Elections are in full swing, meaning political parties are campaigning to win over voters. Parties showcase their best sides in their election programmes, often proposing amendments to the Constitution. An example of this is the proposal by SGP, CDA, CU and BBB, suggesting the addition of an article in the Constitution dedicated to 'the respect for family life,' potentially codified as a new Article 10a. According to these parties, this article should oversee the family's economic, social, and cultural protection. However, to explore the feasibility of such proposals to amend the Constitution, a crucial question must be posed: How is the Constitution actually amended? Nick Efthymiou, Assistant Professor of Constitutional Law at Erasmus School of Law, and Wouter Scherpenisse, PhD candidate at Erasmus School of Law, attempt to provide a clear answer to this question.
The Constitution is a crucial constitutional document that encompasses a large number of fundamental rights. Additionally, the Constitution serves several important constitutional functions. Efthymiou and Scherpenisse explain these functions: "The first function is constitutive: the Constitution creates government offices. The second function is attributive: the Constitution creates powers and assigns them to the constituted government offices. The third is regulatory: the Constitution moderates the constituted offices in the exercise of their powers." Thus, the Constitution not only protects the interests of the citizens but also ensures the stability and continuity of the Netherlands as a state. Unsurprisingly, a document with such provisions should not be easily amendable. The Constitution's framers have chosen to surround constitutional amendments with additional safeguards compared to regular legislative processes.
Adopting a proposal for amendment
Efthymiou and Scherpenisse explain: "Regular legislative proposals – acts of parliament – are initiated by the 'legislator,' consisting of the government and the States General together, following Article 81 of the Constitution." A legislative proposal can be adopted when a majority of the House of Representatives votes in favour. Additionally, there must be a majority in the Senate for the proposal to be adopted.
However, when amending the Constitution, a more stringent procedure applies. "Instead of the 'legislator,' we speak of the 'constitution amender' here. The first part – the first reading – of the constitutional amendment follows a trajectory similar to regular legislative processes. Proposals to amend the Constitution are adopted with a simple majority in both chambers. After adopting this amendment proposal, elections for the House of Representatives must occur. After these elections, both chambers must vote on the amendment again. In this second reading, the amendment must be adopted by a two-thirds majority of the votes cast. If the proposal to amend the Constitution passes these votes with sufficient support, then the proposal is accepted," state the researchers.
Constitutional amendment
The Dutch Constitution was drafted in 1814, and since then, it has been revised 26 times. The most significant revisions occurred in 1848, 1917, and 1983. The constitutional amendment of 2022 is described as the most important revision since 1983. The desire to revise the Constitution is common, but Efthymiou and Scherpenisse note: "Political parties often propose changes in their election programs, but these proposals often do not garner sufficient votes in the first or second reading." For example, consider the desire of the SGP to reintroduce the death penalty or the proposal to abolish the monarchy, which found a majority at the party congress of GL/PvdA. Many proposals for constitutional amendments do not receive enough votes during consideration in the States General to be actually implemented.
Respect for family life in the constitution
The proposal by the SGP, CDA, CU, and BBB to include 'respect for family life' in the Constitution may have a better chance of success. The polls support the expectation that this proposal has a greater chance of success, indicating a slight socially conservative preference among Dutch voters. The proposal may also receive support from the new party, Nieuw Sociaal Contract (NSC). Efthymiou and Scherpenisse state: "It remains speculative whether the elections will turn out as the current predictions suggest. 22 November will provide more clarity. In any case, we have attempted to illustrate that such a change will not be implemented in a single session of the States General. A majority in the first reading does not change the fact that a two-thirds majority must be sought in a re-elected States General."
- Assistant professor
- PhD student