OSCE/ODIHR database of legal reviews and legislation

The Netherlands is a hereditary constitutional monarchy, with a parliamentary form of government based on the principles of ministerial responsibility, with the Monarch as the Head of State. The Kingdom of the Netherlands dates from 1814. The Constitution of the Netherlands (hereinafter "NC") was adopted in 1814 and was last amended on 7 July 2002. The Kingdom consists of a federation of the Netherlands (Holland), the Netherlands Antilles and Aruba, with the latter two found in the Caribbean (briefly discussed below). The national government is made up of three main institutions; the Monarch, the Council of Ministers and the Staten Generaal (the Parliament). For historical reasons, The Hague is the seat of Government, but Amsterdam is the capital. The NC also establishes 12 provinces (first level administrative divisions in the European part of the Kingdom), having the right to be governed by a locally elected provincial council and a provincial executive elected by the members of the provincial council. Each such province is formally headed by a Commissioner of the Queen, appointed by the Crown (definition of "Crown provided below).

The Head of State of the Netherlands is the monarch. The monarchy is based on the Constitution, certain Acts of Parliament and unwritten constitutional law (royal prerogatives). The Dutch Constitution refers to the monarch as ‘the King’ irrespective of whether the monarch is a man or woman at any particular time. Currently, the monarch and Head of State is HM Queen Beatrix. The function of the Queen is largely ceremonial; however, she does have a degree of influence deriving from the tradition of respect towards the House of Orange. The Queen appoints the Prime Minister and the Ministers (by Royal Decree- Article 43 NC).

The Council of Ministers (Cabinet) appointed by the Queen and led by the Prime Minister exercises executive power. The Council (or Cabinet) is required to have majority support in Parliament. However, the Cabinet together with the Staten-Generaal makes up the legislature. The Cabinet is the forum for discussions and decisions on overall government policy and it ensures policy coherence. The Council of Ministers and the Monarch together constitute the Crown. Most Ministers are also the Heads of government ministries, although there are some Ministers who do not have portfolios. In contrast to the British system, Dutch Ministers cannot concurrently be Members of Parliament. Ministers are responsible to the Parliament (Staten Generaal). The Prime Minister presides over Cabinet meetings and he is also a member of the European Council (EU) and accountable for his actions connected therewith, to the Dutch Parliament. There are no laws or regulations specifying the procedure for the formation of government, and thus it differs each time. However there are some recurring features, namely, the outgoing government tenders its resignation, informateurs and formateurs are appointed and report back to the Queen, a coalition agreement is drawn up, and a new government is appointed.

Articles 73 through 76 of the NC establish a government advisory body called the Council of State, which consists of members of the royal family and Crown appointed members generally having political, commercial, diplomatic or military experience. It is the highest independent advisory body to the government. The Cabinet must consult the Council of State on draft legislation before it is submitted to Parliament.

A bicameral Parliament called the Staten Generaal and the Government together exercise legislative authority. The Second Chamber Tweede Kamer der Staten Generaal (otherwise, the House of Representatives"), consists of 150 Members (Article 51(2) NC) elected directly on the basis of a nationwide system of proportional representation (Article 53(1) NC). The system is such that members represent the entire State, rather than individual districts, and are normally elected based on party affiliation and not personal merits. There is no threshold for small party representation. The electoral system is very open and proportional and a number of small political parties exist. This results in a number of political parties being represented in Parliament and thus invoking the need for coalition building. One of the main duties of the Second Chamber is to control the government. The second major task of the Second Chamber is to enact legislation and amend legislation already in force, together with the Senate and the Government. In addition to the right of legislative initiative and amendment, the Second Chamber is vested with the power to; approve the budget; question the Government; interpellation ; submit motions (as to disagreement with government policy); and, institute inquiries.

The First Chamber– Eerst Kamer der Staten Generaal (otherwise, "the Senate") consists of 75 Members (Article 51(3) NC) elected by the 12 provincial legislatures. Generally, the First Chamber only meets once a week. Members of the First Chamber usually engage in other full-time employment. The term of the First Chamber may be amended accordingly if the duration of the provincial councils is altered by an Act of Parliament (Article 52 NC). The main duties of the Senate are in the legislative field, however, they also take part in scrutinizing the actions of Government. The Senate only has authority to review draft legislation; it does not have the right of amendment (as held by the Second Chamber). In short, the First Chamber may only reject or accept legislation. However, in practice the First Chamber has a more significant role in shaping legislation, that is, the debates on bills in the First Chamber contribute to the future interpretation of the law. Although the role of the Senate (First Chamber) has been questioned over time, their revision of legislation following it being passed by the Second Chamber proves useful in ensuring that laws are of sufficient quality, do not conflict with the Constitution and international treaties or jeopardize the rights of citizens. The Members of the First Chamber are entitled to submit written questions to the Government (also when unrelated to a bill), in the same way as members of the Second Chamber. However, since the role of scrutiny of Government is reserved mostly for the Second Chamber, the Senate does not exercise this right frequently.

Members to both Chambers are elected for four year terms. Each Chamber elects a President, and when both Chamber meet, the President of the First Chamber presides (Article 62 NC) When meeting at a joint session, the two chambers are considered a single entity.

The Dutch legislative process is encompassed in Chapter 5 of the NC. Pursuant to Article 82 (1) of the NC, bills may only be presented by or on behalf of the King or by the Second Chamber of Parliament. Although the Second Chamber has been vested by the Constitution with the power to initiate legislation and subsequently defend it in the House and the Senate, and is increasingly inclined to exercise this power, the Chamber is nevertheless more likely to request the Government to submit a particular bill. The Government will send every bill to the Council of State. The Council, in particular conducts review of the proposed legislation in light of its legal and constitutional soundness. It is regular practice for the Government to amend a bill upon the recommendation of the Council of State, although it is not under any obligation to do so. The First Chamber does not have the authority to initiate or amend legislation. However, all bills passed by the Second Chamber must receive approval of the First Chamber before they become laws.

The bill is then passed to the Queen and together with her royal message and signature and the recommendation of the Council of State, it is presented to the Second Chamber. An explanatory memorandum drafted by the Minister (responsible for the Ministry initiating the legislation) containing detailed information on the purpose and contents of the bill, inclusive of notes pertaining to particular sections, is also attached to the draft. Depending on the topic dealt with by the proposed legislation it is subjected to the additional review of one of the House of Representatives’ standing committees. Once the committee has conducted its review, the President of the House of Representatives will propose for the bill to be placed on the plenary agenda. This process of review may include seeking the opinion of government advisory bodies (such as, the Central Planning Office or the Central Bureau of Statistics) or otherwise, external expertise. In their debate on the bill the Second Chamber may exercise their right to introduce amendments. If accepted, the bill will then be passed to the First Chamber (Senate) where it may be either accepted or rejected. The Senate has the choice of voting in three ways, that is, by parliamentary party, by way of individual Member voting or in writing. Once passed by the Senate the bill will be returned to the Queen for her signature. The responsible Minister and the Minister of Justice will also both sign the bill. Subsequent to this signature round, the legislation will be published in the Official Journal (bulletin of acts, orders and decrees) and thus become law.

The two other states within the Kingdom of the Netherlands, viz, the Netherlands Antilles and Aruba are both entities having two levels of government: a central (federal) government and a territorial (state) government. The central government consists of three bodies namely a Governor General, who represents the Queen of Holland, an appointed Council of Ministers, and a parliament (22 members in Antilles, 21 in Aruba), which is elected every four years. The central government is responsible for state affairs that include matters of the police, communications, taxes, public health, education, establishment of enterprises, and labour legislation. The local government on each island responsible for their infrastructure. Defense and foreign affairs fall under the responsibility of the Dutch Government. Judicial power lies with a Common Court of Justice of Aruba and the Antilles Netherlands and the Supreme Court of Justice in the Netherlands

Judicial power is vested an independent judiciary. The court system is composed of, 19 District Courts (which include sub-district judges), 5 Courts of Appeal and the Supreme Court of the Netherlands (Hoge Raad). All of the aforementioned courts administer both civil and criminal justice. Summary cases (as defined by Act of Parliament) are referred to the Sub-districts judges. However, more complex and all criminal cases go straight to the District Court. Judgements from Sub-district judges are appealed to the Court of Appeal and those handed down in a District Court may also be brought before the Court of Appeal (which hears appeals from a designated number of District Courts). The highest court for both civil and criminal cases is the Supreme Court of the Netherlands. The Supreme Court is made up of the President, six Vice-Presidents and 35 justices. It has the jurisdiction to quash judgements of lower courts, but it does not conduct an examination of the facts or merits of the case. The Supreme Court solely conducts a review of the case in order to assess whether the law has been applied correctly; therefore, its main duty consists in the ensuring of the accurate and uniform application of Dutch law. The Supreme Court does not have the competence to repeal and Act of Parliament on the grounds of its violation of the NC (Article 120 NC), however, it may refuse to apply an Act of Parliament conflicting with obligations under an international treaty. The Supreme Court also has the competence to put on trial present and former members of Parliament, Ministers, and State Secretaries (Article 119 NC). The NC also fails to provide for trial by jury and prohibits the imposition of the death penalty (Article 114 NC)

The Netherlands has adopted a civil law system, which incorporates French penal theory. Although as previously stated, the NC does not permit judicial review of Acts of the Staten Generaal (parliament), judgements of the Supreme Court nevertheless constitute an important source of Dutch law. The Constitution may be revised and amended by Act of Parliament, in the manner prescribed in Chapter 8 of the NC. The Netherlands applies the doctrine of monism, meaning that national and international law together form a single legal order. The Constitution was amended in 1953 to give supremacy to international law and again in 1956 in order to introduce the principle that universally binding provisions contained in international agreements are to be directly applied in the Netherlands, thus eliminating the requirement of them first being introduced into national legislation. The Netherlands accepts compulsory ICJ (International Court of Justice) jurisdiction.

[The text has been drafted in consultation with theMinistry of Justice of the Kingdom of the Netherlands, 7 February, 2003]