Reforming judicial review with respect for democracy
Judicial review of the Constitution has long been a topic of discussion. How do democracy and the rule of law relate to each other?
The potential agonistic relationship between democracy and the rule of law could lead to de-politicising important societal questions. To prevent this, we should strengthen the dialogue between the legislature and the judiciary.
Last summer, the Dutch Government launched its plans to reform the judicial review system in the Netherlands. A letter sent to Parliament (Hoofdlijnenbrief constitutionele toetsing) outlining the plans, states that democracy and the rule of law are intrinsically connected. However, no attention is paid to the nature of this relationship. It seems that the Government is implicitly assuming that protecting the ‘rechtsstaat’ means protecting democracy. This shows that it believes that constitutional democracy is a conjugated concept, instead of a concept that constitutes two different pillars: the rule of law (rechtsstaat) and democracy. Two pillars that could have opposing interests. Ignoring this potential agonistic relationship between the rule of law and democracy can be damaging. Luckily, the Government also addresses a solution for this problem: facilitating a dialogue between the legislature and courts. The concept of the rule of law embraces both the formal requirements of the rule by law and the more substantial requirements such as respect for fundamental human rights. Democracy is defined more narrowly, as the democratic decision-making process. With the term constitutional democracy, a State is meant that embraces both the idea of democracy and the rule of law.
The new Government proposal on constitutional review
Currently, Article 120 of the Dutch Constitution prevents courts from reviewing Acts of Parliament against the Constitution. In international literature, the Netherlands is often named as one of the few countries with a functioning constitutional democracy without constitutional review; something which the Government itself also said could create tension with the requirements of the rule of law. The rationale behind Article 120 is that it was up to the legislature to decide how to interpret the Constitution, leaving the safeguarding of constitutional rights with the houses of parliament. In legal practice, Article 120 has broadly influenced other parts of the law. Article 120 has been used to show that the Netherlands does not have a tradition of constitutional review and that courts ought to have a more restrained role.
The debate about Article 120 of the Dutch Constitution resurfaces every now and then. Multiple amendments have been put up for voting, both to abolish Article 120 and to strengthen it. Until now, none of these proposals has led to actual change, but it seems that the tide has turned and that the current political landscape provides fertile ground for the abolishment of Article 120. One of the reasons is the childcare benefits scandal (Toeslagenaffaire), from which it has been said that it would not have happened if judicial review (based on the Constitution) had been possible.
The Government’s proposal foresees in a practice of strong judicial review of the so-called ‘freedom rights’ of the Constitution, by courts at all levels of the judicial system. This review will take place after legislation has been passed. Through these changes, the Government aims to achieve more legal protection for citizens against governmental authorities with regard to the most fundamental human rights. Moreover, the rule of law is strengthened through both constitutional review and through raising awareness of the existence and importance of the Constitution. However, we must be critical of whether the proposal is capable of reaching its goals.
Tension between democracy and the rule of law
A fundamental point of critique is that the Government seems to assume that a constitutional democratic State is a coherent concept without internal tensions. The Government argues that improving the rule of law will lead to improving democracy. Political scientist Chantal Mouffe argues that the concept of constitutional democracy is based on an internal tension that cannot be rationally resolved. Sometimes democracy and the rule of law have opposite demands in which a compromise must be made. This can either take the form of Parliament wanting to pass a law that breaches a fundamental right or passing a law that breaches the more formal and procedural requirements of the rule of law. An example of the first is the life-long sentence in the Netherlands, which has been labelled an ‘inhumane and degrading treatment or punishment’. So both democracy and the rule of law can impose restrictions or lead to breaches of the other principle.
Denying the antagonist relationship between democracy and the rule of law will lead to de-politicising the current consensus. Politicians could argue that we cannot take certain decisions because it would go against our constitutional democracy. However, since a constitutional democracy is not a coherent concept, choices have been made on how to fuse both democracy and the rule of law together, and these choices should be up for debate. In difficult situations, we should not hide behind the so-called requirements or boundaries of constitutional democracy. Rather, we should confront the fact that taking certain decisions would require reshaping the current balance between democracy and the rule of law.
Scrutinising the parliamentary documents, it seems that the Government, shaken by the child benefits affair, is rushing into protecting and strengthening the rule of law without thinking about the possible democratic consequences. Even though, just a few years earlier, there was much critique on the courts in the Urgenda and Shell cases for placing boundaries on the political power of Parliament in the name of the rule of law. These cases have also been celebrated, and there much to say in favour of a stronger practice of judicial review. However, we must realise that this means changing the current balance between democracy and the rule of law that might lead to a smaller role for democracy on certain topics.
The potential solution
Luckily, the Government also addressed a potential solution for internalising the potential compromise between democracy and the rule of law: the dialogue between the courts and the legislature. The idea of the dialogue is that the legislature and the judiciary play ‘ping pong’ over the interpretation and balancing of fundamental human rights. This has two advantages. First, it offers room for the legislature to explain and justify the compromise that has been made, bringing it back into the democratic sphere. Secondly, it allows for the legislature to provide more guidance to the judiciary in interpreting our national Constitution and in doing so democratising judicial review. Such a dialogue can be realised by either loosening up the changing procedure of the Constitution or softening the form of judicial review. A somewhat more restrained version of judicial review is the ‘British system’, where courts can merely issue declarations of non-compatibility. In practice, it has shown that the UK Parliament has almost always followed up on these declarations and changed the law that led to the declaration.
The Netherlands is one of the last modern democracies that is taking the step towards the judicial review of the national Constitution. The proposal is therefore not unexpected. However, the Government should pay more attention to the potential antagonist relationship between the rule of law and democracy and the possible consequences. Introducing a balanced dialogue into our judicial system could help to embrace the tension between the rule of law and democracy, preventing our system from placing certain values and topics outside the democratic realm while also strengthening the rule of law.