Should judicial review be allowed in the Netherlands?
In the aftermath of the child care benefits scandal in the Netherlands, politicians in The Hague turned to self-reflection and, as a result, the call for the introduction of a constitutional court is growing louder. Pieter Omtzigt, a popular conservative politician and leader of the new party New Social Contract, is a clear advocate. Geerten Boogaard, Professor of Local Government in Leiden, says in Dutch newspaper NRC that ‘there is no justification for prohibiting judicial review’.
Boogaard gives the reason that ‘since 1953, courts in the Netherlands have been allowed to review statutory regulations against international human rights treaties, such as the European Convention on Human Rights.’ Currently, courts in the Netherlands are prohibited from conducting a review of the constitutionality of laws since parliament itself can and should determine whether a law is in line with the Constitution. By contrast, almost all European countries have some form of constitutional review, with Scandinavian countries adopting a staggered system of review which gives courts that power. The outgoing Rutte IV cabinet is also in favour of staggered review, provided that only fundamental freedom rights are reviewed. This would offer citizens better legal protection vis-à-vis public authorities and provide clarity sooner than is the case at present, according to the NRC report.
Omtzigt further believes that courts should also be able to review organisational constitutional provisions. These are rules that regulate the relationship between authorities and public bodies such as the government and parliament. For example, the section in the Constitution on the government’s duty to inform, which obliges the government to provide information to MPs. Would that not put the court too much in the chair of the politicians? Boogaard: ‘The fear of politicisation of the judiciary is justified, but that should not be a reason to prohibit review. You can stipulate that courts should only conduct constitutional review in specific cases, and also that they should exercise restraint. But in all cases, the courts themselves will have to answer the question of what constitutes restraint’.
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