption of military service
for conscientious objector
s; delegation is allowed. In 2000 a new Article 99a was inserted, that law has to regulate civil defence; the older legal system regulating this issue had been largely abolished since the end of the Cold War
. Delegation is allowed. Government has to inform the States-General about any intended foreign deployment of Dutch forces outside of defence treaty obligations, thus to protect the international rule of law and for humanitarian missions (Article 100). In an emergency situation such information can be given after the facts. Both government and parliament tended to present this duty as a kind of implicit approval, as parliament could in principle force government to call off the mission, but the Council of State has made clear this is at least formally not the case. Article 101 (mobilisation) has been abrogated in 1995, Article 102 (defence budget and prohibition of billet
ing) in 2000. Article 103 states that law has to determine in which cases a Royal Decree may declare a state of emergency
to maintain external or internal security; delegation is allowed. The powers of lower administrative bodies can be limited; the basic rights expressed in Articles 6,7,8,9, 12 Subarticle 2, 13 and 113 Subarticle 1 and 3 can be infringed upon (Subarticle 2). Royal Decree may end the state of emergency. The States-General decide in United Assembly whether the state of emergency must be maintained, immediately after its declaration and as often as they see fit afterwards (Subarticle 3).
The third group consists of articles pertaining to financial issues. Imposed taxation must be based on formal law (Article 104). Delegation is allowed. However, to indicate this must be done hesitantly, parliament insisted on a slightly different terminology: instead of krachtens de wet the phrase uit kracht van wet was used; both mean "by force of law" or "pursuant to law"; but the second expression puts somewhat more emphasis on the force of the law and thus on the fact all delegation is ultimately derived from law. A yearly budget is on Prinsjesdag presented to the States-General, its balance sheet approved by the Court of Audit(Article 105). Delegation is not allowed. The budget debates are held by the House of Representatives, with a separate treatment of each departmental budget and of special interdepartmental budgets; since 1971, the Senate immediately approves the budget formally in exchange for full policy debates. Article 106 states that formal law regulates the monetary system
. Delegation is allowed. The article has lost its relevance by the introduction of the euro
in 2002; doctrine holds that the constitution does not demand a purely national system.
A fourth and last group of articles pertains to judicial issues. Article 107 is the "codification article". It imposes that that private law
, penal law
and the separate procedural law
s covering these subjects must indeed be formal law and treated in a general Civil Code
and a Penal Code, although certain subject might be covered by special laws. Delegation is allowed but doctrine holds that criminal law
(which is seen as a more limited field than general penal law) must be determined by formal law only. This means provinces and municipalities cannot create their own criminal code
s and government cannot make a certain act a crime by a Royal Decree not based on formal law. As the administrative law
of the Netherlands is so complex, it was deemed impossible to incorporate it in a single code, but its general rules must be covered in a general code (Subarticle 2) as has indeed gradually been done since the nineties, be it with great difficulty. Article 108 (investigative bodies for civil complaints) has been abrogated in 1999. Article 109 states that the position of civil servants, including their protection and workers' participation must be determined by law. This has as yet not been done in any general way. Doctrine holds that civil servants enjoy full protection by constitutional basic rights. Article 110 imposes a duty upon government to safeguard by formal law sufficient public access to information regarding governmental activities. Delegation is allowed. The government does not see this as some general "right to public access to information" and this has been the reason not to insert it into Chapter 1, but this interpretation is quite popular in doctrine as the right does even more resemble a freedom right than a social right.
Article 111, the last of this paragraph, stands alone; it determines that formal law shall instate honorary Royal Orders of Knighthood. These are in fact the Order of William
, the Order of the Netherlands Lion and the Order of Orange-Nassau
. They do not include Royal House Orders, which are the personal prerogative of the King, such the House Order of Orange
and the later Order of the Crown
and The Order for Loyalty and Merit
. Each year many thousands are honoured by the constitutional orders.
and other court
s. The term "judiciary" is not meant to indicate the Judicial of the Trias politica, but rather a purely organisational complex of judicial institutions: those courts are simply part of the judiciary that are designated as such by formal law (Article 116). Their organisation, composition and competence is regulated by law; delegation is possible (Subarticle 2). However, one safeguard that is typical of the Judicial, to guarantee its independence, is also characteristic of the Dutch judiciary: its members are appointed for life (Article 117); they can resign voluntarily or will be fired at an age determined by law (Subarticle 2); present law prescribes an age of seventy. Other principles, like impartiality
, are not explicitly mentioned in the constitution. The law regulates to which extent persons who are not members of the judiciary, partake in its rulings; delegation is possible (Article 116, sub 3). This refers to (scientific or other) experts on a certain subject, not to a system of jury
trials, which is absent in the Netherlands.
Article 112 states the main principle: the power to judge disputes of private law
and the law of obligations
is exclusively attributed to the judiciary (subarticle 1); formal law can attribute other judicial powers to either the judiciary or other courts; delegation is possible as regards the regulation of the procedures and the implementation of rulings (subarticle 2). Doctrine holds that the competence of the court is determined by the nature of the legal rule on which the plaintiff founds his claim. This implies that even in administrative disputes the citizen can always assure some legal resort, simply by bringing a tort
action against the State: the judiciary is then competent. Article 115 states that in the cases covered by Article 112, sub 2, always some administrative appeal is possible. However, it does not guarantee a decision by an independent court: on 23 October 1985 the European Court of Human Rights
ruled that the Crown Appeal by the Council of State, then by exclusion the highest administrative appeal court, lacked the necessary independence. This necessitated a complete revision of the Dutch administrative court
system, resulting in a much expanded access to independent administrative courts.
Article 113 exclusively attributes also the power to judge offences to the judiciary. However, law can regulate the establishment by government of disciplinary courts outside of the judiciary. Delegation is possible (Subarticle 2). The judiciary is attributed the exclusive right to impose a punishment
entailing a deprivation of liberty (Subarticle 3). This does not refer to forms of detention
that are not punitive in nature. Law may regulate exceptions to the provisions of Article 113 in case of trials held outside of the European territory of the Netherlands or of proceedings of martial law
; delegation is possible (Subarticle 4).
Article 114 entails a civil right: the prohibition of the death penalty, included by the constitutional revision of 1983 after the death penalty itself had already been abolished in 1870. The article is not a guarantee, as doctrine holds that in a state of emergency any right might be suspended by unwritten constitutional emergency law; also in principle some treaty might oblige the judge to impose the death penalty. However, in fact the Netherlands have ratified the Sixth Protocol of the European Convention on Human Rights
, also containing a prohibition and having precedence over any other treaty. Therefore, since 1986 no Dutch judge has any formal competence to impose the death penalty. Nevertheless, the Dutch government might by treaty be obligated to cooperate with some international tribunal with the powers to impose the death penalty, such as the International Military Tribunal once was.
Article 118 regulates the Dutch Supreme Court, the Hoge Raad der Nederlanden
. Their members are appointed from a shortlist of three, made by the House of Representatives of the States-General (Subarticle 1). Formal law determines in which cases the Supreme Court may reverse judgments of lower courts (cassation
) for violation of the law (Subarticle 2). The Supreme Court in revision only decides points of law, not substantial matters. Other duties may be attributed by formal law (Subarticle 3). These other duties in fact include the resolving of conflicts of competence between courts, penal trials against judges for offences committed in office, disciplinary and advisory tasks and the decision in disputes about prizes taken by Dutch vessels. Article 119 attributes the exclusive right to the Supreme Court of trying members of the States-General, ministers and secretaries of state, whether incumbent or formal, for offences committed in office. It also states such a trial is instigated by either a Royal Decree or a decision by the House of Representatives.
Article 120 states that no judge will judge the constitutionality of laws and treaties. Therefore no constitutional review of formal laws is possible; the Netherlands lack a Constitutional Court. However, regulations of lower administrative bodies may be tested against the constitution by the courts. Also any law may be tested against any self-executing treaty, though this rarely happens.
Article 121 states three safeguards for a fair trial: the first is that trials are public. The second is that judgments must specify the considerations and grounds upon which they are based. The third is that any judgment must be pronounced in public. Any exception to these principles can only be made by formal law; no delegation is possible. Article 122 states that pardon
is granted by Royal Decree, on advice by a court indicated by law. Formal law regulates the procedure; delegation is possible. Also an amnesty
is possible by a special law or by force of such law; delegation is possible (Subarticle 2).
unitary state
, meaning that although the state is not a federation
, some bodies have an autonomous power of regulation, either based on a territorial division or on a functional division.
Article 123 states that province
s and municipalities
can be established and abolished by formal law, hereby indicating the two levels of territorial division. The twelve Dutch provinces still largely coincide with their medieval predecessors, with the exception of Flevoland
, and North
and South Holland
, which were created in 1815 from Holland; the municipalities have recently been greatly decreased in number. Formal law regulates changes in their boundaries, delegation is allowed (Subarticle 2).
Article 124 states the main principles of decentralisation: provinces and municipalities are competent to regulate and administrate their internal affairs (Subarticle 1), delegation is possible — but only by the provinces and municipalities themselves (Article 128); nevertheless demands, regulated by formal law, can be made by the central government on such regulative and administrative powers; delegation is allowed (Article 124 sub 2). So the lower territorial administrative bodies have on the one hand a relative autonomy — but on the other hand they must work within the national legal framework, loyally implement national government policy and are subject to central control. This is further covered by Article 132: the standard organisation of provinces and municipalities and the compoistion and competence of their administrative organs is regulated by formal law (Subarticle 1); how they are controlled is regulated by law (Subarticle 2); their decisions shall only be subject to prior supervision in cases determined by law or by force of law (Subarticle 3); their decisions shall only be quashed by Royal Decree and on grounds that they violate the law (in the broadest sense: the recht) or conflict with the public interest (Subarticle 4). Law will in general regulate the kind of provisions to be made if provinces or municipalities fail to meet the demands of Article 124 sub 2 (Subarticle 5). Which taxes may be levied by provinces and municipalities and their financial relationship with the state, are determined by law (Subarticle 6).
Article 125 indicates the main administrative organs of the lower territorial administrative bodies: in the case of the provinces these are the States-Provincial
; the municipalities are administrated by the municipal councils. Their sessions are public, except in cases regulated by formal law; delegation is allowed (Subarticle 1). The sessions of the States-Provincial are presided by the Commissioner of the King
, those of the municipal councils by the mayor (Subarticle 3). The Commissioner of the King is also part of the provincial administration as are the Deputised States
; the mayor is also part of the municipal administration, as is the College of Mayor and Aldermen
(Subarticle 2). In this system the administrative organs exert the function of both the executive and legislative (Article 127); however to form the daily administration they appoint Deputised States (for provinces) or the Colleges of Mayor and Aldermen (municipalities). In 2002 the system underwent a major revision the "aldermen" (wethouders) and States Deputised were no longer allowed to be members of the municipal councils or States Provincial respectively. This makes their function designation a misnomer, although the etymology
of the word "wethouder" or "deputised" is no longer commonly understood. The Commissioner of the King and the mayor are officials, appointed by Royal Decree (Article 131). A proposed revision to introduce an elected mayor, recently was rejected by the Senate. The mayor has some legal executive powers of his own, mainly regarding the protection of public order, but these have no direct constitutional basis, they are delegated by the national legislator. Article 126 states however that formal law may determine that instructions regarding his office may be given to the Commissioner of the King by the national government. For cases of gross neglect of administrative duty, formal law will regulate the kind of provisions to be made in deviation of Articles 125 and 127 (Article 132, sub 4)
The members of the States-Provincial
and the municipal council are directly elected by their constituents. The conditions of the right to elect and be elected are the same as those regarding the elections of the House of Representatives (Article 129 sub 1). However formal law may give inhabitants of municipalities, that do not have the Dutch nationality, the right to elect, and be elected in, the municipal council, if they meet the other conditions (Article 130). This right has indeed been given to certain categories of foreign nationals, e.g. all citizens of the European Union
. The elections take place within a system of proportional representation (Article 129 sub 2); the vote is secret and the organisation of the voting is regulated by law (Subarticle 3). The term of the States-Provincial and the municipal council is four years, unless formal law determines otherwise (Subarticle 4) Law determines possible incompatibilities of function, and may determine that family ties, marriage or the commission of acts indicated by such law may lead to a loss of membership (Subarticle 5). E.g. membership of a municipal council is incompatible with that of the Council of Ministers; a lawyer will lose his membership of a municipal council if he represents his municipality in court. All members vote without mandate (Subarticle 6). This is a reference to the situation under the Republic when the members of the States of a province voted on instruction from the city councils they represented.
(The Netherlands
, Aruba
, Curaçao
and Sint Maarten) has its own constitution. These constitutions are legally subjected to the Statute of the Kingdom of the Netherlands, which is the constitution of the entire Kingdom. The Statute however mainly describes the relations between the different parts of the Kingdom. In addition it stipulates that each country is obliged to promote human rights, listed in a special bill of rights, and decent governance. The Kingdom of the Netherlands is a federacy
, where the central government gives considerable autonomy to one part of the country (Aruba, Curaçao and Sint Maarten), but retains control over a large part (European Netherlands). There is a Government of the Realm, a Legislative of the Realm and a Supreme Court of the Realm. However these bodies are only fully formed on special occasions and by appointing special Antillian members to the normal Dutch government, parliament and Supreme Court. One of the members of the Dutch council of ministers is always also appointed a permanent "Minister of Antillian Affairs". Since 1998 this is the Minister of the Interior and Kingdom Relations; when he is acting in this capacity the council has the status of the Government of the Realm to treat minor issues. Though the Statute is in principle higher than the Dutch Constitution, there is no legal mechanism to enforce this. The Dutch Supreme Court has consistently ruled that it is forbidden for judges to test laws and administrative acts against the Statute. However the Government of the Realm can strike void any law of Aruba, Curaçao and Sint Maarten for being incompatible with the Statute. This asymmetry and the fact that foreign affairs and the defence of the Kingdom are administered by the Dutch Government in its capacity of Government of the Realm show that the frame of government of the Kingdom has also elements of a decentralised unitary state
. The Statute can only be changed with the consent of all countries within the Kingdom; the laws to this effect can be adopted with a simple absolute majority in each of their parliaments.
s must hear all cases brought before them.
(more than 50%). This law is called a voorstelwet or 'law to propose changes to the constitution' (lit.
proposal law) and does not alter the constitution, but declares there are sufficient grounds for a certain proposal to change the constitution to be considered. The House of Representatives must then be dissolved and general elections held. The proposed changes to the constitution are then discussed a second time, this time needing a two-thirds majority in both houses of parliament to approve them. This is intended to give voters a say in the matter, by allowing them the opportunity to elect a parliament to vote down the changes if desired. In practice, however, the House of Representatives has never been dissolved and elections held specially for this purpose. Instead the law proposing changes to the constitution is adopted shortly before the next regularly scheduled elections. Consequently, unless early elections are held for some reason (e.g. following the collapse of the government) changes to the constitution can only occur once every four years. In earlier versions of the amendment process, the Senate was also dissolved whenever general elections were held and both Houses had approved a law to propose changes to the constitution. This was deemed a pointless addition to procedure, however, as the Senate is elected by the States-Provincial
and the States-Provincial are not dissolved following the adoption of a proposal in parliament (see elections in the Netherlands
). The Senate will therefore invariably have the same composition unless provincial elections are held as well. Neither holding provincial elections specially for this purpose, nor postponing consideration of the proposal to change the constitution until after the regularly scheduled elections is considered a desirable alternative. Changes that involve the relations between the countries of the Kingdom must be proposed by a law formulated by the Government of the Realm.
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
of the European territory of the Kingdom of the Netherlands
Kingdom of the Netherlands
The Kingdom of the Netherlands is a sovereign state and constitutional monarchy with territory in Western Europe and in the Caribbean. The four parts of the Kingdom—Aruba, Curaçao, the Netherlands, and Sint Maarten—are referred to as "countries", and participate on a basis of equality...
. The present constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
is generally seen as directly derived from the one issued in 1815, constituting a constitutional monarchy
Constitutional monarchy
Constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a constitution, whether it be a written, uncodified or blended constitution...
. A revision in 1848 instituted a system of parliamentary democracy. In 1983 the Dutch constitution was largely rewritten. The text is very sober, devoid of legal or political doctrine. It includes a bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
. Laws and treaties cannot be tested against the constitution and the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
have no Constitutional Court. The Kingdom of the Netherlands also includes Aruba
Aruba
Aruba is a 33 km-long island of the Lesser Antilles in the southern Caribbean Sea, located 27 km north of the coast of Venezuela and 130 km east of Guajira Peninsula...
, Curaçao
Curaçao
Curaçao is an island in the southern Caribbean Sea, off the Venezuelan coast. The Country of Curaçao , which includes the main island plus the small, uninhabited island of Klein Curaçao , is a constituent country of the Kingdom of the Netherlands...
and Sint Maarten: there is an overarching constitution of the entire kingdom: the Statute of the Kingdom of the Netherlands.
History
The first constitution of the Netherlands as a whole, in the sense of a fundamental lawConstitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
which applied to all its provinces and cities, is the 1579 constitution, which established the confederal
Confederation
A confederation in modern political terms is a permanent union of political units for common action in relation to other units. Usually created by treaty but often later adopting a common constitution, confederations tend to be established for dealing with critical issues such as defense, foreign...
republic
Republic
A republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
of the Seven United Provinces. The constitution was empowered by the Union of Utrecht
Union of Utrecht
The Union of Utrecht was a treaty signed on 23 January 1579 in Utrecht, the Netherlands, unifying the northern provinces of the Netherlands, until then under the control of Habsburg Spain....
, thus by treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
. Article XIII of the treaty granted each inhabitant of the Republic freedom of conscience. The Union of Utrecht treaty inspired the American Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
.
After the French invasion of 1794 the Batavian Republic
Batavian Republic
The Batavian Republic was the successor of the Republic of the United Netherlands. It was proclaimed on January 19, 1795, and ended on June 5, 1806, with the accession of Louis Bonaparte to the throne of the Kingdom of Holland....
, a unitary state
Unitary state
A unitary state is a state governed as one single unit in which the central government is supreme and any administrative divisions exercise only powers that their central government chooses to delegate...
, was proclaimed. On 31 January 1795 it issued a Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
, the Verklaring der Rechten van den Mensch en van den Burger. On 1 May 1798 a new constitution, the first in the modern formal sense, the Staatsregeling voor het Bataafsche Volk, written by a Constitutional Assembly, went into force, approved by the National Assembly. The Napoleonic Kingdom of Holland
Kingdom of Holland
The Kingdom of Holland 1806–1810 was set up by Napoleon Bonaparte as a puppet kingdom for his third brother, Louis Bonaparte, in order to better control the Netherlands. The name of the leading province, Holland, was now taken for the whole country...
, a constitutional monarchy
Constitutional monarchy
Constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a constitution, whether it be a written, uncodified or blended constitution...
, was established by the Constitutie voor het Koningrijk Holland on 7 August 1806. In 1810 the kingdom was annexed by the French Empire
First French Empire
The First French Empire , also known as the Greater French Empire or Napoleonic Empire, was the empire of Napoleon I of France...
.
After the French troops had been driven out by Russian Cossack
Cossack
Cossacks are a group of predominantly East Slavic people who originally were members of democratic, semi-military communities in what is today Ukraine and Southern Russia inhabiting sparsely populated areas and islands in the lower Dnieper and Don basins and who played an important role in the...
s, the new independent state of the Netherlands, a principality
Principality
A principality is a monarchical feudatory or sovereign state, ruled or reigned over by a monarch with the title of prince or princess, or by a monarch with another title within the generic use of the term prince....
, was established by the constitution of 29 March 1814, the Grondwet voor de Vereenigde Nederlanden. William VI of Orange, instated on 2 December 1813 as "Sovereign Prince" by acclamation
Acclamation
An acclamation, in its most common sense, is a form of election that does not use a ballot. "Acclamation" or "acclamatio" can also signify a kind of ritual greeting and expression of approval in certain social contexts in ancient Rome.-Voting:...
, and only accepting "under the safeguard of a free constitution, assuring your freedom against possible future abuses", had first appointed a number of men of good standing as elector
Voting
Voting is a method for a group such as a meeting or an electorate to make a decision or express an opinion—often following discussions, debates, or election campaigns. It is often found in democracies and republics.- Reasons for voting :...
s and these approved the constitution, written by a commission headed by Gijsbert Karel van Hogendorp
Gijsbert Karel van Hogendorp
Gijsbert Karel, Count van Hogendorp was a conservative Dutch statesman. He was the brother of Dirk van Hogendorp the elder and the father of Dirk van Hogendorp the younger....
. On 24 August 1815 William — since 16 March King William I of the Netherlands
William I of the Netherlands
William I Frederick, born Willem Frederik Prins van Oranje-Nassau , was a Prince of Orange and the first King of the Netherlands and Grand Duke of Luxembourg....
— having proclaimed himself King of the larger United Netherlands six days earlier, issued the first version of the current constitution, the Grondwet voor het Koningrijk der Nederlanden or Loi fondamentale du Royaume des Pays-Bas, establishing the United Kingdom of the Netherlands
United Kingdom of the Netherlands
United Kingdom of the Netherlands is the unofficial name used to refer to Kingdom of the Netherlands during the period after it was first created from part of the First French Empire and before the new kingdom of Belgium split out in 1830...
, now expanding his realm with the territory of the present state of Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
, which would again secede from it in 1830. It included a limited unentrenched bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
, with freedom of religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, the principle of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, the right of petition and freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
as its main points. In the Treaty of London
Eight Articles of London
The Eight Articles of London, also known as the London Protocol of June 21, 1814, were a secret convention between the Great Powers: United Kingdom of Great Britain and Ireland, Prussia, Austria, and Russia to award the territory of current Belgium and The Netherlands to William I of the...
of 1814 the Allies had ordered that the original Dutch state would devise the new constitution. It had been approved by the new States-General
States-General of the Netherlands
The States-General of the Netherlands is the bicameral legislature of the Netherlands, consisting of the Senate and the House of Representatives. The parliament meets in at the Binnenhof in The Hague. The archaic Dutch word "staten" originally related to the feudal classes in which medieval...
(consisting of 55 members) of the Northern Netherlands, but rejected by the majority of appointed electors (796 against 527) of the Southern Netherlands
Southern Netherlands
Southern Netherlands were a part of the Low Countries controlled by Spain , Austria and annexed by France...
. As 126 however had indicated that they were against because of the (by them still considered too limited) freedom of religion, which was mandatory under the Treaty of Vienna
Congress of Vienna
The Congress of Vienna was a conference of ambassadors of European states chaired by Klemens Wenzel von Metternich, and held in Vienna from September, 1814 to June, 1815. The objective of the Congress was to settle the many issues arising from the French Revolutionary Wars, the Napoleonic Wars,...
that ordered the union of the Northern and the Southern Netherlands, their votes and those of the men having refused to vote, were added to the minority, and by this infamous "Hollandic Arithmetic" William felt justified to proclaim the new kingdom.
Regarding the frame of government the 1815 constitution did not diverge much from the situation during the Republic: the 110 members of House of Representatives (lower house
Lower house
A lower house is one of two chambers of a bicameral legislature, the other chamber being the upper house.Despite its official position "below" the upper house, in many legislatures worldwide the lower house has come to wield more power...
) of the States-General were still appointed by the States-Provincial (for three years; each year a third was replaced), who themselves were filled with nobility members or appointed by the city councils, just like under the ancien régime. However, now also some rural delegates were appointed to all States-Provincial (first only true for Friesland
Friesland
Friesland is a province in the north of the Netherlands and part of the ancient region of Frisia.Until the end of 1996, the province bore Friesland as its official name. In 1997 this Dutch name lost its official status to the Frisian Fryslân...
) and the city councils were appointed by electoral college
Electoral college
An electoral college is a set of electors who are selected to elect a candidate to a particular office. Often these represent different organizations or entities, with each organization or entity represented by a particular number of electors or with votes weighted in a particular way...
s which were in turn elected by a select group of male citizens of good standing and paying a certain amount of taxes, so very indirectly there was a modicum of democracy introduced to the system. In all the administration was very monarchical, with the king appointing for life the members of the Senate, that mockingly was called the Ménagerie du Roi.
In 1840, when a new revision was made necessary by the independence of Belgium, a first step to a more parliamentary system was taken by the introduction of penal ministerial responsibility.
The constitution as it was revised on 11 October 1848 is often described as the original of the version still in force today. Under pressure from the Revolutions of 1848
Revolutions of 1848
The European Revolutions of 1848, known in some countries as the Spring of Nations, Springtime of the Peoples or the Year of Revolution, were a series of political upheavals throughout Europe in 1848. It was the first Europe-wide collapse of traditional authority, but within a year reactionary...
in surrounding countries, King William II
William II of the Netherlands
William II was King of the Netherlands, Grand Duke of Luxembourg, and Duke of Limburg from 7 October 1840 until his death in 1849.- Early life and education :...
accepted the introduction of full ministerial responsibility
Ministerial responsibility
Ministerial responsibility or individual ministerial responsibility is a constitutional convention in governments using the Westminster System that a cabinet minister bears the ultimate responsibility for the actions of their ministry or department...
in the constitution, leading to a system of parliamentary democracy, with the House of Representatives directly elected by the voters within a system of single-winner electoral district
Electoral district
An electoral district is a distinct territorial subdivision for holding a separate election for one or more seats in a legislative body...
s. Parliament was attributed the right to amend government law proposals and to hold investigative hearings. The States-Provincial, themselves elected by the voter, appointed by majorities for each province the members of the Senate from a select group of upper class citizens. A commission chaired by Johan Thorbecke was appointed to draft the new proposed constitution, which was finished on 19 June. Suffrage
Suffrage
Suffrage, political franchise, or simply the franchise, distinct from mere voting rights, is the civil right to vote gained through the democratic process...
was enlarged (though still limited to census suffrage), as was the bill of rights with the freedom of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, the privacy of correspondence, freedom of ecclesiastical organisation and the freedom of education
Freedom of education
Freedom of education is a constitutional concept that has been included in the European Convention on Human Rights, Protocol 1, Article 2 and several national constitutions, e.g. the , the Belgian constitution and the Dutch constitution...
.
In 1884 there was a minor revision. In 1887 the census suffrage system was replaced by one based on minimal wealth and education, which allowed an ever growing percentage of the male population to be given the right to vote; therefore this provision was at the time nicknamed the "caoutchouc-article". The election interval for the House of Representatives was changed from two (with half of it replaced) to four years (with full a replacement of now hundred members). Eligibility for the Senate was broadened. Any penal measure not based on formal law was prohibited.
In 1917, like in 1848 influenced by the tense international situation, manhood suffrage was introduced combined with a system of proportional representation
Proportional representation
Proportional representation is a concept in voting systems used to elect an assembly or council. PR means that the number of seats won by a party or group of candidates is proportionate to the number of votes received. For example, under a PR voting system if 30% of voters support a particular...
to elect the House of Representatives, the States-Provincial and the municipality councils. The Senate continued to be elected by the States-Provincial, but now also employing a system of proportional representation, no longer by majorities per province. The Christian-democrat parties allowed manhood suffrage in exchange for a complete constitutional equality in state funding between public and denominational schools, ending the bitter Dutch School Wars which had antagonised Dutch society for three generations.
By the revision of 1922 universal suffrage
Universal suffrage
Universal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
was explicitly adopted in the constitution, after it had already been introduced by law in 1919. Each three years half of the members of the Senate were to be elected by the States-Provincial for a period of six years, within a system of proportional representation.
In 1938 there was a minor revision, introducing some elements of the then fashionable corporatism
Corporatism
Corporatism, also known as corporativism, is a system of economic, political, or social organization that involves association of the people of society into corporate groups, such as agricultural, business, ethnic, labor, military, patronage, or scientific affiliations, on the basis of common...
by giving a constitutional base to public bodies regulating sectors of the economy. A proposal to make it possible to impeach "revolutionary" members of representative bodies, directed against communists and fascists, failed to get a two thirds majority.
After the Second World War in 1946 a revision failed attempting to simplify the revisional procedure. However a change was accepted allowing to send conscripts to the colonial war in the Dutch East Indies
Dutch East Indies
The Dutch East Indies was a Dutch colony that became modern Indonesia following World War II. It was formed from the nationalised colonies of the Dutch East India Company, which came under the administration of the Netherlands government in 1800....
.
In the revision of 1948 a complete new chapter was added to facilitate the incorporation of the new state of Indonesia
Indonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
within the Kingdom. Soon it would become irrelevant as Indonesia severed all ties with the Netherlands in 1954. Also the revision created the office of secretary of state
Secretary of State
Secretary of State or State Secretary is a commonly used title for a senior or mid-level post in governments around the world. The role varies between countries, and in some cases there are multiple Secretaries of State in the Government....
, a kind of subminister or junior minister but one fully subordinate to a certain minister.
In 1953 new articles were introduced concerning international relations, as the Netherlands were abandoning their old policy of strict neutrality.
In the revision of 1956 the constitution was changed to accommodate the full independence of Indonesia. The number of members of the House of Representatives members was brought up to 150, of Senate members to 75.
The revision of 1963 accommodated the loss of Dutch New Guinea to Indonesia. The voting age
Voting age
A voting age is a minimum age established by law that a person must attain to be eligible to vote in a public election.The vast majority of countries in the world have established a voting age. Most governments consider that those of any age lower than the chosen threshold lack the necessary...
was lowered from 23 to 21.
In 1972 there was a minor revision; the main change was a lowering of the voting age to 18.
In 1983 the constitution was almost entirely rewritten. Many articles were abolished. Social rights
Social rights
Economic, social and cultural rights are socio-economic human rights, such as the right to education, right to housing, right to adequate standard of living and the right to health. Economic, social and cultural rights are recognised and protected in international and regional human rights...
were included, most articles were reformulated (the main exception being article 23 about the still sensitive freedom of education) using a new uniform legal terminology and their sequence was changed. The bill of rights was expanded with a prohibition of discrimination, a prohibition of the death penalty, a general freedom of expression, the freedom of demonstration
Demonstration (people)
A demonstration or street protest is action by a mass group or collection of groups of people in favor of a political or other cause; it normally consists of walking in a mass march formation and either beginning with or meeting at a designated endpoint, or rally, to hear speakers.Actions such as...
and a general right to privacy.
In 1987 there was a minor revision. In the revision of 1995 the introduction of a professional army, replacing the conscript army, was regulated. In the revision of 1999 a proposal to introduce an advisory referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
was rejected by the Senate. After a minor revision in 2002, the last changes were made in 2005; a proposal to introduce an elected mayor was rejected by the Senate.
Unwritten constitutional law
Some of the most basic fundamental laws in the Dutch constitutional system are not explicitly expressed in the written Constitution. These include the rule that the Dutch monarchMonarchy
A monarchy is a form of government in which the office of head of state is usually held until death or abdication and is often hereditary and includes a royal house. In some cases, the monarch is elected...
cannot dissolve the House of Representatives more than once because of a conflict over a single political issue and that the Senate shall never block legislation for mere party politics, so that coalition government
Coalition government
A coalition government is a cabinet of a parliamentary government in which several political parties cooperate. The usual reason given for this arrangement is that no party on its own can achieve a majority in the parliament...
s (all Dutch governments since the 19th century) do not need a majority in the Senate.
The unwritten laws are most influential when a cabinet is formed
Dutch cabinet formation
The formation of a Dutch cabinet is a time consuming process, which is for the most part not codified in the constitution.- Formation process :After the elections or the fall of a cabinet, a process of cabinet formation starts...
; the procedure is not regulated by the Constitution but purely based on tradition. At the eve of the elections
Elections in the Netherlands
Elections in the Netherlands are held for six territorial levels of government: the European Union, the state, the twelve Provinces of the Netherlands, the 25 water boards, the 418 municipalities and in two cities for neighbourhood councils...
the sitting cabinet offers its resignation to the monarch, who takes it into consideration; the cabinet is now "demissionary
Demissionary cabinet
A demissionary cabinet is a type of caretaker cabinet in the Netherlands.A demissionary cabinet continues the current government after a cabinet has ended. This can either be after completion of the full term, between general elections and the formation of a new cabinet, or after a cabinet crisis...
". After the elections the King consults his advisors. He then appoints an "Informateur" who explores the possibilities of a coalition cabinet. Because of the Dutch multi-party system
Multi-party system
A multi-party system is a system in which multiple political parties have the capacity to gain control of government separately or in coalition, e.g.The Conservative-Liberal Democrat coalition in the United Kingdom formed in 2010. The effective number of parties in a multi-party system is normally...
, no political party (in the modern sense) has ever obtained a majority by itself. On the basis of the information process the King then appoints a "Formateur
Formateur
A formateur is a politician who is appointed by the head of state to lead the formation of a coalition government, after either a general election or the collapse of a previous government. The role of the formateur is especially important in the politics of Belgium, the Netherlands, Luxembourg,...
" who literally forms the government by negotiating an coalition agreement
Coalition agreement
In multiparty democracies, a coalition agreement is an agreement between the parties that form the cabinet. It codifies the most important goals and objectives of the cabinet. It is often written by the leaders of the parliamentary parties.-Examples:...
between the coalition parties and the division of the ministrial posts
Dutch ministries
There are eleven ministries of the Netherlands, all with their own minister, there are also several ministers without portfolio and about as many state secretaries...
between the parties. He also meets with candidate ministers and often becomes Prime Minister
Prime Minister of the Netherlands
The Prime Minister of the Netherlands is the chairman of the Council of Ministers of the Netherlands. He is the de facto head of government of the Netherlands and coordinates the policy of the government...
himself. The King then dismisses the sitting cabinet and appoints the new one. Since there are no political alliances and parties do not commit themselves to a coalition before the elections, a competent King can have a decisive personal influence on what coalition is formed.
In common law systems these rules would not be seen as laws but as mere legal convention
Convention (norm)
A convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom....
s as they cannot be upheld by judges; within the Dutch civil law system however they are part of the more extended Dutch-German legal concept of the Recht, the total "legal" normative structure, be it written or unwritten, so that they have full normative force. Indeed that force is much larger than with written constitutional rules; any breach of the unwritten rules would cause an immediate constitutional crisis
Constitutional crisis
A constitutional crisis is a situation that the legal system's constitution or other basic principles of operation appear unable to resolve; it often results in a breakdown in the orderly operation of government...
.
Systematics and terminology
Civil law systems are characterized by their emphasis on abstract rules and methodology. Since the Second World War there has been a dominant movement within the Dutch legal community to be fully consistent in this and incorporate the total of case law accumulated over the years into a completely new set of modern codes, while the old law books derived from the French Code Napoleon remained basically unchanged. There has been a general tendency to strive for economy of style, clarity of expression, conceptual coherence and unity of terminology. The complete revision of the Dutch constitution in 1983 is part of this process. Combined with an absence of explicit legal doctrine the result can be deceptive, as the simple phrasing hides the underlying implicit doctrine.Because there is no Constitutional Court testing laws and acts against the constitution, much of the systematics are centered on the problem of delegation
Delegation
Delegation is the assignment of authority and responsibility to another person to carry out specific activities. However the person who delegated the work remains accountable for the outcome of the delegated work. Delegation empowers a subordinate to make decisions, i.e...
. If the legislative were allowed to delegate its powers to the government or to lower decentralized bodies, this would threaten democratic legitimacy and the constitutional protection of the citizen (as citizens have no recourse to a Constitutional Court). Therefore delegation is only allowed if articles contain the terms "regulate" or "by force of law"; otherwise it is forbidden. This rule itself however, being legal doctrine, is not explicitly included anywhere within the written law and is only found in the official commission reports and ministerial commentaries accompanying the bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
.
Chapter 1: Basic rights
Chapter 1 is mainly a bill of rightsBill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
. There is no normative hierarchy
Hierarchy
A hierarchy is an arrangement of items in which the items are represented as being "above," "below," or "at the same level as" one another...
indicated by the constitution: all basic rights are principally equal in value and importance. Some rights are absolute, most can be limited by parliamentary or "formal" law, many can be limited by delegation of limiting powers. They include:
- Equality before the lawEquality before the lawEquality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
and prohibition of discrimination (Article 1). This article forbids any discrimination on any grounds but allows affirmative actionAffirmative actionAffirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
. This right can only be limited by law, if there is an objective, reasonable justification for restricting it. In that case, the court will decide if the law is suitable, necessary and in proportion to reach the purpose of the law. Article 3 stipulates that any citizen is eligible to any public function. Nationality itself is based on article 2. - The right to voteSuffrageSuffrage, political franchise, or simply the franchise, distinct from mere voting rights, is the civil right to vote gained through the democratic process...
(Article 4). The right can be limited by formal law; no delegation is allowed. - The right of (written) petitionPetitionA petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer....
(Article 5). This ancient right is absolute and cannot be limited by law. The right of petition has a long tradition in the Netherlands; indeed the Dutch War of Independence started after a petition had been rejected by the HabsburgHabsburgThe House of Habsburg , also found as Hapsburg, and also known as House of Austria is one of the most important royal houses of Europe and is best known for being an origin of all of the formally elected Holy Roman Emperors between 1438 and 1740, as well as rulers of the Austrian Empire and...
authorities, the noble petitioners having been contemptuously treated as "beggars" (GeuzenGeuzenGeuzen was a name assumed by the confederacy of Calvinist Dutch nobles and other malcontents, who from 1566 opposed Spanish rule in the Netherlands. The most successful group of them operated at sea, and so were called Watergeuzen...
). The constitution of 1815 limited the ancient right to written petitions, hoping to curtail the typical disorder created by large groups of delegates. Nevertheless such public mass petitioning has always remained very popular. The right of petition does not imply an accompanying right to be answered, but in practice all public bodies have special commissions to do just that. Often petitions are directed to the King, although the system of ministerial responsibility makes it impossible for him to take action by himself; his secretarial cabinet relegates such petitions to the relevant ministries. - Freedom of religionFreedom of religionFreedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
(Article 6). This right can be limited by formal law; delegation is possible. - Freedom of speechFreedom of speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
(Article 7). This article has only been partially changed in the 1983 revision, as it was linked to very complicated case law. Sub article 1 contains the classic freedom of the pressFreedom of the pressFreedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
. Any censorshipCensorshipthumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
is absolutely forbidden. However, formal law can otherwise limit this freedom, e.g. by making a certain content punishable under penal law. Such limiting powers cannot be delegated to lower administrative bodies such as municipalities; the related right of distribution of printed materials can similarly only be limited by formal law. However, the Supreme Court has nevertheless ruled since 1950 that such bodies may in fact limit the distribution of materials, if such a limitation is not based on the content of those materials and does not imply a complete impediment to any separate means of distribution. They may for instance limit the spreading of pamphlets to certain hours for reasons of public order. Sub article 2 has the same arrangement for television and radio broadcasts. Sub article 3, added in 1983, gives a general right of expression, for those cases where neither printed nor broadcast information is involved; this includes the freedom of speechFreedom of speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
. Again, no censorship is ever allowed, but the right can otherwise be limited by formal law; explicitly mentioned in sub article 3 is the possibility to limit the viewing of movies by minors under the age of sixteen. Although no delegation is possible, lower bodies may limit the exercise of the right for reasons of public order if such limitations are not based on the content of the expressed views. Sub article 4 states that commercial advertising is not protected by article 7. The Dutch constitution does not contain a freedom of gathering of informationFreedom of information legislationFreedom of information legislation comprises laws that guarantee access to data held by the state. They establish a "right-to-know" legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions...
. - Freedom of associationFreedom of associationFreedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
(Article 8). This right can be limited by formal law, but only to safeguard public order. No delegation is allowed. Almost any organization posing any conceivable danger to public order in the broadest sense is forbidden by the still extant Wet vereniging en vergadering ("Law of association and assembly") of 1855, but this law only very rarely leads to an official disbandment of an organization as a legal entity under the civil code. Dutch legal doctrine holds that the freedom of association does not protect against forced membership of organizations, e.g. when such membership is a condition for being active in a certain profession. - Freedom of assemblyFreedom of assemblyFreedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
and freedom of demonstration (Article 9). The revision of 1983 split the old combination of "freedom of assembly and association" and added the former to a new freedom of demonstration. The right can be limited by formal law. Delegation is allowed but only to protect public health, for traffic concerns and to prevent public disorder. - Right to privacyPrivacyPrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
(Article 10). This right, introduced by the revision of 1983, is a general right to be protected whenever the personal integrity is threatened. The right can be limited by formal law. Delegation is allowed, but only in relation to databaseDatabaseA database is an organized collection of data for one or more purposes, usually in digital form. The data are typically organized to model relevant aspects of reality , in a way that supports processes requiring this information...
s. The article imposes a duty on the government to protect against a threat to privacy posed by a possible abuse of databases (subarticle 2); and to regulate the right of persons to be informed about the content of such databases concerning their person and the right to improve possible mistakes in such content (subarticle 3). - Inviolance of the (human) body (Article 11). This right, introduced by the revision of 1983, can be limited by formal law; delegation is allowed. The right is a subspecies of the general right to personal integrity expressed in article 10, so no dichotomy is intended between the two concepts. It protects against violations like forced medical experiments, corporal punishment, torture and mutilation. It does not end with death and thus demands a legal basis for organ donationOrgan donationOrgan donation is the donation of biological tissue or an organ of the human body, from a living or dead person to a living recipient in need of a transplantation. Transplantable organs and tissues are removed in a surgical procedure following a determination, based on the donor's medical and...
. - Prohibition of unlawful entry of the home when no permission of the inhabitant has been obtained (Article 12). Although often presented as a general "right of the home", this article is in fact more based on the principle that the authorities do have a fundamental right to enter homes, but that this must be given a legal basis. The law has to indicate in which case and by which persons entry is legal. Delegation is allowed. Dutch courts tend to give precedence to the practicality of police investigation, so this article has had little protective value.
- Secrecy of communication (Article 13). Subarticle 1 contains the privacy of correspondenceSecrecy of correspondenceThe secrecy of correspondence ) or literally translated as secrecy of letters, is a fundamental legal principle enshrined in the constitutions of several European countries. It guarantees that the content of sealed letters is never revealed and letters in transit are not opened by government...
. This can only be violated on order of a judge and only in those cases indicated by formal law. No delegation is allowed. The judge in question is rarely a court but in practice the investigative judge (rechter-commissaris). The Dutch penal code offers a further protection of this right as several types of violating it are punishable as crimes. Subarticle 2 contains the privacy of communication by telephone and telegraph. This right can be limited by law; such law has to indicate which persons have the authority to allow a violation. No delegation is allowed. For most cases again the investigative judge has the competent authority. Since the nineties there is doctrinal consensus that the right extends to cell phone communication, but earlier this was contended. In practice the Dutch police taps any telephone communication at will, irrespective of authorisation and with full cooperation of the telephone companies. Although this situation is embarrassing from a constitutional point of view, authorities and courts are hesitant to act against it, for reasons of practicality. However it has often been ruled that information thus gained cannot be admissible as evidence in court. - Prohibition of unlawful expropriationNationalizationNationalisation, also spelled nationalization, is the process of taking an industry or assets into government ownership by a national government or state. Nationalization usually refers to private assets, but may also mean assets owned by lower levels of government, such as municipalities, being...
(Article 14). The Dutch constitution contains no general right to propertyRight to propertyThe right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...
. This has been defended by successive governments with the argument that such right is so fundamental to Dutch society that it is redundant to explicitly mention it. Expropriation is only allowed to serve the public interest and on the condition that prior formal assurance is given of (full) indemnity, meaning that some exact sum has to be determined. It has to be based on law; delegation is allowed, but only as regards the indemnity determination procedure, not the expropriation as such. Subarticle 2 states however that in an emergency situation the prior assurance has not to be given — in those cases the amount of compensation will be determined later. Subarticle 3 extends this arrangement to cases of destruction, partial damage, total loss and limitations of the right to property, caused by the competent authority to serve the public interest. Normal cases of damage are ruled by the civil code. - Right to liberty (Article 15). This right can be limited by formal law. Delegation is allowed since the revision of 1983. Subarticle 2 safeguards access to the competent judge for anyone detained; this judge has the power to order the release of the detainee, like in the common law habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
doctrine. In fact all relevant laws order the authorities to obtain approval from the judge within a certain time limit, but deny to the detainee access by his own initiative until that limit has been reached. Subarticle 3 contains the penal law obligation of the authorities to ensure that a trial takes place and is finished within a reasonable period of time. This right cannot be limited by law. In fact the Dutch penal code contains loopholes making it possible to delay trials indefinitely. Subarticle 4 states that all basic rights of a detainee can be limited in the interest of his detention. - Nulla poena sine praevia legeNulla poena sine legeNulla poena sine lege is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted as just and upheld by the penal codes of constitutional states, including virtually all modern democracies...
(Article 16). This fundamental principle of legality, already present in the penal code and introduced to the constitution in the revision of 1983, is absolute and cannot be limited by law. However at the same time the additional article IX was added to the constitution making an exception for war crimes and crimes against humanity. - Ius de non evocandoJus de non evocandoThe Jus de non evocando is an ancient feudal right, stating that no one can be kept from the competent court. It derives from a medieval principle that subjects of the Crown were entitled to ius de non evocando, the right to enjoy the jurisdiction and protection of the Crown to which they were loyal...
(Article 17). This ancient right states that no one can against his will be kept from the competent court. It cannot be limited by law — but law decides which court is competent.
In addition to these classic rights the revision of 1983 introduced a number of social rights. The distinction between the two categories is not strictly based on any legal doctrine and in fact the social right articles contain many freedom rights. The social rights are:
- Right to counselRight to counselRight to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
(Article 18). Subarticle 1 contains a freedom right: anyone has the right to be legally assisted or represented in court or during administrative appeal. This right is absolute and cannot be limited by law. Nevertheless the law may impose qualification requirements on legal representatives so that e.g. only attorneys are allowed to represent. Subarticle 2 contains the right to legal aid for the destitute. The right can be limited by formal law; delegation is allowed. However doctrine holds that the State has an absolute duty to provide a minimum of legal aid. - Labour rights (Article 19). Subarticle 1 imposes a duty on the government to ensure sufficient employment. This does not imply a right to be employed for the individual. Subarticle 2 demands that laws are made regarding the legal position of workers, including the protection of workers against accidentsOccupational safety and healthOccupational safety and health is a cross-disciplinary area concerned with protecting the safety, health and welfare of people engaged in work or employment. The goal of all occupational safety and health programs is to foster a safe work environment...
and workers' participation. Subarticle 3 contains a general freedom right to labour. This right can be limited by formal law; delegation is allowed. The right is limited to those of Dutch nationality, so in principle foreign nationals can be denied access to the labour market. The law in fact denies such access to illegal immigrants and asylum seekers. - Welfare of the people (Article 20). Subarticle 1 imposes a duty upon the government to ensure the subsistence of the population and an adequate distribution of wealth. Subarticle 2 demands that laws are made concerning the entitlements to social welfare. Delegation is allowed. Subarticle 3 contains a right to welfare for the destitute. The right can be limited by formal law; delegation is allowed. The government has a duty to make a law implementing the right. The right is limited to those Dutch nationals living in the Netherlands.
- Environmental protectionEnvironmental protectionEnvironmental protection is a practice of protecting the environment, on individual, organizational or governmental level, for the benefit of the natural environment and humans. Due to the pressures of population and our technology the biophysical environment is being degraded, sometimes permanently...
(Article 21) This article imposes a duty on government to ensure the habitability of the land — including the general infrastructure and especially the vital sea-defences — and the protection and improvement of the environment. Doctrinal consensus holds that "improvement" implies that government is not allowed to make environmental laws much less strict. - Health, housing, cultureCultureCulture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
and recreationRecreationRecreation is an activity of leisure, leisure being discretionary time. The "need to do something for recreation" is an essential element of human biology and psychology. Recreational activities are often done for enjoyment, amusement, or pleasure and are considered to be "fun"...
(Article 22). This is a wastebasket article combining rights that were too important to remain unmentioned, but too unimportant to warrant a separate article status. Subarticle 1 imposes a duty upon government to improve public health. Subarticle 2 does the same for living conditions and subarticle 3 for "cultural self-realisation" and recreational activities.
§23: Freedom of educationFreedom of educationFreedom of education is a constitutional concept that has been included in the European Convention on Human Rights, Protocol 1, Article 2 and several national constitutions, e.g. the , the Belgian constitution and the Dutch constitution...
Freedom of education (Article 23), occasionally also termed Right to education
Right to education
The right to education is a universal entitlement to education, a right that is recognized as a human right. According to the International Covenant on Economic, Social and Cultural Rights the right to education includes the right to free, compulsory primary education for all, an obligation to...
, is an extension of Freedom of Religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
. The Dutch education system is characterized by ideological divisions. The constitutions of 1814 and 1815 expressed the principle of neutral state education; even in private schools giving a full curriculum religious education was forbidden. Parents wanting their children to be given some formal religious instruction had to send them to special bible classes in Sunday school
Sunday school
Sunday school is the generic name for many different types of religious education pursued on Sundays by various denominations.-England:The first Sunday school may have been opened in 1751 in St. Mary's Church, Nottingham. Another early start was made by Hannah Ball, a native of High Wycombe in...
s. In the revision of 1848 the freedom of education was first expressed. However this was a negative right: parents were at liberty to let their children be educated in denominational schools, but had to pay for this themselves, whereas state schools offered free education. As the frame of government grew ever more democratic, this arrangement proved untenable in the gradually becoming more "pillarised
Pillarisation
Pillarisation is a term used to describe the politico-denominational segregation of Dutch and Belgian society. These societies were "vertically" divided into several segments or "pillars" according to different religions or ideologies.These pillars all had their own social institutions: their own...
" Dutch society. The school system became the central battleground of political change: the school struggle
School struggle
The School Struggle or Schoolstrijd is a historical conflict in the Netherlands between 1848 and 1917 over the equalization of public financing for religious schools...
between elitist neutral liberals
Liberalism in the Netherlands
This article gives an overview of liberalism in the Netherlands. It is limited to liberal parties with substantial support, mainly proved by having had a representation in parliament.-Background:...
and conservatives on the one and mass-oriented confessional
Christian democracy in the Netherlands
This article gives an overview of christian democracy in the Netherlands, which is also called confessional politics, including political Catholicism and Protestantism. It is limited to Christian democratic parties with substantial support, mainly proved by having had a representation in parliament...
protestants and Catholics and eventually socialists
Socialism in the Netherlands
This article gives an overview of socialism in the Netherlands, including communism and social democracy. It is limited to socialist, communist and social-democratic parties with substantial support, mainly proved by having had a representation in parliament...
on the other hand. In 1889 a system of school funding for denominational schools was introduced; in the revision of 1917 this was formalised by a guarantee of full constitutional equality between public and special schools
Special school (Netherlands)
A special school , in the education system of the Netherlands, is a separate category from a public or private school. It is not to be confused with "speciaal onderwijs", which refers to schools specialized to deal with severe learning disabilities.It is administered by an independent board, as...
: the Pacification. Even in 1983 this issue remained so sensitive that government and parliament failed to reach consensus over a changed redaction. As a result Article 23 remained unchanged. It is therefore outside of the uniform terminology and systematics of the renewed constitution: some elements of Article 23 are absolute rights, others can be limited by law, for some this limitation can be delegated to lower administrative bodies — but it is impossible to understand from the article itself what is the situation for each element; this can only be learned from case law and doctrine. Absolute is the right to education itself (subarticle 2), the equality between public and special schools and the duty of the State to finance them all. The right to education is primarily a right to give education of any kind; the right to be educated is seen as derived; parents are free in the choice of schools. The right implies the right to found schools, the right to freely choose their underlying religion or philosophy of life and the right to organise them in accordance with such religion or philosophy. So not all "special" schools are denominational; some are e.g. anthroposophic
Anthroposophy
Anthroposophy, a philosophy founded by Rudolf Steiner, postulates the existence of an objective, intellectually comprehensible spiritual world accessible to direct experience through inner development...
. All have to be funded by government and with the strictest equality (subarticle 7); until recently law stated that this equality was nominal, meaning that if a municipality spent a certain sum per student in public schools, exactly the same sum had to be spent in its special schools. The right can be limited by formal law in that minimal quality requirements can be imposed (subarticle 5), both as regards the level of education and the standard of organization. Some of this power is in fact delegated to lower bodies; one of the breaking-points in 1983 was the refusal of parliament to express this in the constitution. The duty of State to (equally) fund is limited to free compulsory education
Compulsory education
Compulsory education refers to a period of education that is required of all persons.-Antiquity to Medieval Era:Although Plato's The Republic is credited with having popularized the concept of compulsory education in Western intellectual thought, every parent in Judea since Moses's Covenant with...
(presently until the age of sixteen); Subarticle 7 however states that law will specify the conditions under which non-compulsory education will be funded; unsurprisingly there is in fact in this field also strict equality. Subarticle 1 expresses the social right that education in general is an ongoing concern for the government; Subarticle 4 states that municipalities have the duty to provide for sufficient primary schools.
For an English-language history of the political battle that led to this article, see:
Chapter 2: Government
Dutch constitutional doctrine holds that the King and ministers together form the government and this indivisibly, so that the King in any of his public acts always acting under ministerial responsibility is not the Head of GovernmentHead of government
Head of government is the chief officer of the executive branch of a government, often presiding over a cabinet. In a parliamentary system, the head of government is often styled prime minister, chief minister, premier, etc...
, but embodies it fully. The King is however head of state
Head of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
and so a special paragraph is dedicated to the King in this quality.
§1: King
Article 24 stipulates that there is kingship and that this kingship is held by William I of the Netherlands
William I of the Netherlands
William I Frederick, born Willem Frederik Prins van Oranje-Nassau , was a Prince of Orange and the first King of the Netherlands and Grand Duke of Luxembourg....
and his lawful successors. Articles 25 and 26 regulate the line of succession to the Dutch throne
Line of succession to the Dutch Throne
The 1814 constitution stated that the oldest son of the monarch would succeed him , followed by the monarch's brother or his son. Only when there would be a complete lack of males in his near family, would the oldest daughter of the monarch succeed him...
; since 1985 female successors have equal rights to the throne. Further articles regulate abdication
Abdication
Abdication occurs when a monarch, such as a king or emperor, renounces his office.-Terminology:The word abdication comes derives from the Latin abdicatio. meaning to disown or renounce...
(Article 27); parliamentary approval of royal marriage on penalty of loss of the right to the throne (Art. 28); the exclusion of unfit possible heirs (Art. 29); appointment of a successor if heirs are absent (Art. 30 and 31); the oath and inauguration
Inauguration
An inauguration is a formal ceremony to mark the beginning of a leader's term of office. An example is the ceremony in which the President of the United States officially takes the oath of office....
in the capital of the Netherlands
Capital of the Netherlands
The capital of the Netherlands is Amsterdam, even though the States-General and the government have been both situated in The Hague since 1588. The current position of Amsterdam as capital city of the Kingdom of the Netherlands is governed by the constitution of 24 August 1815 and its...
, Amsterdam
Amsterdam
Amsterdam is the largest city and the capital of the Netherlands. The current position of Amsterdam as capital city of the Kingdom of the Netherlands is governed by the constitution of August 24, 1815 and its successors. Amsterdam has a population of 783,364 within city limits, an urban population...
(Art. 32); the age of royal majority at eighteen (Art. 33); guardianship
Regent
A regent, from the Latin regens "one who reigns", is a person selected to act as head of state because the ruler is a minor, not present, or debilitated. Currently there are only two ruling Regencies in the world, sovereign Liechtenstein and the Malaysian constitutive state of Terengganu...
over a minor King (Art. 34); declaration by Parliament of the King's inability (Art. 35); temporary relinquishment of the exercise of royal authority (Art. 36); regency
Regent
A regent, from the Latin regens "one who reigns", is a person selected to act as head of state because the ruler is a minor, not present, or debilitated. Currently there are only two ruling Regencies in the world, sovereign Liechtenstein and the Malaysian constitutive state of Terengganu...
(Art. 37 and 38); the membership of the Royal House
Royal House
A royal house or royal dynasty consists of at least one, but usually more monarchs who are related to one another, as well as their non-reigning descendants and spouses. Monarchs of the same realm who are not related to one another are usually deemed to belong to different houses, and each house is...
(in practice mainly consisting of members of the House of Orange) (Art. 39); its payment (Art. 40) and the organisation of the royal household
Royal Household
A Royal Household in ancient and medieval monarchies formed the basis for the general government of the country as well as providing for the needs of the sovereign and his relations....
by the King (Art. 41).
§2: King and ministers
Article 42 states the main principles of Dutch government: that it is formed by King and ministers (Subarticle 1) and that "the King is inviolate; the ministers are responsible" (Subarticle 2). Before 1848 the inviolacy of the King was interpreted as a judicial one: he could never be tried in court for whatever reason. This is still so, but ministerial responsibility
Ministerial responsibility
Ministerial responsibility or individual ministerial responsibility is a constitutional convention in governments using the Westminster System that a cabinet minister bears the ultimate responsibility for the actions of their ministry or department...
implies there is since the revision of 1848 primarily a political inviolacy. This means that the King cannot act in a public capacity without ministerial approval: externally the governmental policy is always represented by the responsible minister who, should he feel that the King's personal influence in it threatens to become too predominant, has to resign if he cannot prevent it; what happens internally between King and ministers is the Crown Secret, never to be divulged. What little of it nevertheless has come to the public attention, shows that the common conception that the kingship since the reign of William III of the Netherlands
William III of the Netherlands
William III was from 1849 King of the Netherlands and Grand Duke of Luxembourg until his death and the Duke of Limburg until the abolition of the Duchy in 1866.-Early life:William was born in Brussels as son of William II of the Netherlands and...
has in fact been almost fully ceremonial, is not supported by the facts. Often it is assumed that there is a "derived ministerial responsibility" for all members of the Royal House.
The Prime Minister
Prime Minister of the Netherlands
The Prime Minister of the Netherlands is the chairman of the Council of Ministers of the Netherlands. He is the de facto head of government of the Netherlands and coordinates the policy of the government...
and the ministers are appointed and dismissed by Royal Decree (Article 43). Such decrees are also signed by the Prime Minister himself, who signs his own appointment and those of the others (Article 48). Like the King the Dutch Prime Minister is also not the Head of Government
Head of government
Head of government is the chief officer of the executive branch of a government, often presiding over a cabinet. In a parliamentary system, the head of government is often styled prime minister, chief minister, premier, etc...
— the Netherlands have none — but he is normally treated that way abroad. Royal decree also institutes the ministries
Dutch ministries
There are eleven ministries of the Netherlands, all with their own minister, there are also several ministers without portfolio and about as many state secretaries...
(Article 44), which have tended to be very variable in number and scope, and non-departmental ministers
Minister without Portfolio
A minister without portfolio is either a government minister with no specific responsibilities or a minister that does not head a particular ministry...
(Subarticle 2), who officially have no ministry but whom in fact is assigned the necessary personnel and who sign and are responsible for a partial budget. The ministers together form the Council of Ministers (Article 45), presided by the Prime Minister (Subarticle 2), which assembles (in fact weekly) to promote the unity of the general governmental policy (Subarticle 3). Though existing since 1823, this council has only been mentioned since the revision of 1983; its constitutional powers as such are almost nil. The proceedings are secret for a period of fifty years. Outwardly the council acts as if there were complete agreement between all ministers: the so-called "homogeneity". By Royal Decree are appointed secretaries of state (Article 46); these are subordinate to a certain minister who is fully responsible for their acts (Subarticle 2). All laws and Royal Decrees have to be countersign
Countersign (legal)
Countersigning means writing a second signature onto a document. For example, a contract or other official document signed by the representative of a company may be countersigned by his supervisor to verify the authority of the representative...
ed by the Prime Minister and the responsible minister(s) or secretaries of state (Article 47). The countersign has been mandatory since the revision of 1840. Since 1983 such laws and decrees also have to be affirmed by a signed affirmation; it is usually assumed these acts coincide. All ministers and secretaries of state have to swear an oath of purification (declaring to not having bribed anyone to obtain their office, nor having been bribed to commit certain acts when in office) and swear allegiance to the Constitution (Article 49).
The individual ministers do not have a (general) executive power, other than that which is attributed to them by special law.
§1: Organisation and composition
Article 50 states that there are States-General
States-General of the Netherlands
The States-General of the Netherlands is the bicameral legislature of the Netherlands, consisting of the Senate and the House of Representatives. The parliament meets in at the Binnenhof in The Hague. The archaic Dutch word "staten" originally related to the feudal classes in which medieval...
and that these represent the whole of the people of the Netherlands. Thus a clear distinction is made to the situation under the confederal Dutch Republic
Dutch Republic
The Dutch Republic — officially known as the Republic of the Seven United Netherlands , the Republic of the United Netherlands, or the Republic of the Seven United Provinces — was a republic in Europe existing from 1581 to 1795, preceding the Batavian Republic and ultimately...
when the States-General represented the provinces
Provinces of the Netherlands
A Dutch province represents the administrative layer in between the national government and the local municipalities, having the responsibility for matters of subnational or regional importance. The government of each province consists of three major parts: the Provinciale Staten which is the...
. Doctrine holds that the article also entails that political parties have to give priority to the public interest, as opposed to the particular interests of their constituents. Article 51 specifies that the States-General consist of a House of Representatives of the Netherlands (lower house
Lower house
A lower house is one of two chambers of a bicameral legislature, the other chamber being the upper house.Despite its official position "below" the upper house, in many legislatures worldwide the lower house has come to wield more power...
) of 150 members and a Senate (upper house
Upper house
An upper house, often called a senate, is one of two chambers of a bicameral legislature, the other chamber being the lower house; a legislature composed of only one house is described as unicameral.- Possible specific characteristics :...
) of 75 members — the constitution deliberately mentions the House of Representatives first to emphasize its political primate. Subarticle 4 mentions that both Houses can gather in an indivisible United Assembly of 225 members, a joint session necessary to perform some acts, such as the appointment of a new King in absence of royal heirs. When in United Assembly the President of the Senate is President of the States-General (Article 62); the House of Representatives has tried to change this in the revision of 1983 but has twice been defeated by the Senate defending its privilege. The Houses sit for four years (Article 52). They are elected on basis of proportional representation
Proportional representation
Proportional representation is a concept in voting systems used to elect an assembly or council. PR means that the number of seats won by a party or group of candidates is proportionate to the number of votes received. For example, under a PR voting system if 30% of voters support a particular...
(Article 53) and by a secret ballot (Subarticle 2). The House of Representatives is elected by all Dutch citizens over the age of eighteen (Article 54), except those who have been disqualified by a court sentence as part of their punishment for a crime or those who have been declared incapable by court because of insanity (Subarticle 2). Formal law can limit the right to vote to resident nationals only but presently does not. The Senate is elected by the States Provincial (Article 55).
To be eligible to be elected it is necessary to be of Dutch nationality, to be over eighteen in age and not to have been excluded from the right to vote (Article 56); there are also certain incompatibilities of function (Article 57), the most important of which is that a minister not belonging to a demissionary cabinet cannot be a member of the States-General, a stark contrast with the situation in United Kingdom
Politics of the United Kingdom
The politics of the United Kingdom takes place within the framework of a constitutional monarchy, in which the Monarch is the head of state and the Prime Minister of the United Kingdom is the head of government...
or Germany
Politics of Germany
The Federal Republic of Germany is a federal parliamentary republic, based on representative democracy. The Chancellor is the head of government, while the President of Germany is the head of state, which is a ceremonial role but with substantial reserve powers.Executive power is vested in the...
. This principle underlies the political dualism of Dutch politics. The Houses investigate the Letters of Credence
Letter of Credence
A letter of credence is a formal letter usually sent by one head of state to another that formally grants diplomatic accreditation to a named individual to be their ambassador in the country of the head of state receiving the letter...
of new members, in this case a written affirmation by the central voting office that they have indeed obtained the necessary number of votes. After the investigation new members swear four oaths: the oath of purification, the oath of allegiance to the Constitution and the oath of loyal discharge of their office are demanded by Article 60; the oath of loyalty to King and Statute is demanded by Article 47 of the Statute of the Kingdom, the higher Constitution of the Realm. All other issues pertaining the elections are regulated by formal law; delegation is possible (Article 59).
Each House appoints its own President from its members (Article 61) and a clerk, not from its own members; no officials of the States-General may be member of the States (Subarticle 2). Law regulates the remuneration of the members; delegation is possible; such law can only be approved by a two thirds majority (Article 63).
Article 64 states that government can dissolve each House by Royal Decree. Within three months elections have to be held (Subarticle 2). The duration of a new House of Representatives after dissolution is determined by law and not to exceed five years (Subarticle 4). The dissolution only takes effect when the new House meets, to avoid a period without representation. Dissolution of Parliament was in the 19th century an instrument for government to decide a conflict with the House of Representatives by submitting the issue to the voter. Unwritten law developed between 1866 and 1868 that this should not be done more than once over the same issue. The last instance occurred in 1894. In the 20th century such "conflict resolution" was replaced by "crisis resolution" whenever a political coalition fell apart and could not be reconciled; the government then resigns and instead of trying to find a new coalition majority, decides on holding new elections, normally in accordance with the wishes of parliament itself. Earlier typically an "interim cabinet" was formed to arrange for the elections, but this hasn't happened since 1982.
§2: Procedures
Article 65 states that the parliamentary year is opened on the third Tuesday of September (Prinsjesdag
Prinsjesdag
Prinsjesdag is the day on which the reigning monarch of the Netherlands addresses a joint session of the Dutch Senate and House of Representatives in the Ridderzaal or Hall of Knights in The Hague. The Speech from the Throne sets out the main features of government policy for the coming...
) by the King holding the Speech from the Throne
Speech from the Throne
A speech from the throne is an event in certain monarchies in which the reigning sovereign reads a prepared speech to a complete session of parliament, outlining the government's agenda for the coming session...
. The same day the minister of finance
Ministry of Finance (Netherlands)
The Ministry of Finance is the Dutch ministry of finance: it is occupied with the national budget, taxation and financial economic policy, including supervision of financial markets...
presents the yearly national budget. The sessions of the States-General are public (Article 66), but the session will be secret (In camera
In camera
In camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
) when the House in question so decides (Subarticle 3) which can be proposed by a tenth of the quorum
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
or the President, on which proposal the doors are closed immediately for the vote (Subarticle 2). Normally there is a quorum of a half to start a session or to take any decision (Article 67). Decisions are taken by majority
Majority
A majority is a subset of a group consisting of more than half of its members. This can be compared to a plurality, which is a subset larger than any other subset; i.e. a plurality is not necessarily a majority as the largest subset may consist of less than half the group's population...
(more than half of the votes, Subarticle 2) and without mandate (Subarticle 3) — a reference to the situation under the Republic when each delegate had to vote on instruction from the nobles or city councils he represented. On demand of a single member the vote must be oral and by roll call
Roll call
Roll call is the calling of the names of people from a list to determine the presence or absence of the listed people . The term applies to the calling itself, to the time moment of this procedure, and to a military signal that announces it Roll call is the calling of the names of people from a...
; no member may abstain.
The States-General have an absolute right to information from the government in writing or in person, only constitutionally limited by State interests, such as the national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
(Article 68). Doctrine holds that there can also be "natural impediments" justifying that a minister fails in answering questions, such as the circumstance that he simply doesn't know the answer, that he has already answered or that he is about to answer much more completely by issuing a written report on the question. Another doctrinal limitation is the ministerial responsibility: a minister is not obliged to give information about a subject for which not he is responsible but his colleague. Government members have access to the sessions and can freely partake in the discussions (Article 69); they can also be invited to do so by the Houses (Subarticle 2). Such an invitation is in fact an order: government members are not at liberty to refuse. They do however have the right to invite any expert to assist them in the discussions (Subarticle 3). All persons partaking in the deliberations of parliament or in the parliamentary commission meetings have legal immunity
Parliamentary immunity
Parliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself...
regarding any communication they made, either in speech or in writing (Article 71). Otherwise the members have no parliamentary immunity
Parliamentary immunity
Parliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself...
.
The States-General have the right of inquiry (Article 70). They can by majority vote empower a commission that in public or secret hearings can investigate any subject. Any person in the Realm is obliged to appear and answer their questions; it is a crime not to obey. This right can be limited by formal law; delegation is possible. Sixteen such inquiries have been held since 1848, one of them, about the events in the Second World War, lasting from 1947 till 1956.
The Houses each determine their own Rules of Procedure (Article 72). As the legislative is in the Netherlands formed by parliament and government in cooperation, these Rules of Procedure are not formal laws but have a sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
"legal" status.
Chapter 4: Council of State, Court of Audit, National Ombudsman and Permanent Advisory Colleges
Chapter 4 covers certain other High Councils of StateHigh Council of State (Netherlands)
A High Council of State is a council of which the independence is guaranteed in the Constitution of the Netherlands. There are five High Councils of State: the Senate and House of Representatives, the Dutch Council of State, the Court of Audit and the National Ombudsman....
apart from parliament. The most important of these is the Council of State
Council of State
The Council of State is a unique governmental body in a country or subdivision thereoff, though its nature may range from the formal name for the cabinet to a non-executive advisory body surrounding a head of state. It is sometimes regarded as the equivalent of a privy council.-Modern:*Belgian...
(Raad van State). Any proposal of law in the broadest sense and any proposed treaty is in principle first submitted to the Council of State for legal comment; this can be limited by formal law, which however only does so for trivial cases (Article 73). Though officially such comment is merely an advice, it is very rare for law proposals to remain unchanged if the judgment of the Council is negative. The Council is seen as the guardian of legislative quality; no minister can ignore its opinion without dire effects on his own reputation. Thus the Council in fact codetermines the legislative process. The Council also acts as the highest court for administrative appeal
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
(Subarticle 2 and 3); it thus has the final say on the way the country is actually ruled, though this is limited by the fact such appeals can only be made on formal or procedural grounds. The large influence of the Council is not always appreciated by external and internal observers. If the King is unable to exert the royal authority and there is as yet no regent, the Council exerts the royal authority (Article 38). The Council is officially presided by the King (Article 74); in view of the ministerial responsibility
Ministerial responsibility
Ministerial responsibility or individual ministerial responsibility is a constitutional convention in governments using the Westminster System that a cabinet minister bears the ultimate responsibility for the actions of their ministry or department...
he in fact only does so on special occasions: normally the current chairman is the vice-president of the Council, some times by journalists called the "Viceroy of the Netherlands". The probable heir becomes a member of the Council when he reaches the age of eighteen and often does attend the meetings. Law can give other members of the Royal House the right to attend; it in fact determines that they nor the heir have voting powers. The members of the Council, the Staatsraden, are appointed by Royal Decree for life (Subarticle 2); they can be dismissed on demand by Decree, or in cases determined by law by the Council itself, and law can determine an age limit (Subarticles 3 and 4). The competence, organisation and composition of the Council are regulated by law; delegation is possible (Article 75). This competence may exceed the functions indicated in Article 73; in this case no delegation is allowed (Subarticle 2). The number of Staatsraden is determined by law at a maximum of 29 ordinary members and 50 extraordinary members.
The second is the Court of Audit (Algemene Rekenkamer). Its task is to perform financial audits (Article 76). The members are appointed for life by Royal Decree from a shortlist of three, proposed by the House of Representatives (Article 77). They can be dismissed on demand by Decree or when reaching an age determined by law (Subarticle 2); or dismissed by the Supreme Court in certain other cases determined by law (Subarticle 3). Law determines the organisation, composition and competence of the Court of Audit(Article 78); delegation is possible; this may exceed the functions indicated by Article 76; in this case no delegation is allowed (Subarticle 2). In fact the Court of Auditnot only performs financial audits but also "value for money" efficiency analyses; it also reports on the effectiveness of all governmental policy via performance audit
Performance audit
Performance audit refers to an examination of a program, function, operation or the management systems and procedures of a governmental or non-profit entity to assess whether the entity is achieving economy, efficiency and effectiveness in the employment of available resources...
s. Dutch legal doctrine believes in a clear distinction between efficiency and effectiveness reports and this is reflected in two separate types of investigation carried out. The budget as such is alway officially approved, be it with "comments" when irregularities have been discovered; these then have to be remedied by special law. The effectiveness reports, carried out in great detail, in full independence and without the slightest regard for political sensitivities, have given the Court of Audita large political influence, even more so than the British National Audit Office
National Audit Office (United Kingdom)
The National Audit Office is an independent Parliamentary body in the United Kingdom which is responsible for auditing central government departments, government agencies and non-departmental public bodies...
.
The third is the National Ombudsman
National Ombudsman
The National Ombudsman is a Dutch political office. The National Ombudsman deals with citizens' complaints against improper conduct of government and is appointed by cabinet on the advice of the House of Representatives .The National Ombudsman is a High Council of State....
, a relatively new function; he may investigate by his own initiative or on request of anyone, the actions of State bodies or other governmental bodies indicated by law; this indication can be delegated (Article 78a). The ombudsman
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
and his substitute are appointed by the House of Representatives for a certain period of time, to be determined by law. They are in any case dismissed by the House of Representatives on demand and when reaching a certain age (Subarticle 2). Law determines the competence of the ombudsman and the way he proceeds; delegation is allowed (Subarticle 3). His competence may by law be determined to exceed that given in Subarticle 1; delegation is allowed (Subarticle 4) — in contrast with the arrangement given for the Council of State and the Court of Audit.
The constitution has a general Article 79 founding the establishment of other advisory bodies, the "permanent advisory colleges". The law regulates the organisation, composition and competence of these bodies (Subarticle 2); other competences than mere advisory ones may be attributed by law (Subarticle 3); in both cases delegation is allowed. There used to be a great many of these advisory bodies; after 1996 their number was brought back to a few to economise. The advice of all bodies indicated in Chapter 4 is in principle public; the law regulates the way it is published; delegation is allowed (Article 80); it is submitted to the States-General (subarticle 2).
§1: Laws and other prescripts
The Legislative is formed by Government (i.e. King and ministers) and the States-General in cooperation (Article 81), although the term "legislative" is not actually used: the article simply states that government and the States-General together make laws. This means that the Dutch concept of "formal law" cannot simply be equated to "Act of Parliament", as government and parliament act in unison in creating laws. In the Dutch constitutional system there is no decisive referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
, although sometimes consultative referenda are held, like the one in 2005 in which the people advised to reject the European Constitution
Treaty establishing a Constitution for Europe
The Treaty establishing a Constitution for Europe , , was an unratified international treaty intended to create a consolidated constitution for the European Union...
; the Dutch people is thus not a direct lawgiver.
Bills are presented by the King or by the House of Representatives, which thus has the right of initiative (Article 82). Some bills have to be presented by the States-General in United Assembly (subarticle 2). The Senate cannot propose law. The ministers can but in fact act through the King who sends a Royal Missive (Article 83), containing the proposal, which is only signed by himself, thus without countersign. The House of Representatives has the right of amendment
Amend (motion)
-Explanation and Use:-Main Motions:Any main motion and any motion to amend may be amended. However, a motion to amend a motion to amend may not be amended, due to the overly complex parliamentary situation that would frequently result.-Secondary Motions:...
; government too may amend
Amend (motion)
-Explanation and Use:-Main Motions:Any main motion and any motion to amend may be amended. However, a motion to amend a motion to amend may not be amended, due to the overly complex parliamentary situation that would frequently result.-Secondary Motions:...
(Article 84). The Senate only can pass or reject laws in full (Article 85), defended by the responsible minister or by members of the House of Representatives having taken the initiative to propose the law; however, in practice it can send the proposal back asking for a novelle to be passed by the House of Representatives, in fact an amendment of law. Bills may be withdrawn by the proposer until passed (Article 86), but only by a majority of the House of Representatives if the bill has been presented by some members of the House of Representatives and has been passed by the House of Representatives. Bills become valid law once they have been passed by Parliament and have been affirmed by the King (Article 87). It is generally assumed that this also fulfills the demand of signature by Article 47. The affirmation needs sign and ministerial countersign but also the older Royal Order has to be signed and countersigned, ordering to publish the law in a special publication, the Staatsblad van het Koninkrijk der Nederlanden (Bulletin of Acts, Orders and Decrees of the Kingdom of the Netherlands, also called Bulletin of Acts and Decrees). Only after such publication the law has an external binding force (Article 88).
In the Dutch constitutional system there is not only formal law; also other general governmental regulations are recognised, binding the citizen; the overarching concept is called "material law". These other regulations are the "other prescripts" mentioned in the heading of §1. Only the most important subcategory of these is explicitly mentioned in the constitution, in Article 89: the Algemene maatregelen van bestuur, "General Administrative Orders". To avoid doctrinal strive over what orders exactly are covered by this concept, a consensus has developed that a strict formal definition can be applied: all general orders made by Royal Decree (Subarticle 1) that have been submitted to the Council of Ministers and to the Council of State and have been published by the Staatsblad, are General Administrative Orders. Since the Second World War a doctrinal consensus has gradually developed that all general Royal Decrees have to conform to these conditions to be valid and that earlier practices to issue general Royal Decrees without meeting these three formalities — such Decrees, general or otherwise, are called "minor Royal Decrees" — can no longer result in regulations with binding force towards the citizen. Since 1889 the constitution determines that all prescripts with a penal character have to be based on formal law and that this law imposes the penalty (Subarticles 2 and 4). This includes the Royal Decrees and thus the General Administrative Orders. A doctrinal consensus has developed however that all General Administrative Orders, not just those with penal content, have to be based on formal law to be valid, with the competence to regulate delegated by such law.
§2: Other prescripts
The second paragraph of Chapter 5 contains several articles of disparate administrative content; but they are not the same as the "other prescripts" of §1; the redaction of the headings is generally seen as confusing and infelicitous on this point. Most articles in §2 are combined in coherent groups.
The first of these groups consists of articles pertaining to international law and treaties. Article 90 states that it is the duty of government to promote the international rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. The Netherlands is home to several International Courts
International court
International courts are formed by treaties between nations, or under the authority of an international organization such as the United Nations — this includes ad hoc tribunals and permanent institutions, but excludes any courts arising purely under national authority.Early examples of...
. Doctrine holds that this article also attributes the general right to conclude treaties. Article 91 states that the Kingdom shall not be bound by treaty without prior approval of the States-General, except for those cases where law determines no such approval is necessary. Such approval may be tacit (Subarticle 2). Despite this, if not either a reservation of approval is made on conclusion of the treaty, or the treaty contains a ratification clause, treaties are according to international law binding upon conclusion. The article must thus be seen as imposing a duty upon government to arrange for such reservation or clause. Subarticle 3 determines that if a treaty conflicts with the Constitution, it has to be approved by a two thirds majority of both Houses. Whether such conflict exists is decided by the States-General; article 6 of the lower Rijkswet goedkeuring en bekendmaking verdragen determines that this decision has again to be made by special formal law. A special implementation by law of the 1992 Treaty of Maastricht determines that certain European Community decisions having force of treaty have to be approved by Parliament prior to even the conclusion itself. By treaty legislative, administrative and judicial powers may be conferred on organisations established under international law (Article 92). This has been done on many occasions, e.g. on the Benelux
Benelux
The Benelux is an economic union in Western Europe comprising three neighbouring countries, Belgium, the Netherlands, and Luxembourg. These countries are located in northwestern Europe between France and Germany...
, the European Community, the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
, the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
and NATO.
According to present doctrine, that of "treaty monism
Monism and dualism in international law
The terms monism and dualism are used to describe two different theories of the relationship between international law and national law.- Monism :Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has...
", treaties are in the Dutch legal system in principle self-executing; no special transformation is needed by implementing special law, as in countries with a "dualistic" system (such as the United Kingdom). However, when the present articles covering this subject were last revisioned, in 1953, doctrine was divided and some defended a more dualistic position, that of "limited monism". They demanded the consititution to be neutral on this issue and this has led to some infelicitous results. Government originally intended that Article 93, stating that treaties of a generally binding nature would only have such binding force after they had been published, to be simply a safeguard, protecting the citizen against duties imposed on him by such treaty. However, the "limited monists" held that only such published treaties are self-executing and that thus Article 93 is the basis for all treaty monism; to appease them government stated that the article should in any case be read as covering also the treaties conferring rights on the citizen and imposing duties upon government. The unintendeed result was that government might thus in principle withhold rights to the citizen by not publishing the treaty. Article 94 determines that legal prescripts are inapplicable if they conflict with treaties of a generally binding nature. This means that laws can be tested against treaty norms and obligations. Dutch courts have however been very reluctant to do so, limiting this to cases where government has been left no freedom of policy at all by the treaty, or to severe formal and procedural defects. The case law is very complex and contradictory, complicated by the fact that the phrase "generally binding nature" is assumed to have exactly the same meaning in both articles. Article 95 states that law regulates the publication of treaties or (binding) decisions of international organisations; delegation is allowed.
A second group of articles consists of those pertaining to the national security. Before the revision of 1983 these were combined in a separate Chapter 10; the articles as such remained largely unchanged in 1983, but were finally fully revised in 2000. Article 96 states that a prior approval of the States-General is necessary for the government (since 1983 no longer the King) to declare that the Kingdom is in a state of war
Declaration of war
A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act by an authorized party of a national government in order to create a state of war between two or more states.The legality of who is competent to declare war varies...
. This approval must be given by the United Assembly (Subarticle 3), as it would be most embarrassing if the House of Representatives approved but the Senate withheld approval. If the existing war conditions make such an approval impossible it is not required. Indeed the approval has little value in any case: it should be noted the subject of the article is not the classic declaration of war
Declaration of war
A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act by an authorized party of a national government in order to create a state of war between two or more states.The legality of who is competent to declare war varies...
, as such a declaration according to doctrine might constitute a war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
by implying a war of aggression
War of aggression
A war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under...
forbidden by international law. It is a simple declarative statement of fact, without legal consequences, that a war situation has come to exist. The doctrine of many other nations makes no such distinction. Article 97 states that a defence force exists to defend the Kingdom and its interests and to maintain and promote the international rule of law; Subarticle 2 determines that the supreme authority over this defence force is exercised by the government; there is thus no constitutional supreme commander
Commander-in-Chief
A commander-in-chief is the commander of a nation's military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military...
. This defence force consists of volunteers and may contain conscripts (Article 98). Since Napoleonic times conscription
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...
had been the rule and voluntary service the exception; this has now been inverted to accommodate the creation of a fully professional army in 1997. However the old laws regulating conscription have only been suspended, to be reactivated in case of emergency; this is given a constitutional basis by Subarticle 2; delegation is allowed. A provision that has remained unchanged is Article 99, stating that law regulates the exemption of military service
Military service
Military service, in its simplest sense, is service by an individual or group in an army or other militia, whether as a chosen job or as a result of an involuntary draft . Some nations require a specific amount of military service from every citizen...
for conscientious objector
Conscientious objector
A conscientious objector is an "individual who has claimed the right to refuse to perform military service" on the grounds of freedom of thought, conscience, and/or religion....
s; delegation is allowed. In 2000 a new Article 99a was inserted, that law has to regulate civil defence; the older legal system regulating this issue had been largely abolished since the end of the Cold War
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
. Delegation is allowed. Government has to inform the States-General about any intended foreign deployment of Dutch forces outside of defence treaty obligations, thus to protect the international rule of law and for humanitarian missions (Article 100). In an emergency situation such information can be given after the facts. Both government and parliament tended to present this duty as a kind of implicit approval, as parliament could in principle force government to call off the mission, but the Council of State has made clear this is at least formally not the case. Article 101 (mobilisation) has been abrogated in 1995, Article 102 (defence budget and prohibition of billet
Billet
A billet is a term for living quarters to which a soldier is assigned to sleep. Historically, it referred to a private dwelling that was required to accept the soldier....
ing) in 2000. Article 103 states that law has to determine in which cases a Royal Decree may declare a state of emergency
State of emergency
A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
to maintain external or internal security; delegation is allowed. The powers of lower administrative bodies can be limited; the basic rights expressed in Articles 6,7,8,9, 12 Subarticle 2, 13 and 113 Subarticle 1 and 3 can be infringed upon (Subarticle 2). Royal Decree may end the state of emergency. The States-General decide in United Assembly whether the state of emergency must be maintained, immediately after its declaration and as often as they see fit afterwards (Subarticle 3).
The third group consists of articles pertaining to financial issues. Imposed taxation must be based on formal law (Article 104). Delegation is allowed. However, to indicate this must be done hesitantly, parliament insisted on a slightly different terminology: instead of krachtens de wet the phrase uit kracht van wet was used; both mean "by force of law" or "pursuant to law"; but the second expression puts somewhat more emphasis on the force of the law and thus on the fact all delegation is ultimately derived from law. A yearly budget is on Prinsjesdag presented to the States-General, its balance sheet approved by the Court of Audit(Article 105). Delegation is not allowed. The budget debates are held by the House of Representatives, with a separate treatment of each departmental budget and of special interdepartmental budgets; since 1971, the Senate immediately approves the budget formally in exchange for full policy debates. Article 106 states that formal law regulates the monetary system
Monetary system
A monetary system is anything that is accepted as a standard of value and measure of wealth in a particular region.However, the current trend is to use international trade and investment to alter the policy and legislation of individual governments. The best recent example of this policy is the...
. Delegation is allowed. The article has lost its relevance by the introduction of the euro
Euro
The euro is the official currency of the eurozone: 17 of the 27 member states of the European Union. It is also the currency used by the Institutions of the European Union. The eurozone consists of Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,...
in 2002; doctrine holds that the constitution does not demand a purely national system.
A fourth and last group of articles pertains to judicial issues. Article 107 is the "codification article". It imposes that that private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
, penal law
Penal law
In the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs...
and the separate procedural law
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
s covering these subjects must indeed be formal law and treated in a general Civil Code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
and a Penal Code, although certain subject might be covered by special laws. Delegation is allowed but doctrine holds that criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
(which is seen as a more limited field than general penal law) must be determined by formal law only. This means provinces and municipalities cannot create their own criminal code
Criminal Code
A criminal code is a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law...
s and government cannot make a certain act a crime by a Royal Decree not based on formal law. As the administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
of the Netherlands is so complex, it was deemed impossible to incorporate it in a single code, but its general rules must be covered in a general code (Subarticle 2) as has indeed gradually been done since the nineties, be it with great difficulty. Article 108 (investigative bodies for civil complaints) has been abrogated in 1999. Article 109 states that the position of civil servants, including their protection and workers' participation must be determined by law. This has as yet not been done in any general way. Doctrine holds that civil servants enjoy full protection by constitutional basic rights. Article 110 imposes a duty upon government to safeguard by formal law sufficient public access to information regarding governmental activities. Delegation is allowed. The government does not see this as some general "right to public access to information" and this has been the reason not to insert it into Chapter 1, but this interpretation is quite popular in doctrine as the right does even more resemble a freedom right than a social right.
Article 111, the last of this paragraph, stands alone; it determines that formal law shall instate honorary Royal Orders of Knighthood. These are in fact the Order of William
Order of William
The Military William Order, or often named Military Order of William , is the oldest and highest honour of the Kingdom of the Netherlands. The Order's motto is Voor Moed, Beleid en Trouw...
, the Order of the Netherlands Lion and the Order of Orange-Nassau
Order of Orange-Nassau
The Order of Orange-Nassau is a military and civil order of the Netherlands which was created on 4 April 1892 by the Queen regent Emma of the Netherlands, acting on behalf of her under-age daughter Queen Wilhelmina. The Order is a chivalry order open to "everyone who have earned special merits for...
. They do not include Royal House Orders, which are the personal prerogative of the King, such the House Order of Orange
House Order of Orange
The Order of the House of Orange , sometimes referred to as the House Order of Orange, is a dynastic order of the House of Orange-Nassau, the royal family of the Netherlands...
and the later Order of the Crown
Order of the Crown (Netherlands)
The Order of the Crown is a house order of the Dutch Royal House of Orange-Nassau. The order came into being as a result of Queen Juliana's reorganization of The House Order of Orange in 1969. The 18 classes of the House order were no longer felt to be appropriate in the ever more egalitarian...
and The Order for Loyalty and Merit
The Order for Loyalty and Merit
The Order for Loyalty and Merit is a house order of the Dutch Royal House of Orange-Nassau. The Order came into being as a result of Queen Juliana's reorganization of The House Order of Orange in 1969....
. Each year many thousands are honoured by the constitutional orders.
Chapter 6: Administration of justice
This chapter regulates the Dutch judicial system. The central subject is the relation between the judiciaryJudiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
and other court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s. The term "judiciary" is not meant to indicate the Judicial of the Trias politica, but rather a purely organisational complex of judicial institutions: those courts are simply part of the judiciary that are designated as such by formal law (Article 116). Their organisation, composition and competence is regulated by law; delegation is possible (Subarticle 2). However, one safeguard that is typical of the Judicial, to guarantee its independence, is also characteristic of the Dutch judiciary: its members are appointed for life (Article 117); they can resign voluntarily or will be fired at an age determined by law (Subarticle 2); present law prescribes an age of seventy. Other principles, like impartiality
Impartiality
Impartiality is a principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.-Philosophical concepts of impartiality:According to Bernard Gert, "A is...
, are not explicitly mentioned in the constitution. The law regulates to which extent persons who are not members of the judiciary, partake in its rulings; delegation is possible (Article 116, sub 3). This refers to (scientific or other) experts on a certain subject, not to a system of jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
trials, which is absent in the Netherlands.
Article 112 states the main principle: the power to judge disputes of private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
and the law of obligations
Law of obligations
The law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...
is exclusively attributed to the judiciary (subarticle 1); formal law can attribute other judicial powers to either the judiciary or other courts; delegation is possible as regards the regulation of the procedures and the implementation of rulings (subarticle 2). Doctrine holds that the competence of the court is determined by the nature of the legal rule on which the plaintiff founds his claim. This implies that even in administrative disputes the citizen can always assure some legal resort, simply by bringing a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
action against the State: the judiciary is then competent. Article 115 states that in the cases covered by Article 112, sub 2, always some administrative appeal is possible. However, it does not guarantee a decision by an independent court: on 23 October 1985 the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
ruled that the Crown Appeal by the Council of State, then by exclusion the highest administrative appeal court, lacked the necessary independence. This necessitated a complete revision of the Dutch administrative court
Administrative court
Greece, as a civil law country has administrative courts. The establishment of those courts can be found in article 94 of the Constitution of the Hellenic Republic 1975, as revised in 2001. The administrative courts are composed from districts Courts of First Instance, district Courts of Appeal and...
system, resulting in a much expanded access to independent administrative courts.
Article 113 exclusively attributes also the power to judge offences to the judiciary. However, law can regulate the establishment by government of disciplinary courts outside of the judiciary. Delegation is possible (Subarticle 2). The judiciary is attributed the exclusive right to impose a punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
entailing a deprivation of liberty (Subarticle 3). This does not refer to forms of detention
Detention (imprisonment)
Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to criminal charges being raised against the individual as part of a prosecution or to protect a person or property...
that are not punitive in nature. Law may regulate exceptions to the provisions of Article 113 in case of trials held outside of the European territory of the Netherlands or of proceedings of martial law
Martial law
Martial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the law...
; delegation is possible (Subarticle 4).
Article 114 entails a civil right: the prohibition of the death penalty, included by the constitutional revision of 1983 after the death penalty itself had already been abolished in 1870. The article is not a guarantee, as doctrine holds that in a state of emergency any right might be suspended by unwritten constitutional emergency law; also in principle some treaty might oblige the judge to impose the death penalty. However, in fact the Netherlands have ratified the Sixth Protocol of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, also containing a prohibition and having precedence over any other treaty. Therefore, since 1986 no Dutch judge has any formal competence to impose the death penalty. Nevertheless, the Dutch government might by treaty be obligated to cooperate with some international tribunal with the powers to impose the death penalty, such as the International Military Tribunal once was.
Article 118 regulates the Dutch Supreme Court, the Hoge Raad der Nederlanden
Hoge Raad der Nederlanden
The Supreme Court of the Netherlands is the highest court of the Netherlands, Curaçao, Sint Maarten and Aruba. The Court was established on 1 October 1838 and sits in The Hague, Netherlands....
. Their members are appointed from a shortlist of three, made by the House of Representatives of the States-General (Subarticle 1). Formal law determines in which cases the Supreme Court may reverse judgments of lower courts (cassation
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
) for violation of the law (Subarticle 2). The Supreme Court in revision only decides points of law, not substantial matters. Other duties may be attributed by formal law (Subarticle 3). These other duties in fact include the resolving of conflicts of competence between courts, penal trials against judges for offences committed in office, disciplinary and advisory tasks and the decision in disputes about prizes taken by Dutch vessels. Article 119 attributes the exclusive right to the Supreme Court of trying members of the States-General, ministers and secretaries of state, whether incumbent or formal, for offences committed in office. It also states such a trial is instigated by either a Royal Decree or a decision by the House of Representatives.
Article 120 states that no judge will judge the constitutionality of laws and treaties. Therefore no constitutional review of formal laws is possible; the Netherlands lack a Constitutional Court. However, regulations of lower administrative bodies may be tested against the constitution by the courts. Also any law may be tested against any self-executing treaty, though this rarely happens.
Article 121 states three safeguards for a fair trial: the first is that trials are public. The second is that judgments must specify the considerations and grounds upon which they are based. The third is that any judgment must be pronounced in public. Any exception to these principles can only be made by formal law; no delegation is possible. Article 122 states that pardon
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
is granted by Royal Decree, on advice by a court indicated by law. Formal law regulates the procedure; delegation is possible. Also an amnesty
Amnesty
Amnesty is a legislative or executive act by which a state restores those who may have been guilty of an offense against it to the positions of innocent people, without changing the laws defining the offense. It includes more than pardon, in as much as it obliterates all legal remembrance of the...
is possible by a special law or by force of such law; delegation is possible (Subarticle 2).
Chapter 7: Provinces, Municipalities, Water Boards and Other Public Bodies
The Netherlands form a decentralisedDecentralization
__FORCETOC__Decentralization or decentralisation is the process of dispersing decision-making governance closer to the people and/or citizens. It includes the dispersal of administration or governance in sectors or areas like engineering, management science, political science, political economy,...
unitary state
Unitary state
A unitary state is a state governed as one single unit in which the central government is supreme and any administrative divisions exercise only powers that their central government chooses to delegate...
, meaning that although the state is not a federation
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
, some bodies have an autonomous power of regulation, either based on a territorial division or on a functional division.
Article 123 states that province
Provinces of the Netherlands
A Dutch province represents the administrative layer in between the national government and the local municipalities, having the responsibility for matters of subnational or regional importance. The government of each province consists of three major parts: the Provinciale Staten which is the...
s and municipalities
Municipalities of the Netherlands
|All provinces of the Netherlands are divided into municipalities , together 418 , excl. the 3 "special municipalities" of the Caribbean Netherlands.Among the municipalities we can distinguish:...
can be established and abolished by formal law, hereby indicating the two levels of territorial division. The twelve Dutch provinces still largely coincide with their medieval predecessors, with the exception of Flevoland
Flevoland
Flevoland is a province of the Netherlands. Located in the centre of the country, at the location of the former Zuiderzee, the province was established on January 1, 1986; the twelfth province of the country, with Lelystad as its capital...
, and North
North Holland
North Holland |West Frisian]]: Noard-Holland) is a province situated on the North Sea in the northwest part of the Netherlands. The provincial capital is Haarlem and its largest city is Amsterdam.-Geography:...
and South Holland
South Holland
South Holland is a province situated on the North Sea in the western part of the Netherlands. The provincial capital is The Hague and its largest city is Rotterdam.South Holland is one of the most densely populated and industrialised areas in the world...
, which were created in 1815 from Holland; the municipalities have recently been greatly decreased in number. Formal law regulates changes in their boundaries, delegation is allowed (Subarticle 2).
Article 124 states the main principles of decentralisation: provinces and municipalities are competent to regulate and administrate their internal affairs (Subarticle 1), delegation is possible — but only by the provinces and municipalities themselves (Article 128); nevertheless demands, regulated by formal law, can be made by the central government on such regulative and administrative powers; delegation is allowed (Article 124 sub 2). So the lower territorial administrative bodies have on the one hand a relative autonomy — but on the other hand they must work within the national legal framework, loyally implement national government policy and are subject to central control. This is further covered by Article 132: the standard organisation of provinces and municipalities and the compoistion and competence of their administrative organs is regulated by formal law (Subarticle 1); how they are controlled is regulated by law (Subarticle 2); their decisions shall only be subject to prior supervision in cases determined by law or by force of law (Subarticle 3); their decisions shall only be quashed by Royal Decree and on grounds that they violate the law (in the broadest sense: the recht) or conflict with the public interest (Subarticle 4). Law will in general regulate the kind of provisions to be made if provinces or municipalities fail to meet the demands of Article 124 sub 2 (Subarticle 5). Which taxes may be levied by provinces and municipalities and their financial relationship with the state, are determined by law (Subarticle 6).
Article 125 indicates the main administrative organs of the lower territorial administrative bodies: in the case of the provinces these are the States-Provincial
States-Provincial
The States'-Provincial is the provincial parliament and legislative assembly in each of the Provinces of the Netherlands. It is elected for each province simultaneously once every four years and has the responsibility for matters of sub-national or regional importance...
; the municipalities are administrated by the municipal councils. Their sessions are public, except in cases regulated by formal law; delegation is allowed (Subarticle 1). The sessions of the States-Provincial are presided by the Commissioner of the King
Queen's Commissioner
The Queen's Commissioner is the head of a province in the Netherlands, who is chairman of both the Provinciale Staten and the Gedeputeerde Staten , but only has a right to vote in the latter...
, those of the municipal councils by the mayor (Subarticle 3). The Commissioner of the King is also part of the provincial administration as are the Deputised States
Gedeputeerde Staten
The gedeputeerde staten are the executive councillors of a Dutch province. Together with the Queen's Commissioner they form the College van Commissaris van de Koningin en Gedeputeerde Staten, which is the executive council of the province. States Deputed are elected by the States Provincial, the...
; the mayor is also part of the municipal administration, as is the College of Mayor and Aldermen
College van Burgemeester en Wethouders
The college van burgemeester en wethouders is the executive board of a municipality in the Netherlands. This local government body plays a central role in municipal politics in the Netherlands. It consists of the mayor and the members of the municipal executive...
(Subarticle 2). In this system the administrative organs exert the function of both the executive and legislative (Article 127); however to form the daily administration they appoint Deputised States (for provinces) or the Colleges of Mayor and Aldermen (municipalities). In 2002 the system underwent a major revision the "aldermen" (wethouders) and States Deputised were no longer allowed to be members of the municipal councils or States Provincial respectively. This makes their function designation a misnomer, although the etymology
Etymology
Etymology is the study of the history of words, their origins, and how their form and meaning have changed over time.For languages with a long written history, etymologists make use of texts in these languages and texts about the languages to gather knowledge about how words were used during...
of the word "wethouder" or "deputised" is no longer commonly understood. The Commissioner of the King and the mayor are officials, appointed by Royal Decree (Article 131). A proposed revision to introduce an elected mayor, recently was rejected by the Senate. The mayor has some legal executive powers of his own, mainly regarding the protection of public order, but these have no direct constitutional basis, they are delegated by the national legislator. Article 126 states however that formal law may determine that instructions regarding his office may be given to the Commissioner of the King by the national government. For cases of gross neglect of administrative duty, formal law will regulate the kind of provisions to be made in deviation of Articles 125 and 127 (Article 132, sub 4)
The members of the States-Provincial
States-Provincial
The States'-Provincial is the provincial parliament and legislative assembly in each of the Provinces of the Netherlands. It is elected for each province simultaneously once every four years and has the responsibility for matters of sub-national or regional importance...
and the municipal council are directly elected by their constituents. The conditions of the right to elect and be elected are the same as those regarding the elections of the House of Representatives (Article 129 sub 1). However formal law may give inhabitants of municipalities, that do not have the Dutch nationality, the right to elect, and be elected in, the municipal council, if they meet the other conditions (Article 130). This right has indeed been given to certain categories of foreign nationals, e.g. all citizens of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
. The elections take place within a system of proportional representation (Article 129 sub 2); the vote is secret and the organisation of the voting is regulated by law (Subarticle 3). The term of the States-Provincial and the municipal council is four years, unless formal law determines otherwise (Subarticle 4) Law determines possible incompatibilities of function, and may determine that family ties, marriage or the commission of acts indicated by such law may lead to a loss of membership (Subarticle 5). E.g. membership of a municipal council is incompatible with that of the Council of Ministers; a lawyer will lose his membership of a municipal council if he represents his municipality in court. All members vote without mandate (Subarticle 6). This is a reference to the situation under the Republic when the members of the States of a province voted on instruction from the city councils they represented.
Revision of the constitution
There used to be several additional articles with Roman numbering, however all except articles IX and XIX are now abrogated.Statute of the Kingdom
The constitution of the Netherlands is only applicable to the territory in Europe and its public bodies of Bonaire, Sint Eustatius and Saba in the Caribbean. Each of the four countries within the Kingdom of the NetherlandsKingdom of the Netherlands
The Kingdom of the Netherlands is a sovereign state and constitutional monarchy with territory in Western Europe and in the Caribbean. The four parts of the Kingdom—Aruba, Curaçao, the Netherlands, and Sint Maarten—are referred to as "countries", and participate on a basis of equality...
(The Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, Aruba
Aruba
Aruba is a 33 km-long island of the Lesser Antilles in the southern Caribbean Sea, located 27 km north of the coast of Venezuela and 130 km east of Guajira Peninsula...
, Curaçao
Curaçao
Curaçao is an island in the southern Caribbean Sea, off the Venezuelan coast. The Country of Curaçao , which includes the main island plus the small, uninhabited island of Klein Curaçao , is a constituent country of the Kingdom of the Netherlands...
and Sint Maarten) has its own constitution. These constitutions are legally subjected to the Statute of the Kingdom of the Netherlands, which is the constitution of the entire Kingdom. The Statute however mainly describes the relations between the different parts of the Kingdom. In addition it stipulates that each country is obliged to promote human rights, listed in a special bill of rights, and decent governance. The Kingdom of the Netherlands is a federacy
Federacy
A federacy is a form of government where one or several substate units enjoy considerably more independence than the majority of the substate units. To some extent, such an arrangement can be considered as similar to asymmetric federalism.-Description:...
, where the central government gives considerable autonomy to one part of the country (Aruba, Curaçao and Sint Maarten), but retains control over a large part (European Netherlands). There is a Government of the Realm, a Legislative of the Realm and a Supreme Court of the Realm. However these bodies are only fully formed on special occasions and by appointing special Antillian members to the normal Dutch government, parliament and Supreme Court. One of the members of the Dutch council of ministers is always also appointed a permanent "Minister of Antillian Affairs". Since 1998 this is the Minister of the Interior and Kingdom Relations; when he is acting in this capacity the council has the status of the Government of the Realm to treat minor issues. Though the Statute is in principle higher than the Dutch Constitution, there is no legal mechanism to enforce this. The Dutch Supreme Court has consistently ruled that it is forbidden for judges to test laws and administrative acts against the Statute. However the Government of the Realm can strike void any law of Aruba, Curaçao and Sint Maarten for being incompatible with the Statute. This asymmetry and the fact that foreign affairs and the defence of the Kingdom are administered by the Dutch Government in its capacity of Government of the Realm show that the frame of government of the Kingdom has also elements of a decentralised unitary state
Unitary state
A unitary state is a state governed as one single unit in which the central government is supreme and any administrative divisions exercise only powers that their central government chooses to delegate...
. The Statute can only be changed with the consent of all countries within the Kingdom; the laws to this effect can be adopted with a simple absolute majority in each of their parliaments.
General precepts
Although the constitution itself is the primary body of constitutional law in The Netherlands, it is not the only law that contains constitutional codification. A number of general precepts are encoded in a separate law known as the Law on general precepts (the Wet Algemene bepalingen). These precepts cover a number of varying topics ranging from applicability of different types of laws to persons or territories, to regulations mandating that judgeJudge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s must hear all cases brought before them.
Amending the constitution
To amend the constitution, the proposed changes must first be approved by both the House of Representatives and the Senate of the States-General with a simple majorityMajority
A majority is a subset of a group consisting of more than half of its members. This can be compared to a plurality, which is a subset larger than any other subset; i.e. a plurality is not necessarily a majority as the largest subset may consist of less than half the group's population...
(more than 50%). This law is called a voorstelwet or 'law to propose changes to the constitution' (lit.
Literal translation
Literal translation, or direct translation, is the rendering of text from one language to another "word-for-word" rather than conveying the sense of the original...
proposal law) and does not alter the constitution, but declares there are sufficient grounds for a certain proposal to change the constitution to be considered. The House of Representatives must then be dissolved and general elections held. The proposed changes to the constitution are then discussed a second time, this time needing a two-thirds majority in both houses of parliament to approve them. This is intended to give voters a say in the matter, by allowing them the opportunity to elect a parliament to vote down the changes if desired. In practice, however, the House of Representatives has never been dissolved and elections held specially for this purpose. Instead the law proposing changes to the constitution is adopted shortly before the next regularly scheduled elections. Consequently, unless early elections are held for some reason (e.g. following the collapse of the government) changes to the constitution can only occur once every four years. In earlier versions of the amendment process, the Senate was also dissolved whenever general elections were held and both Houses had approved a law to propose changes to the constitution. This was deemed a pointless addition to procedure, however, as the Senate is elected by the States-Provincial
States-Provincial
The States'-Provincial is the provincial parliament and legislative assembly in each of the Provinces of the Netherlands. It is elected for each province simultaneously once every four years and has the responsibility for matters of sub-national or regional importance...
and the States-Provincial are not dissolved following the adoption of a proposal in parliament (see elections in the Netherlands
Elections in the Netherlands
Elections in the Netherlands are held for six territorial levels of government: the European Union, the state, the twelve Provinces of the Netherlands, the 25 water boards, the 418 municipalities and in two cities for neighbourhood councils...
). The Senate will therefore invariably have the same composition unless provincial elections are held as well. Neither holding provincial elections specially for this purpose, nor postponing consideration of the proposal to change the constitution until after the regularly scheduled elections is considered a desirable alternative. Changes that involve the relations between the countries of the Kingdom must be proposed by a law formulated by the Government of the Realm.
Full text
- Dutch version on Wikisource
- UNIBE.ch, 1989 and 1972 versions , University of Bern
- Dutch government website