The German Law Journal

Constitutional Review by the Judiciary in the Netherlands: A bridge too far?

By Gerhard van der Schyff

Suggested Citation: Gerhard van der Schyff, Constitutional Review by the Judiciary in the Netherlands: A bridge too far?, 11 German Law Journal 275-290 (2010), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1238

One might be forgiven for thinking that constitutional review by the judiciary is a universal feature of modern liberal democracies. However, the Netherlands proves to be an exception in this regard. The Dutch Constitution contains a bar that prohibits acts of parliament from being reviewed by the courts. Interestingly, courts are enjoined to review acts of parliament (and other statutory regulations) for compliance with binding international law. This anomaly has been the topic of much debate over the years. In 2002 a private member’s legislative bill was tabled in Parliament that foresees a constitutional amendment to partially lift the bar on constitutional review. The proposal passed its first legislative reading, but is still awaiting a second reading, during which it must pass both houses of parliament with a two-thirds majority. This contribution evaluates the current state of the debate surrounding the possibility of reform and comes to the conclusion that a clear constitutional moment is lacking in the Netherlands. The effect of this is that there might not be enough political momentum to see reform through – the bar on constitutional review will in all likelihood remain a central feature of the Constitution for the foreseeable future.

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