Constitutional law

Lecture II LLS

What is a State?

1. Defined territory

2. Permanent population 

3. Effective and Independent authority 

Types of state structures 

Unitary state, Federation, Confederation 

Unitary state

The central government holds supreme power

Federation

Power is shared between a central government and partially self governing regions or states

Confederation

Supremacy of individual states that unite for a common action. Marginal loss of sovereignty

Which article of the Dutch Constitution define the royal family

Art 24 C.- House of Orange-Nassau (Royal familiy)

Art 42 C.

Defines the Crown as the King and ministers, and establishes ministerial responsibility. Crown=King+Ministers

47 C.

Requires a countersignature from a minister for royal acts, making the minister politically responsible

Trias Politica 

Three branches:

Legislative

Executive

Judiciary

Legislative

Parliament + Government

Makes generally binding regulation (statutes) (81 C)

Executive 

Government

Makes decisions (for individuals) 

Implements acts/statutes 

97(2) + 131 C. 

Judiciary

Resolves disputes in civil criminal and administrative courts (Art 112-113 C.)

Ch 1

Fundamental rights

Ch 2

Government

Ch 3 

The States General 

Ch 4

Council of State, Court of Audit, National Ombudsman, permanent advisory bodies

Ch 5

Legislation and Administration

Ch 6 

The Administration of Justice 

Ch 7

Provinces, Municipalities, Water boards, and other public bodies

Ch 8

Revision of the Constitution

Legality principle

Public authorities must act based on law

Negative actions (punishment) always need legal basis (16 C)

Positive actions (providing service) increasingly require legal basis (ex. Fluoridation case)

Legal powers come from

Attribution- original power granted by law (81, 89, 127, 133)

Delegation- transfer of power to lower bodies (ministerial regulations)

Fundamental rights: Classic rights

Protect citizens from the state (freedom of assembly), enforceable in court

Fundamental rights: Social rights

Require state to act (right to work)- not always enforceable

Restrictions: Absolute rights:

Cannot be limited (5 C. petition, 3 ECHR torture)

Restrictions: Relative rights

Can be limited with legal basis and legit aim (Art 6. C religion)

Judicial review

Judges are independent. Appointed for life 117 C

Hierarchy of norms

Treaties

Charter of the Kingdom

Constitution

Acts of Parliament

Royal Decrees

Ministerial Regulations- Bylaws

120 C

Courts cannot review acts of parliament for constitutionality 

94 C

Treaties can override national law (backdoor review method)

50 C

States general represents all dutch citizens

68 C

Right of interpellation (Parliament can question ministers)

105 C 

Parliament approves and amends the budget

42 C

Ministers are accountable to Parliament, not the king

Rule of confidence

Ministers must retain Parliament’s trust to stay in office

Parliament (States General) 

Second chamber (House of representatives) 150 members, directly elected 

First chamber (Senate) 75 members, indirect elections

Organic laws

Laws that are prescribed by the Constitution

Vertical effect

Rights apply to the citizens and the state

Horizontal effect 

Rights apply between the citizens themselves (ex. anti discrimination in private employment) 

what is constitutional law? 

the body of law that defines the structure of the state, the powers of its institutions, and the fundamental rights of citizens 

Formal law 

Created by the formal legislator (King + Parliament) 81 C. 

Material law:

Any rule with general binding force, regardless of who made it

124 C

Provinces and municipalities may issue regulations within their competence

Art 6. ECHR

Right to a fair trial

Art 10. 

Freedom of expression 

Raad van State

Advises the government and Parliament on proposed legislation and governance

Must be consulted before a bill is submitted to Parliament

73 C. Government must seek advice from Council of State 

75 Handles appeals in admin law (disputes with government decisions) 

Art 7 ECHR 

No punishment without law 

Art 1 PC

No punishment without law

Royal Decree review

Courts can review royal decrees and other regulations for compatibility with higher law (94 C.)