Rule of law interview

The Netherlands has neglected the Constitution, says NSC member Sandra Palmen

The Dutch don't pay enough attention to their fundamental rights, says NSC MP Sandra Palmen. The House of Representatives will discuss the establishment of a constitutional court on Monday.

Janne Chaudron September 8, 2024, 16:00

At first glance, you wouldn't tell immediately, because she doesn't often claim the stage, and yet Sandra Palmen is Pieter Omtzigt's substantively important sparring partner. Within the New Social Contract, she is the trigger of an important dossier: constitutional testing.

A technical topic, but one of the main reasons for NSC to participate in this cabinet. “We both really enjoy working on the content. We are talking about that a lot,” says Palmen.

The ultimate goal: the establishment of a constitutional court, a special court that only tests against the Constitution. Such a court takes a long time, because it requires a constitutional amendment. So this reign will not be there yet, but the first steps to establish such a court will be taken on Monday.

The previous cabinet was wary

Then the House of Representatives talks about a 42-page note by Pieter Omtzigt. Here, he makes proposals to improve the testing of the Constitution. The bill dates back to 2022, but the previous cabinet was wary of setting up a constitutional court.

In the meantime, political relations have changed. In the main line agreement between the PVV, VVD, NSC and BBB, it was agreed that the government will work on the arrival of a constitutional court. And the administrators responsible for this, Secretary of State for Legal Protection Teun Struycken and Minister of Internal Affairs Judith Uitermark, are both in the cabinet on behalf of NSC.

The political momentum is in favor of NSC, Palmen also acknowledges. “That is also desperately needed, because compared to the rest of the world, we are hopelessly behind. The Constitution is the highest law in the Netherlands and it also has the strongest force in terms of content. But that Constitution is currently in an ivory tower. That's where she needs to get out. It's such an important, fundamental law, but it's not being tested.”

Judges in the Netherlands are not even allowed to test against the Constitution, which is prohibited. They comply with regular laws and international and European treaties. The formal legislative power, including the review of the Constitution, lies with the House of Representatives and the Senate.

The fact that the so-called ban on testing should come to an end now seems to be a widely supported view in politics. Nevertheless, NSC also wants to set up a constitutional court.

A constitutional court can become too political

Not all lawyers like that, because testing laws against the Constitution also has a political character. Moreover, they warn, you run the risk of such a constitutional court becoming too political. Look at the US, look at Poland, where the appointment of judges is politically driven.

Palmen dismisses that criticism. “We are there ourselves,” she says. “We don't want to be influenced by political parties.”

Why such a court is important? Palmen, known as a whistleblower in the benefits scandal, can best illustrate this with an example. As a judge, she herself was once involved in a case where a man with benefits was suspected of working undeclared. “The authorities wanted to place a kind of tracker under his car to track him. A disproportionate invasion of his privacy.

“It is a constitutional issue. This man could have raised that immediately in such a court. And if such a court rules in its favor, the government can no longer appeal. If you now want to prove that your fundamental rights are being violated, you will be litigating much longer. Up to and including the highest European judge. That takes a lot of time.”

Ten years of litigation

The man with the tracker under his car has been ruled in favour by the highest European court after ten years of litigation. “That could have been done much earlier.”

Fundamental rights, says Palmen, are often not recognized by people. “You don't think about it.” According to the NSC MP, this awareness alone is necessary. “In that regard, a constitutional court also has great symbolic value.”

In addition to establishing the court, NSC is trying to embed fundamental rights in Dutch politics in more areas. An Omtzigt motion ultimately led to the establishment of a Parliamentary Committee to review laws against the Constitution from now on. Palmen is in it.

Together with other committee members, she is currently doing preparatory work. She hopes to be able to officially start after September. The committee will play an advisory role and will challenge new laws to the bar of constitutionality.

Asylum Crisis Act

The committee comes at a time when the rule of law is under pressure. Lawyers warn that some of the intentions of the main line agreement are in conflict with European and international treaties. The Asylum Crisis Act, which contains crisis measures to temporarily reduce the influx of asylum, is one example.

The question is whether the Netherlands can declare such a crisis situation, as other European member states host more refugees. For now, Palmen is silent about a possible asylum crisis, but confirms that the committee will also review this law: “We are looking at the broader perspective. Everything must fit into international law and, if necessary, we also consult the expertise of others.”

She repeats the lessons of the benefits scandal. “Suppose there had been an opinion back then, if it was already considered that fundamental rights had been violated; the errors would have been recognized much more quickly.”

Also read:

Omtzigt's first success: a committee will review laws against the Constitution

The Constitution will play a prominent role in the political debate. Pieter Omtzigt is working towards the establishment of a constitutional court. But lawyers warn that this does not solve all problems.