Constitutional Review in the Netherlands: A Joint Responsibility

Abstract

Article 120 of the Constitution of the Netherlands prohibits the judicial review of laws and treaties against the Constitution. This strong emphasis placed on what is called 'legislative supremacy' is seen as one of the main characteristics of the Dutch constitutional tradition. But is it correct to define the relationship between the legislature and the judiciary in terms of the supremacy of the one over the other? After all, in order for the democratic rule of law to function properly, balance and dependency are of great importance. Several developments have led us to view constitutional law making as the joint responsibility of different national and international actors that are situated in a multipolar network of legal developments, in which relations among the actors are characterised by a certain measure of mutuality. The Council of State (Raad van State) of the Netherlands plays, seen from a Dutch point of view, an important role in this network. What is the exact role of the Dutch Council of State in this network of constitutional review and how and to what extent can the cooperation between the Council of State and the other national and international actors in this network be strengthened? These questions will be addressed in this contribution.