The Netherlands is working on a fundamental change to its Constitution: the introduction of “constitutional review” (constitutionele toetsing). This would allow judges to evaluate whether laws align with fundamental rights. Although this may seem like an internal Dutch matter, constitutional law expert Eva van Keeken warns that the proposed method of introduction could have serious consequences for the position of the Caribbean countries within the Kingdom.
The main proposal involves the (partial) removal of Article 120 of the Dutch Constitution. Currently, this article prohibits judges from testing laws against the Constitution. According to Van Keeken, this prohibition is an international exception, especially considering that in the Caribbean countries (Aruba, Curaçao, and Sint Maarten), this type of judicial review already partially exists.
The Legal Dispute: “Kingdom Law” vs. National Procedure
The central issue is not the content of the law itself, but the legal route the Dutch government intends to take. The Netherlands plans to pass this change via a Kingdom Law (Rijkswet).
Van Keeken argues that this is not the correct path. According to the expert, Article 120 is a national matter of the Netherlands and, based on the Charter (Statuut), should be changed via the regular Dutch constitutional procedure, accompanied by a treatment in the Council of Ministers of the Kingdom (Rijksministerraad). By opting for a Rijkswet, the Netherlands is following a heavier procedure that legally does not fit within the constitutional framework.
Risk to the Autonomy of Aruba and the Islands
Why is this relevant to the Caribbean region? Van Keeken explains that certain parts of the Dutch Constitution have an effect throughout the entire Kingdom. If the Netherlands is permitted to use a Rijkswet for matters that are constitutionally national, it creates a dangerous precedent.
The main risks Van Keeken points out are:
- Legal Precedent: It could open the door for the Netherlands to regulate more national matters via Kingdom Laws in the future.
- Hierarchy of Norms: Rules at the Kingdom level hold a higher position than the national laws of the individual countries.
- Loss of Clarity: The Charter is the instrument meant to differentiate between shared matters and national competencies. If this boundary becomes blurred, the balance of power within the Kingdom is at risk, and the autonomy of the countries could be affected.
Conclusion
What began as a technical change to give judges more power in the Netherlands has turned into a fundamental question of how competencies are shared within the Kingdom and who has the final word. Van Keeken concludes that the proposal should be presented via the regular national procedure and not as a Rijkswet, to ensure that the structure of the Charter and the autonomy of the Caribbean countries are respected.
