Week 2 - Constitutional law

Important: know the systems: presidential parliamentary, benefits and disadvantages etc

 eg: compare dutch system to other system

constitutional law:

- public law, about excercise of public competence

State:

- states are good for common wealth contract social

o social contract (rousseu) organize ourselves in state for the greater good give up
individual rights to form a new society getting new rights in the state
o pessimistic train of thought: thomas hobbes man is teh wolf of another man,
without state there is destruction
 u submit yourself tot he state, give up all teh rights and live under state’s
authority
- in a state we need rules: for the state organization, the organs of sttae, rules between state
and citizens

Kingdom of netherlands

- 4 countries all together, autonomous countries withown parlaiment sharing 1 king (besides
military and foreign affairs tehy are autonomous)

Constitutional law

- public law excercising public competences, things public law entities are allowed to do that
private entities can not do
- where are the sources of constitutional law?
o charter of the kingdom (all 4 countries)
o dutch constitution (eu netherlands) art. X C.
o unwritten sources (customs eg.: confidenece rule, case law, general principles
 customary rules supplement constitutional law
 case law:
 eg by supreme court about that treaties dont need to transformed
into dutch law for citizens to be able to get rights and duties from the
treeaties at court (monist system) article 93-94 C. (case law rule
codified)

What is a state: (requirements)

1. defined territory
 2. permanent population
3. efefctive control of an independnet/sovereign authority
a. recognitation by other states is not neccesity, not a requirement as this is a matter of
policy and politics

Unitary state

- authority in central gov, there are decentralied units excercising powers delegated from
central gov

Federation

- union of partially self governing states, having a paper saying what the government can and
cannot dpo (only powers to what teh states agreed to)

Confederation

- Supremacy of individual states that unite for common action, marginal loss of sovereignity
- eg: switzerland was one, russia and belarus together

there is a decline in monarchies

- monarchies have been turning into republics the last few decades

Its good to check the structure of a sourec of a field of law

- list them and what they are about, find the outline of legal documents

eu part of netherlands

- Constitutional monarchy
- parliamentary democracy
- decentralized unitary state

Constitution

- divided into chapter

- acts of parlaiments that doive into constitution are called organic laws: art 107 C
o some statutes required by constitution, the legislator ha stp create certian laws: civil
code, penal code etc (constitution statute requires teh legislature tod o X & Y
- fundamental rights in ch 1 can be used aginst teh state(vertical effect) and fellow citizens
(horizontal effect)
o original fundamentalrights were for vertical effect only
Dutch parlaiment

- bicameral article 52 C.
o second cham,ber is teh stronger? ditectly elected, 150 members,
- crown : state an dministers (art 42-1 C)
- Ministerial responsibility (art 42-2 C)

Constitution often trie sto limit teh power of the state to avoid abuse of power

Rule of law

- separation of political powers (trias politica)

- legality
- fundamental rights
- judicial review

Trias politica:

- split power uzp according to state functions (montesquie)

o legislative branch: parlaiment and government art 81 C making GBRs
o Excecutive branch: government art 97 (2) & 131 C implementing acts, maing
decisions for individual cases
o judicial branch: judiciary art 112&113 C resolving disputes in civil, criminal and
administratiev courts

Legislativ branch

- making GBRs
o written rules
o addressed to indefine numeber of peopel
o applicable in an indefinite number of cases
o binding so no deviation is possible

Checks and balances

- separation of powers is not absolute

o legislation: parlaimenta nd government work together to make acts of parlaiment,
enactment of individual cases art 28 C
o excecutive: government co legislator, independnet rule making competence
(administrative order = UK: order in council)
o Judiciary: soemtimes administrative functions, eg appointment of legal guadian
(decison) excecutive
Legality

- everything should have abasis in law

o public bodies are bound by law
o state activities need a basis in law
 Negative measures need legal basis: nulla poena sin lege article 16 C.
 Positive measure need legal basis: fluoridation case (add flouride to drinking
water to improve dental hygiene, but without legal basis can u put chemicals
to drinking water?--> no)
o legal basis in law: atribution vs delegation
 competence: public law competence is either azttributed or delegated
 attributed powers are in constitution as teh constitution empowers u
tod o legislation or other
 delegation: body has attributed powers passing power downward
based ona legal baiss in law
o attribution occurs on differnt levels art 81, 89, 127, 133 C. (who can produce
enacted law)

Delegation

- transfer of power
- explicit statutory basis is needed
- benefits: efficinet and more specific legislation
- eg:
o formal legislator road traffic act
o government decree on alcohol tests
o minister regulation on breath analysis

Fundamental rights

- constitution ch 1
- treaties
- fundamental rights: category, characteristics, restriction
- classic vs social fundamnetal rights
o classic: original, first generation rights, government is not allowed ro interfere,
addressed to citizen: enforcable at court
o social: second generation, government needs to act, instruction norms for
governmenr, not enforcable at court?

Absolute fundamental rights

- cannot be restricted

Relative fundmanetal rights

- can be restricted
o with statutory basis
o following legitimate aim
Art 6 C

- can be restricted
- law can resctrict this right
- restriction needs an act of parliament

Judicial review

- judiciary independnece 117 C

o appointed for life by royal decree
o legal status regulated by status
o grounds for termination appointment
 resignation
 pensionable age (70 age)
 suspension or dismissal by supreme court
- judicial review: use the hiearchy of gbr
o article 120 C no constitutional revie win netehrlands, but treaties and charter of
teh kinngdom trump constitution so they can use thos eto to invalidate rules lower
than the constitution
o parlaiment decides what is constitutional, not teh judge
 supremeacy of formal legislagtors
o backdoor method: superior rules article 94 C
- USA: any court can review
- germany: special constitutinal court
- france: constitutional council

Polity:

- democracy
o direct:
 ancient greece, referenda
o indirect/ representative democracy
 elections (right to vote/eligibality)
 sometimes combined with refernda
o presidential
 peopel vote ont he head of government, not parties
 head of government  head of state having a mandate of his own
o parlaimentary
 peoiple vote on parties
 head of government is not the heda of state
o Netherlands: parlaimentayr democracy
 wher is sovereignity? not the king, he lot it by time
 sov is in teh secind chamber, customary la wocnvention
Nethrlands polity

- parlaimet
o second chamber, direct election, prop rep
o first chamber, indirect election (via provincial council), prop rep
- state general:
o reps all dutch (art 50 C)
o political supremacy with sceond chamber
- Parlaimentary system
- right of interpellation (debate an issue, art 68 C)
- right to approve and amend budget (art 105 C)
- ministers accountable to parlaiment, not the king
- rule of confidnece (customary rule)

Local democracy

- provinciol, municipal
- direct election
- prop rep

dutch polity doe snot allow

- elected prime minister, mayor, judge, district attorney

- no legally bindng referenda (failed)

Dutch monarchy

- ch 2 king
- house of orange art 24 C
- but lost his power by time
- theer was always a minster to sign an act of parlaiment next tot he king, now teh king has
a symbolic importance
- now he is nearly a ceremonial figure
- now no real power, he is being consulted, worned, and discussed,
o if teher is tragedy than the king goes and shows sympathy
o since 2012 has no power to establish gov