Political and International Attention and the Need for Constitutional Advice
In the Netherlands the practise of constitutional advice has been developed by building and reorganising institutions and advisory bodies over decades. The appearance of constitutional advice sometimes has adequate political attention, sometimes more, sometimes less.
The degree of attention and the political and governmental responsiveness thereto depend on manifold reasons, like the political view on the functioning of a state and on national and international developments in societies and the environment. Nowadays constitutional advice seems to be in the heart of the political and policymaking domain. In recent years there have been different parliamentary commissions who held enquiries in the constitutional domain, like the Pocob[133] and the POK.[134] Their reports caused much media-attention and extensive political debates. Reflections on the proper functioning of the system of checks and balances are still taking place following the Parliamentary investigation report of the POK finding that principles of the rule of law had not been respected and which led to the dismissal of the cabinet (Rutte III) which agreed to the conclusions. Follow-up measures and inquiries are currently envisaged or ongoing. Besides, the Netherlands, like all other countries in the world, faced the Covid-19 pandemic, which led to internal and external constitutional advice and intensive debates in parliament on concrete measures which aim to protect and promote public health while respecting and ensuring other fundamental rights (liberty, political and social economic rights). In particular debates were going on about a law adopted to provide a more solid legal basis for Covid-19 measures and high-profile Covid-19 measures were challenged in court. All societies do need a multi-annual thoroughly (not at least: constitutional and ethical) reflection about living together, as a result of the pandemic, but also in a context which dominated public and political discourse the last twenty years: the multicultural and religious transformed societies. Furthermore climate-issues are high on the political and legal agenda, partly because of the constitutional rights- based arguments of some landmark cases like Urgenda and Shell.[135] Finally, but not at least and not limited to the next topics, digital technology and (il)liberal democracy continue to be objects of debate, research, policy, legislation and constitutional advice.Dealing with these high-sensitive and complex issues, independent authorities, including the High Councils of State, the National Human Rights Institute (NHRI) and (other) advisory bodies, as well as the free media and legal units within ministries do play an important role in the system of checks and balances, including for safeguarding fundamental rights.[136] Besides, civil society itself plays an important role. It continues to be open, although questions have been raised regarding new draft legislation on transparency and legislation expanding the possibilities to prohibit so-called ‘radical organisations’ and of the prohibition of foreign funding of these radical organisations which ‘undermine the democracy based on the rule of law’. In the meantime, the proliferation of legal norms and oversight mechanisms continues, like the so-called rule of law mechanism in the EU. Next to this, international actors continue to call the national executive, who is urged to reconcile all interests in the complex frontline right at the moment, to account and to explain directly what measures are taken and for what reason.
Against this background, there seems to be an urgent need for the continuation or even strengthening of robust constitutional advice. At the same time, the absorption capacity of the executive sometimes—especially in times of crisis—seems to be exaggerated. Therefore, constitutional advisory bodies should take care of their effectiveness for having impact, while the executive should be responsive and make full use of the know-how of advisory bodies, where possible. This last clause is not only a question of time, but also of content; advice is namely not always right. Although listening to such advice might still be appreciated positively, taking over unconstitutional advice is obviously not.[137]
4.3