Including the right to a fair trial in the Constitution will only be effective if Dutch judges can test for constitutionality, says Frits Bakker, chairman for the Council for the Judiciary.

The cabinet is proposing to include in the Constitution the right to a fair trial before an independent and impartial judge. Additionally, they want to add the phrase "the Constitution safeguards democracy, the rule of law and fundamental rights" before Article 1, as a general reader's note.

With the proposed changes, the cabinet is responding to the recommendations of the State Constitution Commission from 2010 and the Senate's pressure to implement the recommendations.

Fundamental human rights

Bakker points out that the proposals will only be effective in practice if the ban for judges to test for constitutionality is lifted. The Netherlands is one of the few rule-of-law states in the world where judges are limited in this regard.

The Constitution does contain fundamental human rights, such as the right to freedom of speech, freedom of religion and the right to life, but Dutch judges can only examine whether laws are in line with international treaties.

No guarantee

According to Bakker, allowing the testing for constitutionality prevents civil rights from being gradually eroded by new legislation.

"The judiciary has been advocating for a long time to lift the ban on testing constitutionality. A judge can now only correct the government with a detour, by keeping it to international treaties that the Netherlands has ratified. These treaties contain the same fundamental rights as the Constitution, but there is no guarantee that the relevant law is revised or retracted. This will be the case if judges become able to examine whether a law is in conflict with the Constitution," he says.

Living document

An important side effect, Bakker says, is that the Constitution would become a living document for the Dutch people, because they would be able to directly invoke their rights:

"The Constitution has to be what it is in many states: the beating heart of democracy."