Object and Rationale of Constitutional Advice and Scrutiny Test
Insight into the practice of constitutional advice supposes at least some clarity about the constitution as the object of advice as well as of the task of advice. In this chapter, I use a material or broad definition of the concept of constitution instead of a formal and limited meaning thereof.[138] In the material meaning the constitution includes—limited to the Dutch context—the Dutch Constitution, both its fundamental rights and other provisions, unwritten constitutional law, the Statute of the Kingdom of the Netherlands, general constitutional principles, (human rights) treaties, including especially the European convention on human right and fundamental freedoms (ECHR) and the constitutional law of the EU, especially the EU Charter on Fundamental Rights.
Both the government as co-legislator and the Department of Advising of the Council of State use the concept of constitution in this broad material sense when advising or reviewing bills. Thus, they advise on and/or test to a complex of fundamental norms laid down or derived from different legal sources.[139] The necessity and relevance from constitutional advice and testing is the existing hierarchy of legal norms as well as the principle of legality as one of the characteristics of a democracy based on the rule of law. That principle not only implies that governmental acts are based on a legal basis, but also that that basis respects higher legal norms.[140] That follows from the system of legislation and is necessary for the functioning of a legal order that aims to be an ordered system of higher and lower norms.Although constitutional norms belong to these highest norms, there exists an internal hierarchy between them. The norms laid down in the Dutch constitution are inferior to the Statute and both of them are inferior to treaty law and EU law.
To avoid possible tensions with higher norms, the Constitution can—to a certain degree—be interpreted conform the treaty. This situation will especially be the case when constitutional fundamental rights do have a lower protection degree than the higher norms. The higher protection degree of national norms is explicitly provided for in international law (see e.g. Article 53 ECHR and Article 53 EU Charter).[141] This internal hierarchy of constitutional norms underlines once more the necessity to interpret the constitutional test and advice in the material or broad sense.Besides this principal character of respecting the rule of law, constitutional review and advice is also of a very practical significance. This is due to the prevention of spending senseless energy to capacities of civil servants, politicians and finances to the preparation of policies and legislation of which the constitutional incompatibility
can reasonably be foreseen. Such an incompatibility could have as a consequence that during the legislative process a bill still has to be amended or even will not be prompted into the parliament because of a negative advice of the Advisement Department of the Council of State.[142] In the parliamentary phase of the legislative process the constitutional incompatibility of a bill could lead to amendment or voting down the bill. Even after the adoption of a bill by the House of Representatives and the Senate and before its entering into force, the (supposed) constitutional incompatibility of the (adopted) bill might be tested and debated again, when a binding corrective referendum will be introduced.[143] Last but not least the judge is able to test the compatibility of governmental acts and legislation, once entered into force, to the Constitution, (human rights) treaties and EU Law, except the possibility of testing formal legislation to the Constitution (Article 120 of the Constitution), and attaches consequences thereto.
After all, when the application of statutory regulations in force within the Kingdom is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons, the regulations are not applicable (Article 93 in connection with Article 94 of the Constitution). In a concrete case the judge will find such rulings non-applicable in that case but can even declare the regulation as being non-binding. Moreover, to enact and enforce a law that is in conflict with higher law is illegal and implicates a wrongful act (Article 6:162 Civil Code). In practice however, the judge will regularly try to avoid these consequences by neutralizing tensions with higher law by means of a treaty or union law conform interpretation. Of course, judicial review of acts not only takes place at the national level but also by the European Courts.To be clear, firstly, not all advice from the High Councils of State is constitutional by their nature, notwithstanding their institutional positions are embedded in the Constitution. In other words, not the legal nature of the advisory body is decisive, but the nature of the object of the advice. Secondly, (constitutional) advice on policy and legislation or on other issues can be considered as being different from accountability. For example, the new European Union rule of law mechanism, which acts as a preventive tool, deepening multilateral dialogue and joint awareness of rule of law issues, should be considered more as an instrument for accountability than for advice. The same holds, for example, for oversight mechanisms from the United Nations and the Council of Europe. Thirdly, advice should be considered being different from a review/scrutiny test, although the differences can be fluid. Some further information on this third issue might be helpful, because constitutional review is frequently and predominantly associated with the (prohibited) judicial review of formal legislation.
4.3.1 Advice and Review: Constitutional Review
in the Netherlands in Short1
A mentioned before, Dutch judges can test lower rules against higher rules.
This has one notable exception. Article 120 of the Constitution does not allow judges to review the constitutionality of Acts enacted jointly by the Government and Parliament (so- called formal legislation or ‘formele wetgeving’ ex Article 81 of the Constitution) with regard to either the Charter for the Kingdom of the Netherlands, the Constitution, or unwritten principles of law. Because of this prohibition of judicial constitutional review, the Netherlands also has no Constitutional Court. The central thought behind this judicial prohibition on constitutional review, which dates back to 1848, is to protect the interpretation of the Constitution from influence by the executive and the judiciary by reserving questions of constitutionality to the legislator, who also drafts and amends the Constitution.[144] [145] The decision whether legislation is compatible with the Constitution is therefore made by the legislator ex ante. To this end a check on constitutionality is performed during the legislative process. The explanatory note attached to legislative proposals explicitly deals with this in a separate paragraph and constitutional matters are discussed in Parliamentary debates. In order to aid civil servants in composing the constitutional paragraph in the explanatory note manuals have been compiled.[146] Different proposals and advice to amend provision 120 of the Constitution were rejected in the last decades, like a bill aiming to amend the provi- sion,[147] the proposal of the state commission Thomassen on the Constitution[148] as well the advice of the state commission Remkes on the parliamentary system.[149] In its reaction to this last advice, the cabinet finally decided not to make any proposal changing Article 120.[150] Instead, the cabinet gave a follow-up to the request of the Senate (especially the CU-fraction) to let carry out a special comparative legal research.[151] This research covered Belgium, Germany, France, the United Kingdom, Saint Martin (a country within the Kingdom of the Netherlands) and the Scandinavian countries.[152] Quite a few political parties now strive for amending Article 120 of the Constitution or even for deleting it, having regard to their programs. Furthermore, a motion aiming to amend the Article 120 was adopted by a large majority of the House of Representatives.[153] A party like the SGP seems to be in favour of more efforts taken by the government and parliament themselves concerning their role in the constitutional review in the legislative process (review ex ante). This connects to the wish of the political party PvdA to educate especially MPs and civil servants in fundamental rights. That leads to the domain which is the main topic of this article: constitutional advice (and review ex ante) and its main actors.4.4