Constitution of the Netherlands

The present constitution of the Netherlands dates back to 1815.

History

The first constitution of the Netherlands, in the sense of a fundamental law, is the 1579 constitution, which established the confederal republic of the Seven United Provinces. The constitution was empowered by the Union of Utrecht, thus by treaty. Article XIII of the treaty granted each inhabitant of the Republic freedom of conscience. The Union of Utrecht treaty inspired the American Articles of Confederation.

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 cede 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 Treatise 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 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 55 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.

The revision of 1963 accommodated the loss of Dutch New Guinea to Indonesia. The voting age was lowered from 23 to 21.

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 major was rejected by the First Chamber.

Unwritten constitutional law

Some of the most basic fundamental laws in the Dutch constitutional system are not explicitly expressed in the written Constitution. These include the rule that a cabinet must fall or an individual minister resign if a motion of non-confidence is passed by the Second Chamber; that the King cannot dissolve more than once a Second Chamber because of a conflict over a single political issue; that the ministerial responsibility extends to even private acts of the King if these have public consequences and that the First Chamber shall never block legislation for mere party politics, so that coalition governments (all Dutch governments since the 19th century) do not need a majority in 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 old cabinet offers its resign to the King, who takes it into consideration; the cabinet is now "demissionary". After the elections the King consults his advisors among which the chairmen of the Second and First Chamber and the vice-president of the Council of State. He then appoints an "Informer" who is informed by the parties which coalitions they would prefer and are willing to enter in — no modern party has ever obtained a majority by itself. On the basis of this information the King then appoints a "Former" who literally forms the government by negotiating an "accord of government" between the coalition parties, describing — always in great detail — the future policy, and the division of the ministries between them; he also invites the candidate ministers and often becomes Prime Minister himself. The King now dismisses the old cabinet and appoints the new one. As Dutch political parties are strongly internally divided, shift alliance easily and are hesitant to commit themselves to any future coalition before the elections, a competent King can often have a decisive personal influence on what coalition is formed. This has raised considerable concerns about the democratic content of the procedure, especially as it normally takes some months to complete (in 1977 seven) and all important political decisions are taken while negotiating the accord in more or less secret discussions outside of Parliament. It has often been proposed to codify the procedure in the constitution and to let the population elect the Prime Minister separately, but this has always been rejected because of the possibility of a simultaneous election of a prime minister and parliamentary majority of an opposite political signature.

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.

Content

Absence of a preamble

Contrary to many others, the Dutch constitution has no preamble stating the sovereignty by which it would be founded or the general principles on which it would be based. This is in line with a long tradition within the Dutch legislative to avoid any explicit reference to ideology or legal doctrine in its written laws. Even the typical terminology of the trias politica is mostly absent: nowhere in the constitution the executive or legislative power is named as such to be explicitly attributed, although of course such an attribution is implicit within the whole of the constitutional system.

Systematics and terminology

Civil law systems are characterised by their emphasis on abstract rules and methodology. Since the Second World War there has been a dominant movement within the Dutch legal community to be fully consequential in this and incorporate the total of case law accumulated during the generations while the old French Code Napoleon derived law books remained basically unchanged, into a completely new set of modern codes. Economy of style, clarity of expression, conceptual coherence and unity of terminology were striven for. The total revision of the Dutch constitution of 1983 is part of this process. Combined with an absence of explicit legal doctrine the result can be deceptive as the simple phrases hide the underlying implicit doctrine.

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.

Chapters

Chapter 1: Basic rights

Chapter 1 is mainly a bill of rights. There is no normative hierarchy indicated by the constitution: in principle all basic rights are equal. Some rights are absolute, most can be limited by parliamentary or "formal" law, many can be limited by delegated limitative powers. They include:

• Equality under the law and prohibition of discrimination (Article 1). This article forbids any discrimination on any ground but allows affirmative action. The right is absolute and cannot be limited by law. The article has been targeted by populist politician Pim Fortuyn in 2002 leading to his breach with Leefbaar Nederland and his creating of his own party, the Lijst Pim Fortuyn; and in 2006 by nationalist politician Geert Wilders who proposed to replace it with an article stating the Christian and humanist foundation of Dutch civilisation. Article 3 stipulates that any citizen is eligible to any public function; it has been targeted by Wilders in 2007, proposing that dual citizens should be barred from the highest functions. Nationality itself is based on article 2.
• The right to vote (Article 4). The right can be limited by formal law; no delegation is allowed.
• The right of (written) petition (Article 5). This ancient right is absolute and cannot be limited by law. The right of petition has a long tradition in the Netherlands; indeed the Dutch War of Independence started after a petition had been rejected by the Habsburg authorities, the noble petitioners being contemptously treated as "beggars" (Geuzen). The constitution of 1815 limited the ancient right to written petitions, hoping to curtail the typical disorder created by large delegations. Nevertheless such public mass petitioning has ever remained very popular. In 1983 3.7 million people signed a petition beseeching the government not to allow the installing of American nuclear cruise missiles on Dutch soil. The right does not imply a concomitant right to be answered, but in practice all public bodies have special commissions to do just that. Often petitions are directed to the King, although the system of ministerial responsibilty makes it impossible for him to take action by himself; his secretarial cabinet relegates such petitions to the relevant ministries.
• Freedom of religion (Article 6). This right can be limited by formal law; delegation is possible.
• Freedom of speech (Article 7). This article has only been partially changed in the 1983 revision, as it was linked to very complicated case law. Subarticle 1 contains the classic freedom of the press. Any censorship is absolutely forbidden. However, formal law can otherwise limit this freedom, e.g. by making a certain content punishable under penal law. Such limitative powers cannot be delegated to lower administrative bodies such as municipalities and this includes the concomitant right of distribution of printed materials. However, the Supreme Court has nevertheless ruled since 1950 that such bodies may in fact limit the distribution of materials, if such a limitation is not based on the content of those materials and does not imply a complete impediment to any separate means of distribution. They may e.g., limit the spreading of pamphlets to certain hours for reasons of public order. Subarticle 2 has the same arrangement for television and radio broadcasts. Subarticle 3, added in 1983, gives a general right of expression, for those cases neither printed nor broadcasted information is involved; this includes the freedom of speech. Again, no censorship is ever allowed, but the right can otherwise be limited by formal law; explicitely mentioned in subarticle 3 is the possibility to limit the viewing of movies by minors under the age of sixteen. Although no delegation is possible, lower bodies may limit the exercise of the right for reasons of public order if such limitations are not based on the content of the expressed views. Subarticle 4 states that commercial advertising is not protected by article 7. The Dutch constitution does not contain a freedom of gathering of information.
• Freedom of association (Article 8). This right can be limited by formal law, but only to safeguard public order. No delegation is allowed. Almost any organisation posing any conceivable danger to public order in the broadest sense is forbidden by the the still extant Wet vereniging en vergadering ("Law of association and assembly") of 1855, but this law only very rarely leads to an official disbandment of an organisation as a legal subject under the civil code. Dutch legal doctrine holds that the freedom of association does not protect against forced membership of organisations, e.g. when such membership is a condition for being active in a certain profession.
• Freedom of assembly and freedom of demonstration (Article 9). The revision of 1983 split the old combination of "freedom of assembly and association" and added the former to a new freedom of demonstration. The right can be limited by formal law. Delegation is allowed but only to protect public health, for traffic concerns and to prevent public disorder.
• Right to privacy (Article 10). This right, introduced by the revision of 1983, is a general right to be protected whenever the personal integrity is threatened. The right can be limited by formal law. Delegation is allowed, but only in relation to databases. The article imposes a duty on the government to protect against a threat to privacy posed by a possible abuse of databases (subarticle 2); and to regulate the right of persons to be informed about the content of such databases concerning their person and the right to improve possible mistakes in such content (subarticle 3).
• Inviolance of the (human) body (Article 11). This right, introduced by the revision of 1983, can be limited by formal law; delegation is allowed. The right is a subspecies of the general right to personal integrity expressed in article 10, so no dichotomy is intended between the two concepts. It protects against violations like forced medical experiments, corporal punishment, torture and mutilation. It does not end with death and thus demands a legal basis for organ donation.
• Prohibition of unlawful entry of the home when no permission of the inhabitant has been obtained (Article 12). Although often presented as a general "right of the home", this article is in fact more based on the principle that the authorities do have a fundamental right to enter homes, but that this must be given a legal basis. The law has to indicate in which case and by which persons entry is legal. Delegation is allowed. Dutch courts tend to give precedence to the practicality of police investigation, so this article has had little protective value.
• Secrecy of communication (Article 13). Subarticle 1 contains the privacy of correspondence. This can only be violated on order of a judge and only in those cases indicated by formal law. No delegation is allowed. The judge in question is rarely a court but in practice the investigative judge (rechter-commissaris). The Dutch penal code offers a further protection of this right as several types of violating it are punishable as crimes. Subarticle 2 contains the privacy of communication by telephone and telegraph. This right can be limited by law; such law has to indicate which persons have the authority to allow a violation. No delegation is allowed. For most cases again the investigative judge has the competent authority. Since the nineties there is doctrinal consensus that the right extends to cell phone communication, but earlier this was contended. In practice the Dutch police taps any telephone communication at will, irrespective of authorisation and with full cooperation of the telephone companies. Although this situation is embarassing from a constitutional point of view, authorities and courts are hesitant to act against it, for reasons of practicality. However it has often been ruled that information thus gained cannot be admissible as evidence in court.
• Prohibition of unlawful expropriation (Article 14). The Dutch constitution contains no general right to property. This has been defended by successive governments with the argument that such right is so fundamental to Dutch society that it is redundant to explicitly mention it. Expropriation is only allowed to serve the public interest and on the condition that prior formal assurance is given of (full) indemnity, meaning that some exact sum has to be determined. It has to be based on law; delegation is allowed, but only as regards the indemnity determination procedure, not the expropriation as such. Subarticle 2 states however that in an emergency situation the prior assurance has not to be given — in those cases the amount of compensation will be determined later. Subarticle 3 extends this arrangement to cases of destruction, partial damage, total loss and limitations of the right to property, caused by the competent authority to serve the public interest. Normal cases of damage are ruled by the civil code.
• Right to liberty (Article 15). This right can be limited by formal law. Delegation is allowed since the revision of 1983. Subarticle 2 safeguards access to the competent judge for anyone detained; this judge has the power to order the release of the detainee, like in the common law habeas corpus doctrine. In fact all relevant laws order the authorities to obtain approval from the judge within a certain time limit, but deny to the detainee access by his own initiative until that limit has been reached. Subarticle 3 contains the penal law obligation of the authorities to ensure that a trial takes place and is finished within a reasonable period of time. This right cannot be limited by law. In fact the Dutch penal code contains loopholes making it possible to delay trials indefinitely. Subarticle 4 states that all basic rights of a detainee can be limited in the interest of his detention.
• Nulla poena sine praevia lege (Article 16). This fundamental principle of legality, already present in the penal code and introduced to the constitution in the revision of 1983, is absolute and cannnot be limited by law. However at the same time the additional article IX was added to the constitution making an exception for war crimes and crimes against humanity.
• Ius de non evocando (Article 17). This ancient right states that no one can against his will be kept from the competent court. It cannot be limited by law — but law decides which court is competent.

In addition to these classic rights the revision of 1983 introduced a number of social rights. The distinction between the two catagories is not strictly based on any legal doctrine and in fact the social right articles contain many freedom rights. The social rights are:

• Right to counsel (Article 18). Subarticle 1 contains a freedom right: anyone has the rigth to be legally assisted or represented in court or during administrative appeal. This right is absolute and cannot be limited by law. Nevertheless the law may impose qualification requirements on legal representatives so that e.g. only attorneys are allowed to represent. Subarticle 2 contains the right to legal aid for the destitute. The right can be limited by formal law; delegation is allowed. However doctrine holds that the State has an absolute duty to provide a minimum of legal aid.
• Labour rights (Article 19). Subarticle 1 imposes a duty on the government to ensure sufficient employment. This does not imply a right to be employed for the individual. Subarticle 2 demands that laws are made regarding the legal position of workers, including the protection of workers against accidents and workers' participation. Subarticle 3 contains a general freedom right to labour. This right can be limited by formal law; delegation is allowed. The right is limited to those of Dutch nationality, so in principle foreign nationals can be denied access to the labour market. The law in fact denies such access to illegal immigrants and asylum seekers.
• Common weal (Article 20). Subarticle 1 imposes a duty upon the government to ensure the subsistence of the population and an adequate distribution of wealth. Subarticle 2 demands that laws are made concerning the entitlements to social welfare. Delegation is allowed. Subarticle 3 contains a right to welfare for the destitute. The right can be limited by formal law; delegation is allowed. The government has a duty to make a law implementing the right. The right is limited to those Dutch nationals living in the Netherlands.
• Environmental rights (Article 21) This article imposes a duty on government to ensure the habitability of the land — including the general infrastructure and especially the vital sea-defences — and the protection and improvement of the environment. Doctrinal consensus holds that "improvement" implies that government is not allowed to make environmental laws much less strict.
• Health, housing, culture and recreation (Article 22). This is a wastebasket article combining rights that were too important to remain unmentioned, but too unimportant to warrant a separate article status. Subarticle 1 imposes a duty upon government to improve public health. Subarticle 2 does the same for living conditions and subarticle 3 for "cultural self-realisation" and recreational activities.

There is also a basic right present that doesn't easily fit within the division of classic and social rights, the:

• Right to education (Article 23). The constitutions of 1814 and 1815 expressed the principle of neutral state education; even in private schools giving a full curriculum religious education was forbidden. Parents wanting their children to be given some formal religious instruction had to send them to special bible classes in "Sunday Schools". In the revision of 1848 the freedom of education was first expressed. However this was a negative right: parents were at liberty to let their children be educated in denominational schools, but had to pay for this themselves, whereas state schools offered free education. As the frame of government grew ever more democratic, this arrangement proved untenable in the gradually becoming more "pilarised" Dutch society. The school system became the central battleground of political change: the School Wars between neutral elitist liberals and conservatives on the one and mass-oriented christian democrats and socialists on the other side. In 1889 a system of school funding for denominational schools was introduced; in the revision of 1917 this was formalised by a guarantee of full constitutional equality between public and "special" schools: the Pacification. Even in 1983 this issue remained so sensitive that government and parliament failed to reach consensus over a changed redaction. As a result Article 23 remained unchanged. It is therefore outside of the uniform terminology and systematics of the renewed constitution: some elements of Article 23 are absolute rights, others can be limited by law, for some this limitation can be delegated to lower administrative bodies — but it is imposible to understand from the article itself what is the situation for each element; this can only be learned from case law and doctrine. Absolute is the right to education itself (subarticle 2), the equality between public and special schools and the duty of the State to finance them all. The right to education is primarily a right to give education of any kind; the right to be educated is seen as derived; parents are free in the choice of schools. The right implies the right to found schools, the right to freely choose their underlying religion or philosophy of life and the right to organise them in accordance with such religion or philosophy. So not all "special" schools are denominational; some are e.g. anthroposophic; there are even Platonist schools. All have to be funded by government and with the strictest equality (subarticle 7); until recently law stated that this equality was nominal, meaning that if a municipality spent a certain sum per student in public schools, exactly the same sum had to be spent in its special schools. As a result the Netherlands have from 1917 played an important rôle in international educational developments. The right can be limited by formal law in that minimal quality requirements can be imposed (subarticle 5), both as regards the level of education and the standard of organisation. Some of this power is in fact delegated to lower bodies; one of the breaking-points in 1983 was the refusal of parliament to express this in the constitution. The duty of State to (equally) fund is limited to free compulsory education (presently until the age of sixteen); Subarticle 7 however states that law will specify the conditions under which non-compulsory education will be funded; unsurprisingly there is in fact in this field also strict equality. Subarticle 1 expresses the social right that education in general is an ongoing concern for the government; Subarticle 4 states that municipalities have the duty to provide for sufficient primary schools.

Chapter 2: Government

Dutch constitutional doctrine holds that the King and ministers together form the government and this indivisibly, so that the King in any of his public acts always acting under ministerial responsibility is not the Head of Government, but embodies it fully. The King is however head of state and so a special paragraph is dedicated to the King in this quality.

§1: King

Article 24 stipulates that there is kingship and that this kingship is held by William I of the Netherlands and his lawful sucessors. Articles 25 and 26 regulate the succession; 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 (Art. 39); its payment (Art. 40) and its organisation by the King (Art. 41).

§2: King and ministers

Article 42 states the main principles of Dutch government: that it is formed by King and ministers (Subarticle 1) and that "the King is inviolate; the ministers are responsible" (Subarticle 2). Before 1848 the inviolacy of the King was interpreted as a judicial one: he could never be tried in court for whatever reason. This is still so, but ministerial responsibility implies there is since the revision of 1848 primarily a political inviolacy. This means that the King cannot act in a public capacity without ministerial approval: externally the governmental policy is always represented by the responsible minister who, should he feel that the King's personal influence in it threatens to become too predominant, has to resign if he cannot prevent it; what happens internally between King and ministers is the Crown Secret, never to be divulged. What little of it nevertheless has come to the public attention, shows that the common conception that the kingship since the reign of William III of the Netherlands has in fact been almost fully ceremonial, is not supported by the facts. Often it is assumed that there is a "derived ministerial responsibility" for all members of the Royal House.

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. 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).

Chapter 3: States-General

§1: Organisation and composition

Article 50 states that there are States-General and that these represent the whole of the people of the Netherlands. Thus a clear distinction is made to the situation under the confederal Dutch Republic when the States-General represented the provinces. Doctrine holds that the article also entails that political parties have to give priority to the public interest, as opposed to the particular interests of their constituents. According to the parties themselves, this is indeed the case. Article 51 specifies that the States-General consist of a Second Chamber of 150 members and a First Chamber of 75 members — the constitution deliberately mentions the Second Chamber first to emphasize its political primate. Subarticle 4 mentions that both Chambers can gather in an indivisible United Assembly of 225 members, a joint session necessary to perform some acts, such as the appointment of a new King in absence of royal heirs. When in United Assembly the chairman of the First Chamber is chairman of the States-General (Article 62); the Second Chamber has tried to change this in the revision of 1983 but has twice been defeated by the First Chamber defending its privilege. Their duration is four years (Article 52). They are elected on basis of proportional representation (Article 53) and by secret vote (Subarticle 2). The Second Chamber is elected by all Dutchmen over the age of eighteen (Article 54), except those who have been disqualified by a court sentence as part of their punishment for a crime or those who have been declared incapable by court because of insanity (Subarticle 2). Formal law can limit the right to vote to resident nationals only but presently does not. The First Chamber is elected by the Provincial States (Article 55).

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 incompatabilities 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 England or Germany. The Chambers investigate the Letters of Credence of new members, in this case an 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 renumeration 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. In the 20th century such "conflict dissolution" became rare and 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.

§2: Procedures

Article 65 states that the parliamentary year is opened on the third Tuesday of September (Prinsjesdag) by the King holding the Speech from the Throne — very appropriate as Tuesday is the day of the Thing. The same day the minister of finance presents the yearly national budget. The sessions of the States-General are public (Article 66), but the session will be secret (In camera) when the Chamber in question so decides (Subarticle 3) which can be proposed by a tenth of the quorum or the chairman, on which proposal the doors are closed immediately for the vote (Subarticle 2). Normally there is a quorum of a half to start a session or to take any decision (Article 67). Decisions are taken by absolute majority (Subarticle 2) and without mandate (Subarticle 3) — a reference to the situation under the Republic when each delegate had to vote on instruction from the nobles or city councils he represented. On demand of a single member the vote must be oral and by roll call; no member may abstain.

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.

Law and administration

1. Laws and other regulations
2. Other provisions

Administration of justice

1. Lower government (provinces, municipalities, polders in charge of a polder board, and other public bodies)

Revision of the constitution

There used to be several additional articles with Roman numbering, however all except articles IX and XIX are now abrogated.

Statute of the Kingdom

The constitution of the Netherlands is only applicable to the territory in Europe. Each of the three countries within the Kingdom of the Netherlands (The Netherlands, The Netherlands Antilles and Aruba) has its own constitution. These constitutions are legally subjected to the Statute of the Kingdom of the Netherlands, which is the constitution of the entire Kingdom. The Statute however mainly describes the relations between the different parts of the Kingdom. In addition it stipulates that each country is obliged to promote human rights, listed in a special bill of rights, and decent governance. The relation between the three countries has elements of a confederation, as there is no central Parliament of the Kingdom, but also of a federation as there is a Government of the Realm, a Legislative of the Realm and a Supreme Court of the Realm. However these bodies are only fully formed on special occasions and by appointing special Antillian members to the normal Dutch government, parliament and Supreme Court. One of the members of the Dutch council of ministers is always also appointed a permanent "Minister of Antillian Affairs"; when he is acting in this capacity the council has the status of the Government of the Realm to treat minor issues. Though the Statute is in principle higher than the Dutch Constitution, there is no legal mechanism to enforce this. The Dutch Supreme Court has consistently ruled that it is forbidden for judges to test laws and administrative acts against the Statute. However the Government of the Realm can strike void any law of the Netherlands Antilles and Aruba for being incompatible with the Statute. This asymmetry and the fact that foreign affairs and the defence of the Kingdom are administered by the Dutch Government in its capacity of Government of the Realm show that the frame of government of the Kingdom has also elements of a decentralised unitary state. The Statute can only be changed with the consent of all countries within the Kingdom; the laws to this effect can be adopted with a simple absolute majority in each of their parliaments.

In 2007 Curaçao will become a separate country also; a constitution is in preparation.

Constitution versus other laws

Dutch judges may not test the validity of other laws against the constitution. As a consequence, the Netherlands does not have a Constitutional Court. The reasoning for this is that changes to the law should be made by politicians, since they have a mandate from the people.

International treaties on the other hand may overrule Dutch law, even the constitution, and judges are allowed in most cases to test laws against them.

Amending the constitution

To amend the constitution, the proposed changes must first be approved by both the Second and the First Chamber of the States-General with a common majority of 50% + one vote. Then parliament must be dissolved and general elections held. After that the proposed changes to the constitution are discussed a second time in both houses of parliament, this time needing a two-thirds majority to approve them. This is intended to give voters a say in the matter. However, the Second Chamber has never been dissolved and elections held specially for a constitutional change. Until 1996 however, the First Chamber was automatically dissolved, whenever elections were held for the Second Chamber and both Chambers had approved of a constitutional change. As the First Chamber is elected by the Provincial States and these themselves were not dissolved, invariably the First Chamber had the same composition before and after its re-election, so this ineffectual rule was abolished. Changes that involve the relations between the countries of the Kingdom must be proposed by a law formulated by the Government of the Realm.

Full text

• Dutch version on Wikisource
• http://www.oefre.unibe.ch/law/icl/nl__indx.html - 1989 and 1972 versions (English)