Editing Constitution of the Netherlands (section)

====Chapter 5: Legislation and Administration====
=====§1: Laws and other prescripts=====
The Legislative is formed by Government (i.e. King and ministers) and the States General in cooperation (Article 81), although the term "legislative" is not actually used: the article simply states that government and the States General together make laws. This means that the Dutch concept of "formal law" cannot simply be equated to "Act of Parliament", as government and parliament act in unison in creating laws. In the Dutch constitutional system there is no decisive [[referendum]], although sometimes consultative referendums are held, like the one in 2005 in which the people advised to reject the [[Treaty establishing a Constitution for Europe|European Constitution]]; the Dutch people is thus not a direct lawgiver.

Bills are presented by the King or by the House of Representatives, which thus has the [[right of initiative]] (Article 82). Some bills have to be presented by the States General in United Assembly (subarticle 2). The Senate cannot propose law. The ministers can but in fact act through the King who sends a Royal Missive (Article 83), containing the proposal, which is only signed by himself, thus without countersign. The House of Representatives has the [[Amend (motion)|right of amendment]]; government too may [[amend (motion)|amend]] (Article 84). The Senate only can pass or reject laws in full (Article 85), defended by the responsible minister or by members of the House of Representatives having taken the initiative to propose the law; however, in practice it can send the proposal back asking for a ''novelle'' to be passed by the House of Representatives, in fact an amendment of law. Bills may be withdrawn by the proposer until passed (Article 86), but only by a majority of the House of Representatives if the bill has been presented by some members of the House of Representatives and has been passed by the House of Representatives. Bills become valid law once they have been passed by Parliament and have been affirmed by the King (Article 87). It is generally assumed that this also fulfills the demand of signature by Article 47.  The affirmation needs sign and ministerial countersign but also the older Royal Order has to be signed and countersigned, ordering to publish the law in a special publication, the ''Staatsblad van het Koninkrijk der Nederlanden'' (''Bulletin of Acts, Orders and Decrees of the Kingdom of the Netherlands'', also called ''Bulletin of Acts and Decrees''). Only after such publication the law has an external binding force (Article 88).

In the Dutch constitutional system there is not only formal law; also other general governmental regulations are recognised, binding the citizen; the overarching concept is called "material law". These other regulations are the "other prescripts" mentioned in the heading of §1. Only the most important subcategory of these is explicitly mentioned in the constitution, in Article 89: the ''Algemene maatregelen van bestuur'', "General Administrative Orders". To avoid doctrinal strive over what orders exactly are covered by this concept, a consensus has developed that a strict formal definition can be applied: all general orders made by Royal Decree (Subarticle 1) that have been submitted to the Council of Ministers and to the Council of State and have been published by the ''Staatsblad'', are General Administrative Orders. Since the Second World War a doctrinal consensus has gradually developed that all general Royal Decrees have to conform to these conditions to be valid and that earlier practices to issue general Royal Decrees without meeting these three formalities — such Decrees, general or otherwise, are called "minor Royal Decrees" — can no longer result in regulations with binding force towards the citizen. Since 1889 the constitution determines that all prescripts with a penal character have to be based on formal law and that this law imposes the penalty (Subarticles 2 and 4). This includes the Royal Decrees and thus the General Administrative Orders. A doctrinal consensus has developed, however, that all General Administrative Orders, not just those with penal content, have to be based on formal law to be valid, with the competence to regulate delegated by such law.

=====§2: Other prescripts=====
The second paragraph of Chapter 5 contains several articles of disparate administrative content; but they are not the same as the "other prescripts" of §1; the redaction of the headings is generally seen as confusing and infelicitous on this point. Most articles in §2 are combined in coherent groups.

The first of these groups consists of articles pertaining to international law and treaties. Article 90 states that it is the duty of government to promote the international [[rule of law]]. The Netherlands is home to several [[International court|International Courts]]. Doctrine holds that this article also attributes the general right to conclude treaties. Article 91 states that the Kingdom shall not be bound by treaty without prior approval of the States General, except for those cases where law determines no such approval is necessary. Such approval may be tacit (Subarticle 2). Despite this, if not either a reservation of approval is made on conclusion of the treaty, or the treaty contains a ratification clause, treaties are according to international law binding upon conclusion. The article must thus be seen as imposing a duty upon government to arrange for such reservation or clause. Subarticle 3 determines that if a treaty conflicts with the Constitution, it has to be approved by a two-thirds majority of both Houses. Whether such conflict exists is decided by the States General; article 6 of the lower ''[[Rijkswet]] goedkeuring en bekendmaking verdragen'' determines that this decision has again to be made by special formal law. A special implementation by law of the 1992 [[Treaty of Maastricht]] determines that certain [[European Community]] decisions having force of treaty have to be approved by Parliament prior to even the conclusion itself. By treaty legislative, administrative and judicial powers may be conferred on organisations established under international law (Article 92). This has been done on many occasions, e.g. on the [[Benelux]], the European Community, the [[United Nations]], the [[Council of Europe]] and [[NATO]].

According to present doctrine, that of "[[Monism and dualism in international law|treaty monism]]", treaties are in the Dutch legal system in principle self-executing; no special transformation is needed by implementing special law, as in countries with a "dualistic" system (such as the United Kingdom). However, when the present articles covering this subject were last revisioned, in 1953, doctrine was divided and some defended a more dualistic position, that of "limited monism". They demanded the constitution to be neutral on this issue and this has led to some infelicitous results. Government originally intended that Article 93, stating that treaties of a generally binding nature would only have such binding force after they had been published, to be simply a safeguard, protecting the citizen against duties imposed on him by such treaty. However, the "limited monists" held that only such published treaties are self-executing and that thus Article 93 is the basis for all treaty monism; to appease them government stated that the article should in any case be read as covering also the treaties conferring rights on the citizen and imposing duties upon government. The unintended result was that government might thus in principle withhold rights to the citizen by not publishing the treaty. Article 94 determines that legal prescripts are inapplicable if they conflict with treaties of a generally binding nature. This means that laws can be tested against treaty norms and obligations. Dutch courts have however been very reluctant to do so, limiting this to cases where government has been left no freedom of policy at all by the treaty, or to severe formal and procedural defects. The case law is very complex and contradictory, complicated by the fact that the phrase "generally binding nature" is assumed to have exactly the same meaning in both articles. Article 95 states that law regulates the publication of treaties or (binding) decisions of international organisations; delegation is allowed.

A second group of articles consists of those pertaining to the national security. Before the revision of 1983 these were combined in a separate Chapter 10; the articles as such remained largely unchanged in 1983, but were finally fully revised in 2000. Article 96 states that a prior approval of the States General is necessary for the government (since 1983 no longer the King) to declare that the Kingdom is in a [[Declaration of war|state of war]]. This approval must be given by the United Assembly (Subarticle 3), as it would be most embarrassing if the House of Representatives approved but the Senate withheld approval. If the existing war conditions make such an approval impossible it is not required. Indeed, the approval has little value in any case: the subject of the article is not the classic [[declaration of war]], as such a declaration according to doctrine might constitute a [[war crime]] by implying a [[war of aggression]] forbidden by international law. It is a simple declarative statement of fact, without legal consequences, that a war situation has come to exist. The doctrine of many other nations makes no such distinction. Article 97 states that a defence force exists to defend the Kingdom and its interests and to maintain and promote the international rule of law; Subarticle 2 determines that the supreme authority over this defence force is exercised by the government; there is thus no constitutional [[Commander-in-Chief|supreme commander]]. This defence force consists of volunteers and may contain conscripts (Article 98). Since Napoleonic times [[conscription]] had been the rule and voluntary service the exception; this has now been inverted to accommodate the creation of a fully [[professional army]] in 1997. However, the old laws regulating conscription have only been suspended, to be reactivated in case of emergency; this is given a constitutional basis by Subarticle 2; delegation is allowed. A provision that has remained unchanged is Article 99, stating that law regulates the exemption of [[military service]] for [[conscientious objector]]s; delegation is allowed. In 2000 a new Article 99a was inserted, that law has to regulate [[civil defence]]; the older legal system regulating this issue had been largely abolished since the end of the [[Cold War]]. Delegation is allowed. Government has to inform the States General about any intended foreign deployment of Dutch forces outside of defence treaty obligations, thus to protect the international rule of law and for [[humanitarian mission]]s (Article 100). In an emergency situation such information can be given after the facts. Both government and parliament tended to present this duty as a kind of implicit approval, as parliament could in principle force government to call off the mission, but the Council of State has made clear this is at least formally not the case. Article 101 (mobilisation) has been abrogated in 1995, Article 102 (defence budget and prohibition of [[billet]]ing) in 2000. Article 103 states that law has to determine in which cases a Royal Decree may declare a [[state of emergency]] to maintain external or internal security; delegation is allowed. The powers of lower administrative bodies can be limited; the basic rights expressed in Articles 6,7,8,9, 12 Subarticle 2, 13 and 113 Subarticle 1 and 3 can be infringed upon (Subarticle 2). Royal Decree may end the state of emergency. The States General decide in United Assembly whether the state of emergency must be maintained, immediately after its declaration and as often as they see fit afterwards (Subarticle 3).

The third group consists of articles pertaining to financial issues. Imposed taxation must be based on formal law (Article 104). Delegation is allowed. However, to indicate this must be done hesitantly, parliament insisted on a slightly different terminology: instead of ''krachtens de wet'', the phrase ''uit kracht van wet'' was used; both mean "by force of law" or "pursuant to law"; but the second expression puts somewhat more emphasis on the ''force'' of the law and thus on the fact all delegation is ultimately derived from law. A yearly budget is on ''Prinsjesdag'' presented to the States General, its balance sheet approved by the Court of Audit (Article 105). Delegation is not allowed. The budget debates are held by the House of Representatives, with a separate treatment of each departmental budget and of special interdepartmental budgets; since 1971, the Senate immediately approves the budget formally in exchange for full policy debates. Article 106 states that formal law regulates the [[monetary system]]. Delegation is allowed. The article has lost its relevance by the introduction of the [[euro]] in 2002; doctrine holds that the constitution does not demand a purely national system.

A fourth and last group of articles pertains to judicial issues. Article 107 is the "[[Codification (law)|codification]] article". It imposes that that [[private law]], [[penal law]] and the separate [[procedural law]]s covering these subjects must indeed be formal law and treated in a general [[Civil Code]] and a [[Penal Code]], although certain subject might be covered by special laws. Delegation is allowed but doctrine holds that [[criminal law]] (which is seen as a more limited field than general penal law) must be determined by formal law only. This means provinces and municipalities cannot create their own [[criminal code]]s and government cannot make a certain act a crime by a Royal Decree not based on formal law. As the [[administrative law]] of the Netherlands is so complex, it was deemed impossible to incorporate it in a single code, but its general rules must be covered in a general code (Subarticle 2) as has indeed gradually been done since the nineties, be it with great difficulty. Article 108 (investigative bodies for civil complaints) has been abrogated in 1999. Article 109 states that the position of [[civil servant]]s, including their protection and workers' participation must be determined by law. This has as yet not been done in any general way. Doctrine holds that civil servants enjoy full protection by constitutional basic rights. Article 110 imposes a duty upon government to safeguard by formal law sufficient [[public access to information]] regarding governmental activities. Delegation is allowed. The government does not see this as some general "right to public access to information" and this has been the reason not to insert it into Chapter 1, but this interpretation is quite popular in doctrine as the right does even more resemble a freedom right than a social right.

Article 111, the last of this paragraph, stands alone; it determines that formal law shall instate honorary Royal Orders of Knighthood. These are in fact the [[Order of William]], the [[Order of the Netherlands Lion]] and the [[Order of Orange-Nassau]]. They do not include Royal House Orders, which are the personal prerogative of the King, such the [[House Order of Orange]] and the later [[Order of the Crown (Netherlands)|Order of the Crown]] and [[The Order for Loyalty and Merit]]. Each year many thousands are honoured by the constitutional orders.