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Netherlands Constitution: Basic Provisions A constitution resembles a sharp pencil of light which brightly illuminates a limited area of a countrys political life before fading into a penumbra where the features are obscured even if that surrounding darkness may conceal what are the most potent and significant elements of the political process. S. E. Finer, Five Constitutions, Brighton 1979, p. 15.
From the very beginning it was adopted, the constitution of Netherlands it has been a normative one. The present variant of the Constitution resembles from the one that was written and adopted back in 1814. This variant of Constitution was revised several times, of which the revision of 1848 was the most significant. Several historical facts would be essential when interpreting the Dutch Constitution and its provisions. The fact is that during the period of almost 200 years the Kingdom of Netherlands evolved from autocratic country to a state of liberal democracy, which presented at the time a constitutional monarchy having a full parliamentary system of government. Consequently, the liberal state developed into a social welfare state.
Worth mentioning are such historical events as decolonization and creation of a more federal structure of Dutch government. They are important because they are reflected in the content of the Constitution. It is remarkable that the procedure for a revision to the Constitution has itself numerously been a subject for revisions. Though at present the procedure of amending the Constitution has been essentially simplified, now it is far from being a flexible one. In the second half of the 19 th century a variety of other introduction s and handbooks on constitutional law were published. Even though these works, which also noticeably bore the marks of the political and philosophical persuasions of their authors, had a more systematic approach to the discussion area of constitutional law, the Constitution and its elucidation held a important position.
In this period, two commentaries on the Constitution, in its 1848 form, were published as well. The most significant of these commentaries was the three-volume research by J. T. Buys. Buys, a liberal by political opinion, introduced a new approach to the constitutional law. He was influenced by the logic-dogmatic approach and the Begriffsjurisprudenz then fashionable in Germany.
as a substitute to entering the debate on the will of the constitutional Legislature he introduced a more system-oriented approach by making-up a system from existing rules, which could then be used as a principle for solving other constitutional problems. The effect was an analysis that was less political and less concerned with legal positivism than had beforehand been the case. Among the important characteristics of the Dutch Constitution is the absence of explicit statements of leading principles or ideological commitments. (Kortmann, 1994, p. 79) One of the significant features that differentiate the Dutch Constitution out of the majority of other European countries constitutions is that it has no preamble and never had. It contains absolutely no statements regarding the origins and sources that would reveal public authority and sovereignty. The Constitution includes no references concerning a particular value system, like in a German Constitution. The only reference included is that a Constitution of such a liberal democracy integrates the basic principles and values of a liberal democracy in a set of predominantly procedural mechanisms, such as limited and democratic government and the protection of fundamental rights, intending to contain any form of ideology. (Smith, 1989, p. 128) The statement that identifies the Constitution of Netherlands as a normative one makes the spectrum much more diffuse.
Frankly speaking, the Constitution does not cover all the spectrum of issues covered by Constitutional Law. In its 142 Articles it deals with all the main areas of Constitutional Law. However, the most important rule of the parliamentary system, the rule of confidence, was developed in the second half of the nineteenth century, and has not been uncodified up to present. The aforementioned choice was reaffirmed during the process of revision in 1983. Constitutional provisions present the ground for valid research, for the content of them is often open and flexible.
Thus, the dynamics of the relationships between the various state organs, such as the relationship between the two chambers of Parliament, between Parliament and the government, between the Legislature and the courts, and between the central government and the provincial and municipal tiers of government develop within the open and flexible standards of the Constitution. The actual situation and the direction of the changes provides a different flavor to the reality of constitutional law at any given moment. In any respect, the Constitution presents a large room for interpretation. For instance, the Constitution determines the legal procedure for dissolution of particular chambers of Parliament and can prescribe the same dissolution on several occasions, but it cannot prescribe the exact occasions on which the mentioned dissolution is conducted. Moreover, the Constitution usually delegates the prescription of substantial standards to the Legislative branch of the monarchy. A lot of areas of governmental action that lie in the competence of Constitutional importance are not prescribed by any of the Constitutional provisions.
Examples of such areas of importance can be a formation of government. The legal form of appointment of government ministers is set by the Constitution as is the principle of ministerial accountability, but, as we have seen, the vital rule of confidence is unwritten. It is not in favor of the setting of these written and unwritten rules that the construction of a government takes place. According to the Constitution, the Netherlands is a constitutional monarchy that has a parliamentary system of government. As it has been mentioned, the government operates under the 1812 Constitution with a number of amendments made.
The monarch with a hereditary right, who has not much power in operating the government, functions as the head of the state, when the prime minister, being an official body, bears all the responsibility of adopting the executive decisions. The prime minister is appointed by the monarch. He operates in charge of the Cabinet that reports to the States-General (Legislature). The Parliament of Netherlands, often referred to as the States-General, contains in its structure the First Chamber, which is composed of 75 members elected for the terms up to 6 years by the provincial or regional legislatures, and the Second Chamber, which is composed of 150 members elected for the terms up to 4 years according to the system of proportional representation. Each of the Chambers or both simultaneously can be disbanded by a Monarch under the condition that the election of the new Chamber (s) is held within 40 days after the dissolution. As a matter of fact, the Second Chamber is by far much more important out of the two.
The First Chamber has a power of vetoing over the issues in the legislative process. The state of Netherlands uses the systems of proportional representation when electing municipal, provincial, and national assemblies. Such a system allows even smallest political parties win a seat in the parliament. For instance, in the election of 1986 of the Second Chamber, more than 25 parties took part in the election race, when 9 of them won the seats. On the national level, the Netherlands has always been governed by coalitions of parties, the formation of which has often proved difficult.
Returning to the Constitution itself, the codification of the one is usually a big step toward the process of constitutional ization. Dvlopmnts in law and doctrine of tak plac prior to constitutional amendment. Such bottom-up dvlopmnts hav occurred recently, for xml, in th find of quality legislation, and th stablishment of a National Ombudsman. Although many important areas of legal development are linked in some way or another to the Constitution, other important areas have escaped the constitutional rules. Indeed, many of the significant policy changes with a constitutional impact, such as wide-ranging deregulation operations and market-oriented policies, are outside of the scope of the Constitution as such. More delicate changes in the general constitutional scene make it more difficult to seize the impact and importance of the Constitution in the legal order.
These changes do not pass on so much to the dynamics of relationships between the main state actors themselves, but more to the brunt in recent decades of international legal developments, markedly European integration, and the influence of human rights treaties, specifically the ECHR on the national legal order. In summary, the Constitution is only one of the sources of constitutional law. Other sources include the Statute of the Kingdom, unwritten law and custom 10 (including case-law), organic legislation, and international and supranational law. The mix of those sources determines to a greater extent the place of the Constitution in the national legal arrangement. It is impossible to capture in full the functioning of the phenomenon of the Netherlands Constitution in one single article. In this article, several aspects of the Constitution will be highlighted in a more or less impressionistic fashion.
Word count: 1480 Bibliography: C. A. J. M. Kortmann, Constitutional Recht, Deventer 1994. S.
E. Finer, Five Constitutions, Brighton 1979. Gordon Smith, Politics in Western Europe, Aldershot 1989. Barnard, Herbert. "The Netherlands: Let's be Realistic. " World and I 13. 10 (1998): 66 - 69.
But, Wouter van der. "Floating Voters or Wandering Parties? The Dutch National Elections of 1998. " West European Politics 22. 1 (1999): 179 - 186.
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Research essay sample on Netherlands Constitution Basic Provisions
