Governance against law: the strange case of the Dutch constitution

It is generally considered to be one of the most important functions of a written constitution to lay down the law of the land: at least the most fundamental norms shaping and defining the body politic are to be found in the constitution. This document, usually also of a hierarchically superior character vis-à-vis other norms, is broadly speaking also the norm creating the state organs and their political and legal powers; this special and fundamental character is usually reflected by the procedure of amendment, which usually involves qualified majorities, plural readings, plebiscitary elements or a combination of these.

The Constitution of the Netherlands is no exception to this rule. It came into force in March 1814 and is therefore, apart from the U.S. Constitution, the eldest Constitution in the world still in force. It is no longer the highest constitutional document of the Kingdom: since 29 December 1954, the Statute of the Kingdom is the highest source of (internal) law for the Kingdom. The Statute, regulating the relationship between the Netherlands proper and the three autonomous countries of Aruba, Curaçao and St. Maarten in the Caribbean Sea, is not a ‘full’ constitution, however. Most of the constitutional law of the Kingdom as a whole is still to be found in the Constitution itself: the Statute enhances and modifies the Constitution to regulate the constitutional autonomy of the three Caribbean countries in the post-colonial Kingdom. The Constitution of 1814 as amended therefore remains the prime document in Dutch constitutional law. Its central position is also clearly illustrated by the extremely ponderous amendment procedure laid down in chapter eight. The Constitution of the Kingdom can only be amended through an Act of the legislator (King and States-General together) passed in the ordinary manner, followed by an obligatory dissolution of the Second Chamber (the directly elected Chamber of the States-General) and new elections. The newly elected Second Camber and the First Chamber then have to pass the amendment a second time, by a two thirds majority in both Chambers. The Constitution is the prime source of constitutional law in the Kingdom of the Netherlands and likely to remain so.

Perhaps surprising then, is the fact that this very entrenched constitution, laying down the fundamental rules of the Dutch body politic, is corrected, added to and sometimes even overruled by unwritten norms and practices. A classical historical example of this in Dutch constitutional law is the clause stipulating that ministers were appointed and dismissed by the King ‘according to his personal liking’ (naar welgevallen), that remained part of the Constitution up to 1983. Since 1868, however, the Kingdom of the Netherlands has been governed through a parliamentary system, in which no minister can remain in office without the support of the majority of parliament. This norm, in Dutch called the vertrouwensregel (rule of confidence) has always remained unwritten. Between 1868 en 1983, an explicit clause in the constitution itself was made invalid by an unwritten norm or practice, which is (apparently) of a higher hierarchical status. There are other examples, which will be touched upon in my presentation. From the point of view of most jurisdictions in the possession of a written constitution, this is a very interesting phenomenon. For how is it possible that written, constitutional norms can wholly or partially lose their validity because of other, unwritten norms or practices, when they form part of a document of such an extremely entrenched nature? Is this not a complete turnover of normal legal hierarchy and procedure? And is this not, in a way, an example of governance against (written, constitutional) law?