Reijer Passchier and Wim Voermans spoke on a conference to celebrate 200 year-old Dutch Constitution
On June 3rd last, International IDEA, Leiden University and the Ministry of Foreign Affairs organized a conference to celebrate 200 years of the Constitution of the Netherlands, with representatives attending from countries including Morocco, Egypt, Libya, Nepal, Liberia and Myanmar.
The central aim of the day was to look at what lessons the Dutch Constitution can offer countries that are currently in constitutional transition.
After an introduction by Professor Ginsburg of the University of Chicago, Professor Cliteur of Leiden University was the first to give a presentation about constitutional identity. First he described the fog surrounding the Dutch Constitution: the Constitution cannot be read without some knowledge of constitutional history. If we read between the lines, the Dutch Constitution is committed to three general ideas: democracy, the Rule of Law and individual human rights. Another sense of Dutch identity is that the Netherlands is a constitutional democracy. The point is that the Dutch are very pragmatic, therefore Professor Cliteur thinks it better if the Dutch Constitution demonstrated a clear commitment to the principles of democracy, the Rule of Law and human rights, because that would give a clear frame of reference about the values upon which our civilization is built.
The second workshop was presented by Professor De Lange of the Erasmus University Rotterdam. He talked about the constitutional review of primary legislation by the judiciary and its functional equivalent. The Netherlands has a very exceptional position compared to other jurisdictions, because constitutional review does not exist and it is unlikely that it will come into being anytime soon. Therefore he argues that the consideration of functional equivalents is increasingly necessary. A closer study of mechanisms of dialogue between courts and of the interpretation in conformity with treaty law and with the Constitution may provide a way forward.
Then Professor Voermans of Leiden University gave a presentation on the enigmatic nature of power sharing under the Dutch Constitution. The Dutch do not have a strong cultural constitutional tradition, but after 200 years the core constitutional values of the Rule of Law and democracy need no longer be amplified by the constitutional document. Actually, the more outspoken a Constitution is, the more conflict it may cause. The political system of the Netherlands has for a very long time been a consociational democracy, in which major internal religious and ethnic divisions have been bridged by different forms of power sharing, proportional representation and minority protection. An interesting lesson that can be learned from the Dutch Constitution is that it affects economic growth. A Constitution provides political stability which in turn lessens uncertainty, increases the probability of return on investment and as a result increases the possibility of economic growth.
The last presentation of the day was given by Reijer Passchier, PhD Candidate at Leiden University. He talked about adaptive capacity and constitutional rigidity. He described the paradox of constitutional change: written constitutions are supposed to provide a stable and permanent framework for government, but on the other hand constitutions need adaptive capacity in order to be able to endure as circumstances and demands change. To balance stability and flexibility many countries have formal amendment procedures, but in the Netherlands the formal constitutional amendment procedure has been in functional disuse for almost a century. This has triggered another form of amendment: silent constitutional change. He argued that it is remarkable that silent constitutional change has not fundamentally undermined the Dutch constitutional order. He concluded with two lessons that can be learned from the Dutch constitutional experience: first, do not make a written constitution too rigid, and second, make sure that, if employed, alternative means of change equally guarantee sufficient deliberation and the inclusion of minorities and small parties in the process of constitutional development.
After these interesting workshops we went to the ´Mauritshuis´ museum for dinner and a panel discussion on constitutional identity with prominent speakers from various disciplines.
(Written by Valérie Verschoor)