1. Give an accurate definition of constitutional law (use your lecture notes).

Constitutional law is part of public law and a body of law which forms a
vertical relationship between the government and its citizens. It deals with topics of state
organisation and
manages the relationship between citizens and the state. It furthermore, discusses the way
international
law is integrated into national law. (art. 93 and 94 C.)

2. Dutch constitutional law consists of enacted law only. Is this statement true or false?
Explain your answer.
Dutch constitutional laws does not only consist of enacted law, but of unwritten las as well such as
customary law, because rules of customary law supplement the constitution. An example is the
confidence rule, which is applied when the parliament has lost faith in a minster or the government.

3. One of the most valuable pieces of advice we can offer you is that you start your
analysis of legislation (or a contract) by familiarising yourself with its chapters.
The chapter headings will give you a rough idea about its general layout and enable you to
locate the relevant provisions quickly. On the exam, such knowledge will save
you valuable time.Name each of the chapters of the Dutch Constitution and, without reading
the provisions in
each chapter, try to write a few words on what you think the provisions in each chapter will
regulate.

• Chapter 1 - Fundamental rights

This chapter grants its citizens fundamental human rights. Usually those include rights like equality,
freedom of press, freedom of religion etc. Since the fundamental rights are placed in the very
beginning one could argue that they have a key importance in society.
• Chapter 2 - Government
This chapter regulates which bodies form the government of the Netherlands. Furthermore, what
competences the government has, how it is elected etc.
• Chapter 3 - The States General
Contains information on the parliament (“Staten-Generaal”), how it is elected, what its tasks are,
what it is authorised to do etc.
• Chapter 4 - Council of State, Court of Audit National Ombudsman and permanent advisory bodies
This chapter discusses which bodies need or can be asked for advice, in what situations this should/
must be done etc.
• Chapter 5 - Legislation
This chapter is about how legislation is enacted, who is in charge of legislation etc.
• Chapter 6 - The administration of justice
This chapter contains information on the judicial branch, so how the courts are organised, makes
sure
that the courts are independant etc.
• Chapter 7 - Provinces, municipalities, water boards and other public bodies
Since the Netherlands is a decentralised unitary state I assume that this chapter contains information
on the competences of the smaller bodies named in the title (provinces, municipalities etc).
• Chapter 8 - Revision of the Constitution
Contains information on how, under which conditions and to what degree the constitution can be
changed
4. Countries such as Italy, Latvia and the Netherlands have a parliamentary system, while
the United States and Brazil have a presidential system. What is the defining
feature between parliamentary systems and presidential systems?
The difference is that in a presidential system the head of state is also the head of government (e.g.
USA), in those systems the president is elected directly by the people. In a parliamentary system the
head of state is not the head of government, in such countries the e.g. prime minister is elected by
the parliament, therefore the people elect the party but not the person.
Important: In a presidential system the president doesn’t owe the parliament, there is no
accountability!

5. The constitutional system of a state can be unitary or federal. How can you establish
whether a state is unitary or federal?
Unitary state:

- the national government is the highest power within the state

- there is no protection of the regional government
- e.g. France. the Netherlands
- art. 81 of the constitution gives all competences to the formal legislator
Federal state:
- Local governments govern themselves to a certain degree
- More autonomy for local governments in general
- The state is the only one engaged in foreign policy
- e.g. USA, Germany, Switzerland

6. Why is qualifying the Kingdom of the Netherlands as a decentralised unitary state

incorrect?

7. In the Netherlands, not everyone favours the monarchy. Some people prefer a republican
society and want to replace the King with a chosen president as the head of state. Some say
that a monarchy is incompatible with the rule of law. Is this statement correct? Explain
your answer.
No, this statement is not correct, since in the Netherlands are a constitutional monarchy, meaning
that the king is only figurative and has therefore no political competence. A Rechtstaat has 4 main
criteria:
-Trias Politica
-Legality
-Fundamental Human Rights
-Judicial Review
Having king within a constitutional monarchy does not violate any of those criteria and therefore a
constitutional monarchy can very well work according to the Rule of Law.

8. In the eighteenth century, the French philosopher Montesquieu contributed to

constitutional law by describing a political system known as the Trias Politica. Explain
this system
Trias Politica is a political concept established by Montesquieu. According to this principle a state
must be
divided into the following three branches in order to prevent people from having to much power:
-legislative branch: making the written law (in NL: government + parliament)
-executive branch: executing the law (in NL: government)
-judicial branch: speaking the law (in NL: courts) —> only in cases of conflict

9. Does the Dutch constitution contain an institutional separation of powers? Explain how
the legislative, executive and judiciary powers are distributed and mention the relevant
articles of the constitution.
Yes. The Netherlands do have an institutionalised separation of power and therefore follow the
approach
of trias politica. In the Netherlands…
… the legislative branche consists of the government and the parliament together. art 81 & 84 C.
… the executive branche consists of the government. art. 42 C.
… the judicial branch consist of the Judiciaries. art. 112 and 113 C.
10. In 2018, James Stansfield was the first to receive a new Dutch passport with an ‘X’
(gender neutral) marking James’s gender. At James’s birth, the baby’s gender could not be
determined, but James was registered as ‘male’. In 2001, James underwent a
gender reassignment surgery to change his physical appearance to resemble those
socially associated with a male. Yet, James still did not identify as a male as he felt gender-
neutral. In 2018, the District Court in Limburg decided that his birth certificate had to be
changed: in the gender specification, it should be mentioned ‘that the gender
could not be determined’. In this case, the District Court did not follow the case law of
the Dutch Supreme Court, which judged in 2007 that the ‘time was not right’ for such a
gender specification yet. According to the theory of the institutional separation of powers, the
judiciary should not
make such a decision.
a. Please explain why.
According to the “trias politica” the judiciary branch should only “speak the law”, meaning that it
should not be involved in the law-making process. In this case the court made a decision which,
strictly speaking, is not part of its competence, since it is an executive decision. In some cases it is
possible that the court still makes such decision of administrative order because it is a decision of
low impact and therefore
allowing the court to make such decisions will lower the paper chase and makes the system more
efficient. There is no conflict and therefore it is technically not an issue of the judicial branch.

b. Try to argue why the Dutch legislator left this matter to the judiciary.

11. In September 2023, the pandemic once again hit the Netherlands hard due to the
introduction of the gamma-variant of the Covid-virus. Fortunately, a Dutch pharmaceutical
company called Duphaco developed a vaccine that does not need to be injected: it can be
distributed through the water network. The Dutch Minister of Public Health, Ernst Kuipers,
is ecstatic and wishes to start the distribution immediately to get rid of the virus in the
Netherlands once and for all. Is he allowed to carry out his plans? Explain your answer.

No, he is not allowed to do so, since state activity must always have a legal basis no matter whether
it is a positive or negative intervention. In this particular case the vaccine can most probably be
assessed as a positive intervention, but still there is no legal basis to do so, which prohibits the
government to take such actions. This example is very similar to a previous Supreme court case
called the Fluoride case, in which it was decided that such positive Interventions must have a legal
basis too. An additional factor is the right to bodily integrity, which is granted by most constitutions.
This right gives every citizen the possibility to decide on what happens to his body. Distributing a
vaccine through drinking water would violate such a right.

12. What are the characteristics of general binding regulations (gbr)?

General binding regulations (gbr) are…
… general written rules, that are…
… addressed to an indefinite number of people and cases and which
… are binding.
There are several types of GBR’s such as Treaties, Constitutions, Acts of Parliament, Municipal by-
laws etc.

13. The Dutch Constitution specifies which governmental bodies are allowed to issue
general binding regulations (gbr). Which bodies are attributed with the power to issue
general binding regulation? Do not forget to list the relevant provisions.
In the Netherlands the parliament and the Staten-Generaal, which serve as the formal legislator of
the Netherlands are the only body that is entitled to issue GBR’s directly, according to art. 81 C..
Yet, they are not the only body making new rules, because the formal legislator can delegate its law-
making competences to other bodies if this is explicitly stated in the constitution of a state:
Municipality (art. 127. C), Government (art. 89 C.), Water boards (art. 133 C.)

14. Explain whether or not the Formal Legislator (King + States General) is allowed to
delegate the authority to create a general binding regulation in the following instances:
a. Article 11 Dutch Constitution.-No, in this case a delegation is prohibited since it is not
explicitly stated in the constitution
b. Article 13 section 1 Dutch Constitution -No, in this case a delegation is prohibited since it is
not explicitly stated in the constitution.
c. Article 106 Dutch Constitution -Yes, in this case a delegation is allowed since it is stated in the
second paragraph of the constitutional
article.

15. Fundamental rights can be classified into social fundamental rights and
classic
fundamental rights.
a. Explain the difference between them and give examples from the Dutch Constitution.
Fundamental rights can be distinguished in the following two ways:
-Classic rights vs. social rights

-classic rights: this branch of fundamental rights is addressed to the citizens and can therefore be
enforced in court. An example in the Dutch Constitution would be art. 9 the right to
demonstration. Subdivision into political and liberty rights possible!

-social rights: this branch of rights addresses the government they can therefore not be enforced
directly by a citizen in court. They can only be enf
b. From a legal point of view, social fundamental rights do not have any value. Is this
statement true or false? Explain your answer.
This statement is not true.

16. Fundamental rights can be classified as absolute and relative fundamental rights. Please
explain the difference between them and give examples from the Dutch Constitution.

-Absolute rights vs. relative rights

-absolute rights cannot be restricted. There are only two absolute rights: right to petition (art. 5 C.)
and the prohibition of torture.

-relative rights can be restricted under certain conditions (statutory basis + legitimate aim).
Examples for relative rights would be the right of assembly (art. 9 C.)

17. Sometimes, it is argued that fundamental rights have a horizontal effect. What does that
mean, and explain why such horizontal effects can be problematic.

Fundamental rights are meant to create a vertical relationship between the state and its citizens. But
it can happen that two fundamental rights of two equal citizens clash. In this case the court must
decide which right must be valued more. This is problematic because people cannot live out their
rights unconditionally.

18. In 2008, the controversial Dutch member of parliament Geert Wilders gained
international attention when he published on the internet the first edition of his short movie
‘Fitna’ (more information on this action and the subsequent trial can be found
onWikipedia). For our purposes, it suffices that Wilders used a copyrighted Jyllands-Posten
cartoon without permission. The famous cartoon Kurt Westergaard created (1935-2021)
depicts the prophet Muhammad wearing a turban with a fuse-lit bomb.
Furthermore,Wilders called for a ban on the Quran, and warned against an "Islamic
invasion" and a"tsunami of Islamization". He also labelled Islam as a fascist religion,
described Dutch-Moroccan youths as violent, and compared the Quran with Hitler's book
‘Mein Kampf’. He has also referred to Mohammed as "the devil". When the Amsterdam
Court of Appeal had
to decide whether Wilders should be prosecuted, it emphasised that in this case,
theclassical problem occurred of collision of fundamental rights. Which fundamental rights
do
you think collided in this case? Explain your answer, and do not forget to mention the
relevant provisions.
Nn this case the prohibition of discrimination (art. 1 C.) and the freedom of expression (art. 7 C.)
collide. Wilders’s expressions are clearly discriminating Muslim people and therefore he violates
the prohibition of discrimination. On the other hand, Wilders has the right to freedom of expression.
This is a typical example of the horizontal effect and therefore problematic, since either Wilders’s
fundamental rights or the fundamental right of the muslim people must be restricted.

19. The Dutch Royal Family was on holiday in the Netherlands last summer.
Aphotographer took a few pictures of them without asking for permission. These pictures
were published in a magazine. His Royal Highness decided to go to court, believing this
was a private moment for his family. Consequently, no pictures should be taken
or published. Publishing pictures of the Royal Family is only allowed when the pictures are
taken in photo shoots organized by the Royal House itself. Which fundamental rights
collide in this case? Explain your answer, and do not forget to mention the
relevant provisions.

In this concrete case the right to privacy (art. 10 C.) and the freedom of press (art. 7 C.) collide. In
this case a court would need to figure out whether the right of privacy of the royal family (which
was violated by not asking for permission when taking and publishing pictures) or the right to
freedom of press (which was acted upon by the photographer/publisher) is more important.

20. Suppose that legislation would be adopted in the Netherlands prohibiting protests on
certain topics (for instance, ' Zwarte piet’). Could the Dutch Supreme Court declare such a
law unconstitutional if the Dutch legislation in question would be:
a. an Act of Parliament? -No. In the Netherlands it is prohibited to review acts of parliament
against the constitution since this would be done by the Supreme court and thus violate the trias
politica because the court would indirectly get legislative powers. Art. 120 C.
b. a Royal Decree? - Yes. There is no prohibition of revision against the constitution for Royal
Decrees in the Dutch Constitution. Therefore it would be allowed to review it.