Under Article 120 of the Dutch Constitution, judges are prohibited from assessing whether laws align with the Constitution. This principle ensures that the legislature, not the judiciary, holds primary responsibility for upholding constitutional compliance. However, the government now seeks to partially lift this ban partially, allowing courts to evaluate laws against core constitutional rights.

Expanded Judicial Review for Fundamental Rights

The proposed amendment would permit courts to review laws against “classic fundamental rights”, constitutional protections shielding individuals from government overreach. These include:

• Freedom of expression, education, and religion

• The prohibition of discrimination

For example, if a law is accused of gender-based discrimination, citizens could challenge it in court. The draft legislation specifies all rights subject to judicial review.

Stricter Standards for Limiting Rights

The amendment also clarifies when and how fundamental rights may be restricted. While some limitations are necessary (e.g., balancing public order concerns with protest rights), current law focuses more on who can impose restrictions rather than justifying them substantively.

The revised text would require any restriction to meet stricter criteria, ensuring it:

1. Serves a legitimate purpose

2. Is proportionate (not excessive relative to the goal)

3. Is necessary (no less intrusive alternative exists)

Next Steps

After the consultation closes on 29 August, the government will refine the proposal based on feedback, seek advice from the Council of State, and submit it to Parliament. Since constitutional changes require a two-stage approval process, the amendment must pass votes in both the current and next cabinet terms before taking effect.