Constitutioneel Procesrecht: Over Nederlandse Constitutionele Rechtspraak, Rechterlijke Grensbepaling en Procesrechtelijke Modificatie

Abstract

At first glance, constitutional adjudication seems foreign to the Dutch legal system. There is no constitutional court, and Article 120 of the Dutch Constitution prohibits the review of the compatibility of Acts of Parliament with the Constitution. On closer inspection, however, constitutional adjudication (writ large) is becoming an increasingly dominant feature of the Dutch constitutional system. With constitutional adjudication gaining prominence, a related and new area of law is steadily emerging: ‘Constitutional Procedure’. This field encompasses a wide array of procedural doctrines regulating constitutional jurisdiction and guiding the courts in exercising it, such as justiciability, evidence, participation, remedies and the legal effects of judgments. This thesis introduces constitutional procedure as a novel area of scholarly study and legal practice in the Netherlands. It thereby focuses on two key themes in modern Dutch constitutional procedure. First, it explores the limits of the judicial role in constitutional cases. As the judicialization of politics advances, questions arise about the position of the judiciary vis-à-vis the political branches of government, as well as the limits of the judicial role. An important subset of doctrines concerns judicial restraint, i.e. largely self-imposed limits by the courts. The thesis critically engages with modern day instances of judicial restraint in the Dutch legal order, proposing new and principled foundations for restraint as well as novel applications of traditional doctrines of deference. Second, this thesis addresses the need for procedural rules that are tailored to the specificities of the constitutional role of the Dutch courts. As constitutional adjudication becomes more prominent, the question arises whether procedural law should be adjusted to or specifically designed for the constitutional functions of the Dutch courts. Therefore, a second line of research in this study concerns the possibilities for procedural change in constitutional cases. The thesis aims to develop key components for a procedural framework for constitutional litigation in the Netherlands. It explores how procedural norms can reflect the special nature of constitutional adjudication with a view to facilitating the proper exercise of constitutional jurisdiction.