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 Cossacks, 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 electors 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 Second Chamber of the States-General were still appointed by the Provincial States (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 Provincial States (first only true for Friesland) and the city councils were appointed by electoral colleges 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 monarchal, with the king appointing for life the members of the First Chamber, 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 Second Chamber directly elected by the voters within a system of single-winner electoral districts. Parliament was attributed the right to amend government law proposals and to hold investigative hearings. The Provincial States, themselves elected by the voter, appointed by majorities for each province the members of the First Chamber 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 Second Chamber was changed from two (with half of it replaced) to four years (with full a replacement of now hundred members). Elegibility for the First Chamber was expanded. 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 Second Chamber, the Provincial States and the municipality councils. The First Chamber continued to be elected by the Provincial States, 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 First Chamber were to be elected by the Provincial States 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 Second Chamber members was brought up to 150, of First Chamber members to 75.
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 First Chamber. After a minor revision in 2002, the last changes were made in 2005; a proposal to introduce an elected mayor was rejected by the First Chamber.
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 King, 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 conventions 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 is centered on the problem of delegation. If the legislative were allowed to delegate its powers to the government or to lower decentralised bodies, this would threaten democratic legitimisation and the constitutional protection of the citizen as the latter has 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 nowhere explicitly expressed within the written law and can only be learned from the official commission reports and ministerial commentaries accompanying the bill.
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:
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).
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 countersigned 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.
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 Chambers 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 Chamber appoints its own chairman 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 Chamber by Royal Decree. Within three months elections have to be held (Subarticle 2). The duration of a new Second Chamber after dissolution is determined by law and not to exceed five years (Subarticle 4). The dissolution only takes effect when the new Chamber 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 Second Chamber 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 dissolution" was replaced by "crisis dissolution" 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.
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 Chambers (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 Chambers 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.
The second is the General Audit Office (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 Second Chamber (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 Audit Office (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 Audit Office not only performs financial audits but also "value for money" efficiency analyses; it also reports on the effectiveness of all governmental policy via performance audits. 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 Audit Office a 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 Second Chamber for a certain period of time, to be determined by law. They are in any case dismissed by the Second Chamber 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 Audit Office.
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).
Bills are presented by the King or by the Second Chamber, 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 First Chamber 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 Second Chamber has the right of amendment; government too may amend (Article 84). The First Chamber only can pass or reject laws in full (Article 85), defended by the responsible minister or by the Second Chamber members 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 Second Chamber, in fact an amendment of law. Bills may be withdrawn by the proposer until passed (Article 86), but only by a majority of the Second Chamber if the bill has been presented by some Second Chamber members and has been passed by the Second Chamber. 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. 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 are 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 Chambers. 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 Second Chamber approved but the First Chamber 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 objectors; 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 billeting) 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 Audit Office (Article 105). Delegation is not allowed. The budget debates are held by the Second Chamber, with a separate treatment of each departmental budget and of special interdepartmental budgets; the First Chamber since 1971 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 laws 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 codes 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.
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 an absolute 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 Second Chamber 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 Second Chamber.
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).
Article 123 states that provinces 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 Provincial States; 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 Provincial States 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 First Chamber. 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 Provincial States 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 Second Chamber (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 Provincial States 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.
There used to be several additional articles with Roman numbering, however all except articles IX and XIX are now abrogated.
In December 2008 Curaçao as well as St. Maarten will become separate countries; constitutions are in preparation. The three smaller Antillean islands will become special municipalities of the Netherlands proper, extending that country outside Europe, and these islands will then be subject to the Dutch constitution.
Unpardonable Sins: The Hazards of Performative Language in the Tragic Cases of Francesco Spiera and Doctor Faustus
Mar 22, 2004; In 1548, Francesco Spiera, an Italian Protestant who had been compelled to abjure his faith by the Roman Inquisition, died under...