Why Fundamental Rights Must Be More Than Political Promises

 

Article 120 of the Dutch Constitution still prohibits courts from reviewing Acts of Parliament and treaties for constitutionality. On 26 June 2026, the government announced that it had sent a constitutional amendment proposal to the Council of State that would permit judicial review of Acts of Parliament against specified classical constitutional rights. The proposal had not altered the Constitution at the stated date. The analysis must therefore distinguish current law, the pending official proposal, existing treaty and EU-law review, and broader constitutional recommendations.

Preventive scrutiny by government, parliament and advisory bodies remains important, but political self-control is insufficient⁶⁸⁰. The effects of complex legislation, automated decision-making and interconnected regulations are not always predictable. Constitutional concerns may also receive too little attention because of coalition agreements, political urgency or limited parliamentary capacity. Minorities, future generations and poorly organized groups are especially vulnerable because they may lack the influence needed to ensure that their interests are adequately represented before legislation is adopted.

The prohibition on constitutional review⁶⁸¹ also creates an inconsistent system. Courts may examine administrative decisions and subordinate legislation against the Constitution, and they may disregard Acts of Parliament that conflict with directly applicable international or European law. Yet they cannot apply comparable or stronger guarantees contained in the Dutch Constitution itself. Consequently, national constitutional rights risk becoming political declarations while international norms provide the more effective legal protection⁶⁸².

This inconsistency becomes more serious as the Constitution acquires stronger guarantees concerning dignity, substantive equality, proper administration, social security, digital autonomy and ecological protection. Such rights offer limited protection if Parliament can adopt conflicting legislation without independent judicial correction. Constitutional review is therefore necessary to connect constitutional promises with practical enforceability and effective remedies.

Its purpose is not to transfer general political authority from Parliament to the judiciary. Elected institutions should remain primarily responsible for setting policy, allocating resources and balancing competing interests. Courts should instead determine whether legislation remains within the fundamental boundaries that democratic institutions have accepted for themselves.

Constitutional review would add an independent corrective mechanism when political and legislative safeguards fail. The remaining question is institutional design. A workable system must specify which enactments and rights are reviewable, which courts may decide constitutional questions, how scrutiny varies across rights, what remedies are available, how precedent is

coordinated, and how Parliament responds to structural defects⁶⁸³. Those choices determine whether review becomes an accessible corrective institution or merely an additional abstract promise.

This function is particularly important for protecting human dignity and minorities. Individuals should not be reduced by legislation to administrative categories, risk profiles, cost factors or instruments of collective policy. People directly affected by a law should be able to obtain an independent and reasoned judgment on whether their freedom, equality, subsistence or access to justice has been unjustifiably restricted. Courts could also examine whether apparently neutral legislation produces serious and foreseeable disadvantages for groups with limited political influence.

Review should take account of the different character of constitutional rights and distinguish at least three situations ⁶⁸⁴. Restrictions on non-derogable rights, political participation, equal citizenship, access to justice, and the essential content of rights require the strongest scrutiny. Ordinary limitations of classical rights require legality, a legitimate aim, necessity, proportionality, and adequate reasons. Social and ecological duties call primarily for protection of an immediate minimum, non-discrimination, reasoned progress, and scrutiny of serious regression or manifest institutional failure⁶⁸⁵. The applicable test should be stated openly so that judicial restraint does not become unreviewable intuition⁶⁸⁶.

For citizens, the principal benefit would be a national avenue of protection when the law itself causes the violation. Courts could provide immediate protection in individual cases while broader structural defects are returned to the legislature for democratic repair. Remedies would need to be adapted to the circumstances: an urgent violation may require immediate relief, whereas invalidating a complex social or financial system at once could create legal uncertainty and harm third parties. Effective protection therefore requires remedies that correct the violation while preserving stability wherever possible.

Remedies should follow a graduated ladder⁶⁸⁷. A court may interpret legislation consistently with the Constitution where the text permits; disapply a rule in the individual case; issue interim protection; declare an incompatibility and give Parliament a defined period to repair it; suspend the effect of invalidation to prevent a legal vacuum; or, for a clear and urgent violation, set the rule aside immediately. The judgment should explain why the selected remedy protects the claimant, respects third-party reliance, and preserves a realistic path for democratic repair.

The reform would also improve legislation before cases reach court. Government and Parliament would have stronger incentives to investigate constitutional effects, consider less harmful alternatives and explain how proposed measures affect vulnerable groups. Legislation involving data processing or automated decisions would require closer examination of privacy, discrimination, human oversight and opportunities for correction. Constitutional rights would consequently become design principles for legislation rather than arguments raised only after damage has occurred.

Constitutional review would create a continuing dialogue between institutions. Parliament would retain responsibility for constitutionally careful legislation. Courts would identify violations when preventive safeguards prove inadequate. The legislature would then normally decide how to repair the broader problem within the constitutional limits established by the judgment.

Responsibility for the Constitution would thus be shared instead of belonging exclusively to either judges or political majorities. When a judgment identifies a structural defect, the responsible minister should publish a response within a fixed period, identify comparable provisions and affected groups, and state whether interim protection is required. Parliament should then debate the proposed repair and explain any departure from the court’s reasoning. This duty would not make judicial policy preferences binding; it would ensure that constitutional findings produce an identifiable and reviewable democratic response.

The reform nevertheless carries risks. Open constitutional principles could increase litigation and give judges too much influence over political or budgetary choices. Different courts might interpret rights inconsistently, while politically sensitive appointments could threaten confidence in judicial neutrality⁶⁸⁸. New constitutional procedures could also increase workloads and delay ordinary cases. These concerns require coherent jurisprudence, transparent appointments, differentiated scrutiny and respect for democratic policy space. There are three coordination models: decentralized review by all competent courts with Supreme Court coordination; referral of constitutional questions to one apex court; or a specialized constitutional court. Constitutional review is the required capacity; one particular court architecture is not.

Accessibility is equally important. Constitutional protection must not become an instrument used mainly by corporations and well-funded organizations. Citizens with limited resources need affordable procedures and sufficiently funded specialist legal assistance. Courts require training, research capacity and stable financing to manage complex constitutional questions without weakening ordinary justice. Introducing new judicial responsibilities without additional resources would merely replace one form of inadequate protection with another.

The transition would also need to protect legal certainty. Existing legislation should become reviewable, but not automatically invalid. Final judgments and established legal relationships should generally remain stable, while exceptional remedies may be necessary for the gravest violations. A systematic review of high-risk legislation could identify problems in advance and reduce institutional disruption after the reform takes effect⁶⁸⁹.

 

Constitutional review should be judged by whether it supplies accessible remedies, coherent doctrine, timely decisions, protection for poorly resourced claimants, and demonstrable legislative correction without displacing ordinary political choice. Before entry into force, the Netherlands would need transitional rules, judicial training, legal-aid⁶⁹⁰ capacity, a method for coordinating precedent, and a public review of existing high-risk legislation. The reform succeeds only if constitutional rights become practically enforceable while responsibility for general policy remains democratically recognizable.

 

 

Would you like to explore how a relational understanding of humanity can transform democracy, law, the economy, and public institutions? Click the link below to read the full book, Becoming Human Together, and discover a new framework for building a more humane, democratic, and correctable society within ecological limits.

 https://www.researchgate.net/publication/413458836_Becoming_Human_Together_Rethinking_Democracy_Power_and_Institutions_for_a_Complex_and_Changing_World

 

 

680 Jan van Zyl Smit, The Variable Constitution: A Study of Constitutional Review in the Netherlands and the United Kingdom (Oxford: Hart, 2025); Janet L. Hiebert, ‘New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?’ Texas Law Review 82 (2004): 1963–1987.

681 Constitution of the Kingdom of the Netherlands, arts. 93–94 and 120, official English version, https://www.government.nl/documents/2019/02/28/the-constitution-of-the-kingdom-of-the-netherlands. Article 120 bars constitutional review of Acts of Parliament and treaties; Articles 93–94 govern directly effective treaty provisions. 682 J. C. A. de Poorter, ‘Constitutional Review in the Netherlands: A Joint Responsibility,’ Utrecht Law Review 9, no. 2 (2013): 55–75, https://doi.org/10.18352/ulr.229; Gerhard van der Schyff, Judicial Review of Legislation: A Comparative Study of the United Kingdom, the Netherlands and South Africa (Dordrecht: Springer, 2010).

683 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000); Victor Ferreres Comella, Constitutional Courts and Democratic Values (New Haven, CT: Yale University Press, 2009).

684 European Commission for Democracy through Law (Venice Commission), Rule of Law Checklist, 2nd ed., CDL-AD(2025)002, especially the sections on constitutional justice and judicial review, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2025)002-e.

685 UN Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations, E/1991/23 (1990), paras. 9–12; General Comment No. 9: The Domestic Application of the Covenant, E/C.12/1998/24 (1998).

686 Robert Alexy, A Theory of Constitutional Rights, trans. Julian Rivers (Oxford: Oxford University Press, 2002); Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge: Cambridge University Press, 2012); Jeff King, Judging Social Rights (Cambridge: Cambridge University Press, 2012).

687 Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (Oxford: Oxford University Press, 2023); Kent Roach, Constitutional Remedies in Canada, 2nd ed. (Toronto: Canada Law Book, 2013); Mark Tushnet, Weak Courts, Strong Rights (Princeton, NJ: Princeton University Press, 2008).

688 Council of Europe, Recommendation CM/Rec(2010)12 on Judges: Independence, Efficiency and Responsibilities; Consultative Council of European Judges, Magna Carta of Judges (2010).

689 European Commission for Democracy through Law, Rule of Law Checklist, 2nd ed.; European Court of Human Rights, Marckx v. Belgium, App. No. 6833/74, Judgment of 13 June 1979, on legal certainty and the temporal effects of judgments.

690 European Convention on Human Rights, arts. 6 and 13; Charter of Fundamental Rights of the European Union, art. 47; European Court of Human Rights, Airey v. Ireland, App. No. 6289/73, Judgment of 9 October 1979.