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The Constitution of the Kingdom of The Netherlands (from here on referred to as "the constitution" was created in 1814. However, the version that currently governs The Netherlands is from 1983.

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The Constitution is the most important state document and the highest law in the Netherlands. It dates from 1814. The version of the Constitution currently in force dates from 1983. It combines the rules governing the Dutch system of government and fundamental rights.

The Constitution contains:

Fundamental rights that give individuals the freedom to live and to take part in society and politics without interference from government. Fundamental rights include:

freedom of expression;

the right to privacy;

the right to vote and to stand for election;

the right to equal treatment.

Important rules on the organisation of the Dutch system of government, such as:

how representatives of state institutions (such as parliament, government and the courts) are elected or appointed and what their duties and powers are;

how laws are made and how the Constitution itself can be amended;

how provinces and municipalities are governed.

The Constitution is subordinate to the Charter for the Kingdom of the Netherlands, which regulates the constitutional relationship between the different states constituting the Kingdom, i.e. the Netherlands, Curaçao, St Maarten and Aruba.

Fundamental rights

Chapter 1 of the Constitution lays down the rights of all persons in the Netherlands. These 'fundamental rights' are principally human rights and democratic rights. They include freedom from discrimination, freedom of religion and expression and the right to privacy. Social rights, such as the right to housing and health care, are also laid down in the Constitution.

No review of constitutionality of primary legislation

The courts cannot review primary legislation to see whether it is compatible with the Constitution and then declare it unlawful if it is not. Such review is permitted in most other countries in the European Union.

Amendment of the Constitution

The legislative procedure to amend the Constitution differs from that for ordinary legislation. The Constitution is revised in two stages, or readings. At second reading, a majority of two-thirds is required in both the Senate and the House of Representatives.

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The Constitution is the most important state document and the highest law in the Netherlands. It dates from 1814. The version of the Constitution currently in force dates from 1983. It combines the rules governing the Dutch system of government and fundamental rights.

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The Netherlands existed prior to The French Empire (which ruled over NL for its period of power), but the Netherlands we know today is from after it was annexed by the Empire. The King decided that because of that rule, they needed a constitution.

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The Constitution for the Kingdom of the Netherlands ( Dutch: Grondwet voor het Koninkrijk der Nederlanden) is one of two fundamental documents governing the Kingdom of the Netherlands as well as the fundamental law of the European territory of the Kingdom of the Netherlands. It is generally seen as directly derived from the one issued in 1815, constituting a constitutional monarchy; it is the third oldest constitution still in use worldwide.

A revision in 1848 instituted a system of parliamentary democracy. In 1983, a major revision of the Constitution of the Netherlands was undertaken, almost fully rewriting the text and adding new civil rights. The text is sober, devoid of legal or political doctrine and includes a bill of rights. It prohibits the judiciary to test laws and treaties against the constitution, as this is considered a prerogative of the legislature. There is no constitutional court in the Netherlands, except for the Constitutional Court of Sint Maarten which only governs the Sint Maarten legislature. The Kingdom of the Netherlands also includes Aruba, Curaçao and Sint Maarten: there is an overarching instrument of the entire kingdom that has constitution characterisics: the Statute of the Kingdom of the Netherlands.

The first constitution of the Netherlands as a whole, in the sense of a fundamental law which applied to all its provinces and cities, is the 1579 constitution, which established the confederal republic of the Seven United Provinces. The constitution was empowered by the Union of Utrecht, thus by treaty. Article XIII of the treaty granted each inhabitant of the Republic freedom of conscience.

After the French invasion of 1794 the Batavian Republic, a unitary state, was proclaimed. On 31 January 1795 it issued a bill of rights, the Verklaring der Rechten van den Mensch en van den Burger. On 1 May 1798 a new constitution, the first in the modern formal sense, the Staatsregeling voor het Bataafsche Volk, written by a Constitutional Assembly, went into force, approved by the National Assembly. The Napoleonic Kingdom of Holland, a constitutional monarchy, was established by the Constitutie voor het Koningrijk Holland on 7 August 1806. In 1810 the kingdom was annexed by the French Empire.

After the French troops had been driven out by Russian Cossacks, the new independent state of the Netherlands, a principality, was established by the constitution of 29 March 1814, the Grondwet voor de Vereenigde Nederlanden. William VI of Orange, instated on 2 December 1813 as "Sovereign Prince" by acclamation, and only accepting "under the safeguard of a free constitution, assuring your freedom against possible future abuses", had first appointed a number of men of good standing as electors and these approved the constitution, written by a commission headed by Gijsbert Karel van Hogendorp. On 24 August 1815 William - since 16 March King William I of the Netherlands - having proclaimed himself King of the larger United Netherlands six days earlier, issued the first version of the current constitution, the Grondwet voor het Koningrijk der Nederlanden or Loi fondamentale du Royaume des Pays-Bas, establishing the United Kingdom of the Netherlands, now expanding his realm with the territory of the present state of Belgium, which would again secede from it in 1830. It included a limited unentrenched bill of rights, with freedom of religion, the principle of habeas corpus, the right of petition and freedom of the press as its main points. In the Treaty of London of 1814 the Allies had ordered that the original Dutch state would devise the new constitution. It had been approved by the new States General (consisting of 55 members) of the Northern Netherlands, but rejected by the majority of appointed electors (796 against 527) of the Southern Netherlands. As 126, however, had indicated that they were against because of the (by them still considered too limited) freedom of religion, which was mandatory under the Treaty of Vienna that ordered the union of the Northern and the Southern Netherlands, their votes and those of the men having refused to vote, were added to the minority, and by this infamous "Hollandic Arithmetic" William felt justified to proclaim the new kingdom.

Regarding the government's political structure the 1815 constitution did not diverge much from the situation during the Republic: the 110 members of House of Representatives ( lower house) of the States General, the "Second Chamber" as it is still called, were still appointed by the States-Provincial (for three years; each year a third was replaced), who themselves were filled with nobility members or appointed by the city councils, just like under the ancien régime. However, now also some rural delegates were appointed to all States-Provincial (first only true for Friesland) and the city councils were appointed by electoral colleges which were in turn elected by a select group of male citizens of good standing and paying a certain amount of taxes, so very indirectly there was a modicum of democracy introduced to the system. In all the administration was very monarchical, with the king appointing for life the members of the Senate, the "First Chamber", that mockingly was called the Ménagerie du Roi. In 1840, when a new revision was made necessary by the independence of Belgium, a first step to a more parliamentary system was taken by the introduction of penal ministerial responsibility.

The constitution as it was revised on 11 October 1848 is often described as the original of the version still in force today. Under pressure from the Revolutions of 1848 in surrounding countries, King William II accepted the introduction of full ministerial responsibility in the constitution, leading to a system of parliamentary democracy, with the House of Representatives directly elected by the voters within a system of single-winner electoral districts. Parliament was accorded the right to amend government law proposals and to hold investigative hearings. The States-Provincial, themselves elected by the voter, appointed by majorities for each province the members of the Senate from a select group of upper class citizens. A commission chaired by Johan Thorbecke was appointed to draft the new proposed constitution, which was finished on 19 June. Suffrage was enlarged (though still limited to census suffrage), as was the bill of rights with the freedom of assembly, the privacy of correspondence, freedom of ecclesiastical organisation and the freedom of education.

In 1884 there was a minor revision. In 1887 the census suffrage system was replaced by one based on minimal wealth and education, which allowed an ever-growing percentage of the male population to be given the right to vote; therefore this provision was at the time nicknamed the " caoutchouc-article". The election interval for the House of Representatives was changed from two (with half of it replaced) to four years (with full a replacement of now hundred members). Eligibility for the Senate was broadened. Any penal measure not based on formal law was prohibited.

In 1917, like in 1848 influenced by the tense international situation, manhood suffrage was introduced combined with a system of proportional representation to elect the House of Representatives, the States-Provincial and the municipality councils. The Senate continued to be elected by the States-Provincial, but now also employing a system of proportional representation, no longer by majorities per province. The Christian-democrat parties allowed manhood suffrage in exchange for a complete constitutional equality in state funding between public and denominational schools, ending the bitter " school struggle" which had antagonised Dutch society for three generations.

By the revision of 1922 universal suffrage was explicitly adopted in the constitution, after it had already been introduced by law in 1919. Each three years half of the members of the Senate were to be elected by the States-Provincial for a period of six years, within a system of proportional representation.

In 1938 there was a minor revision, introducing some elements of the then fashionable corporatism by giving a constitutional base to public bodies regulating sectors of the economy. A proposal to make it possible to impeach "revolutionary" members of representative bodies, directed against communists and fascists, failed to get a two-thirds majority.

After the Second World War in 1946 a revision failed attempting to simplify the revisional procedure. However, a change was accepted allowing to send conscripts to the colonial war in the Dutch East Indies.

In the revision of 1948 a complete new chapter was added to facilitate the incorporation of the new state of Indonesia within the Kingdom. Soon it would become irrelevant as Indonesia severed all ties with the Netherlands in 1954. Also the revision created the office of secretary of state, a kind of subminister or junior minister but one fully subordinate to a certain minister.

In 1953 new articles were introduced concerning international relations, as the Netherlands was abandoning its old policy of strict neutrality.

In the revision of 1956 the constitution was changed to accommodate the full independence of Indonesia. The number of members of the House of Representatives members was brought up to 150, of Senate members to 75.

The revision of 1963 accommodated the loss of Dutch New Guinea to Indonesia. The voting age was lowered from 23 to 21.

In 1972 there was a minor revision; the main change was a lowering of the voting age to 18.

In 1983 the constitution was almost entirely rewritten. Many articles were abolished. Social rights were included, most articles were reformulated (the main exception being article 23 about the still sensitive freedom of education) using a new uniform legal terminology and their sequence was changed. The bill of rights was expanded with a prohibition of discrimination, a prohibition of the death penalty, a general freedom of expression, the freedom of demonstration and a general right to privacy.

In 1987 there was a minor revision. In the revision of 1995 the introduction of a professional army, replacing the conscript army, was regulated. In the revision of 1999 a proposal to introduce an advisory referendum was rejected by the Senate. After a minor revision in 2002, the last changes were made in 2005; a proposal to introduce an elected mayor was rejected by the Senate.

Some of the most basic fundamental laws in the Dutch constitutional system are not explicitly expressed in the written Constitution. These include the rule that the Dutch monarch cannot dissolve the House of Representatives more than once because of a conflict over a single political issue and that the Senate shall never block legislation for mere party politics, so that coalition governments (all Dutch governments since the 19th century) do not need a majority in the Senate.

The unwritten laws are most influential when a cabinet is formed; the procedure is not regulated by the Constitution but based on tradition and more recently on regulations established by the House of Representatives. At the eve of the elections the sitting cabinet offers its resignation to the monarch, who takes it into consideration; the cabinet is now " demissionary". After the elections the King consults his advisors. The chairman of the House of representatives then appoints an " informateur" who explores the possibilities of a coalition cabinet. Because of the Dutch multi-party system, no political party (in the modern sense) has ever obtained a majority by itself. On the basis of the information process the chairman then appoints a " formateur" who literally forms the government by negotiating a coalition agreement between the coalition parties and the division of the ministerial posts between the parties. He also meets with candidate ministers and often becomes Prime Minister himself. The King then dismisses the sitting cabinet and appoints the new one. If the procedure turns out to be problematic, the House can ask the king to play a role in the formation process.

In common law systems these rules would not be seen as laws but as mere legal conventions as they cannot be upheld by judges; within the Dutch civil law system, however, they are part of the more extended Dutch-German legal concept of the , the total "legal" normative structure, be it written or unwritten, so that they have full normative force. Indeed, that force is much larger than with written constitutional rules; any breach of the unwritten rules would cause an immediate constitutional crisis.

Systematics and terminology

Civil law systems are characterized by their emphasis on abstract rules and methodology. Since the Second World War there has been a dominant movement within the Dutch legal community to be fully consistent in this and incorporate the total of case law accumulated over the years, while the old law books derived from the French Code Napoleon remained basically unchanged, into a completely new set of modern codes. There has been a general tendency to strive for economy of style, clarity of expression, conceptual coherence and unity of terminology. The complete revision of the Dutch constitution in 1983 is part of this process. Combined with an absence of explicit legal doctrine the result can be deceptive, as the simple phrasing hides the underlying implicit doctrine.

Because there is no Constitutional Court testing laws and acts against the constitution, much of the systematics are centered on the problem of delegation. If the legislative were allowed to delegate its powers to the government or to lower decentralized bodies, this would threaten democratic legitimacy and the constitutional protection of the citizen (as citizens have no recourse to a Constitutional Court). Therefore, delegation is only allowed if articles contain the terms "regulate" or "by force of law"; otherwise it is forbidden. This rule itself, however, being legal doctrine, is not explicitly included anywhere within the written law and is only found in the official commission reports and ministerial commentaries accompanying the bill.

Chapter 1 is mainly a bill of rights. There is no normative hierarchy indicated by the constitution: all basic rights are principally equal in value and importance. Some rights are absolute, most can be limited by parliamentary or "formal" law, many can be limited by delegation of limiting powers. They include:

Equality before the law and prohibition of discrimination (Article 1). This article forbids any discrimination on any grounds but allows affirmative action. This right can only be limited by law, if there is an objective, reasonable justification for restricting it. In that case, the court will decide if the law is suitable, necessary and in proportion to reach the purpose of the law. Article 3 stipulates that any citizen is eligible to any public function. Nationality itself is based on article 2.

The right to vote (Article 4). The right can be limited by formal law; no delegation is allowed.

The right of (written) petition (Article 5). This ancient right is absolute and cannot be limited by law. The right of petition has a long tradition in the Netherlands; indeed the Dutch War of Independence started after a petition had been rejected by the Habsburg authorities, the noble petitioners having been contemptuously treated as "beggars" (). The constitution of 1815 limited the ancient right to written petitions, hoping to curtail the typical disorder created by large groups of delegates. Nevertheless, such public mass petitioning has always remained very popular. The right of petition does not imply an accompanying right to be answered, but in practice all public bodies have special commissions to do just that. Often petitions are directed to the King, although the system of ministerial responsibility makes it impossible for him to take action by himself; his secretarial cabinet relegates such petitions to the relevant ministries.

Freedom of religion (Article 6). This right can be limited by formal law; delegation is possible.

Freedom of speech (Article 7). This article has only been partially changed in the 1983 revision, as it was linked to very complicated case law. Subarticle 1 contains the classic freedom of the press. Any censorship is absolutely forbidden. However, formal law can otherwise limit this freedom, e.g. by making a certain content punishable under penal law. Such limiting powers cannot be delegated to lower administrative bodies such as municipalities; the related right of distribution of printed materials can similarly only be limited by formal law. However, the Supreme Court has nevertheless ruled since 1950 that such bodies may in fact limit the distribution of materials, if such a limitation is not based on the content of those materials and does not imply a complete impediment to any separate means of distribution. They may for instance limit the spreading of pamphlets to certain hours for reasons of public order. Subarticle 2 has the same arrangement for television and radio broadcasts. Subarticle 3, added in 1983, gives a general right of expression, for those cases where neither printed nor broadcast information is involved; this includes the freedom of speech. Again, no censorship is ever allowed, but the right can otherwise be limited by formal law; explicitly mentioned in subarticle 3 is the possibility to limit the viewing of movies by minors under the age of sixteen. Although no delegation is possible, lower bodies may limit the exercise of the right for reasons of public order if such limitations are not based on the content of the expressed views. Subarticle 4 states that commercial advertising is not protected by article 7. The Dutch constitution does not contain a freedom of gathering of information.

Freedom of association (Article 8). This right can be limited by formal law, but only to safeguard public order. No delegation is allowed. Almost any organization posing any conceivable danger to public order in the broadest sense is forbidden by the still extant Wet vereniging en vergadering ("Law of association and assembly") of 1855, but this law only very rarely leads to an official disbandment of an organization as a legal entity under the civil code. Dutch legal doctrine holds that the freedom of association does not protect against forced membership of organizations, e.g. when such membership is a condition for being active in a certain profession.

Freedom of assembly and freedom of demonstration (Article 9). The revision of 1983 split the old combination of "freedom of assembly and association" and added the former to a new freedom of demonstration. The right can be limited by formal law. Delegation is allowed but only to protect public health, for traffic concerns and to prevent public disorder.

Right to privacy (Article 10). This right, introduced by the revision of 1983, is a general right to be protected whenever the personal integrity is threatened. The right can be limited by formal law. Delegation is allowed, but only in relation to databases. The article imposes a duty on the government to protect against a threat to privacy posed by a possible abuse of databases (subarticle 2); and to regulate the right of persons to be informed about the content of such databases concerning their person and the right to improve possible mistakes in such content (subarticle 3).

Inviolence of the (human) body (Article 11). This right, introduced by the revision of 1983, can be limited by formal law; delegation is allowed. The right is a subspecies of the general right to personal integrity expressed in article 10, so no dichotomy is intended between the two concepts. It protects against violations like forced medical experiments, corporal punishment, torture and mutilation. It does not end with death and thus demands a legal basis for organ donation.

Prohibition of unlawful entry of the home when no permission of the inhabitant has been obtained (Article 12). Although often presented as a general "right of the home", this article is in fact more based on the principle that the authorities do have a fundamental right to enter homes, but that this must be given a legal basis. The law has to indicate in which case and by which persons entry is legal. Delegation is allowed. Dutch courts tend to give precedence to the practicality of police investigation, so this article has had little protective value.[citation needed ]

Secrecy of communication (Article 13). Subarticle 1 contains the privacy of correspondence. This can only be violated on order of a judge and only in those cases indicated by formal law. No delegation is allowed. The judge in question is rarely a court but in practice the investigative judge (rechter-commissaris). The Dutch penal code offers a further protection of this right as several types of violating it are punishable as crimes. Subarticle 2 contains the privacy of communication by telephone and telegraph. This right can be limited by law; such law has to indicate which persons have the authority to allow a violation. No delegation is allowed. For most cases again the investigative judge has the competent authority. Since the nineties there is doctrinal consensus that the right extends to cell phone communication, but earlier this was contended. In practice the Dutch police taps any telephone communication at will, irrespective of authorisation and with full cooperation of the telephone companies.[citation needed ] Although this situation is embarrassing from a constitutional point of view, authorities and courts are hesitant to act against it, for reasons of practicality. However, it has often been ruled that information thus gained cannot be admissible as evidence in court.

Prohibition of unlawful expropriation (Article 14). The Dutch constitution contains no general right to property. This has been defended by successive governments with the argument that such right is so fundamental to Dutch society that it is redundant to explicitly mention it. Expropriation is only allowed to serve the public interest and on the condition that prior formal assurance is given of (full) indemnity, meaning that some exact sum has to be determined. It has to be based on law; delegation is allowed, but only as regards the indemnity determination procedure, not the expropriation as such. Subarticle 2 states, however, that in an emergency situation the prior assurance has not to be given - in those cases the amount of compensation will be determined later. Subarticle 3 extends this arrangement to cases of destruction, partial damage, total loss and limitations of the right to property, caused by the competent authority to serve the public interest. Normal cases of damage are ruled by the civil code.

Right to liberty (Article 15). This right can be limited by formal law. Delegation is allowed since the revision of 1983. Subarticle 2 safeguards access to the competent judge for anyone detained; this judge has the power to order the release of the detainee, like in the common law habeas corpus doctrine. In fact all relevant laws order the authorities to obtain approval from the judge within a certain time limit, but deny to the detainee access by his own initiative until that limit has been reached. Subarticle 3 contains the penal law obligation of the authorities to ensure that a trial takes place and is finished within a reasonable period of time. This right cannot be limited by law. In fact the Dutch penal code contains loopholes making it possible to delay trials indefinitely.[citation needed ] Subarticle 4 states that all basic rights of a detainee can be limited in the interest of his detention.

Nulla poena sine praevia lege (Article 16). This fundamental principle of legality (which requires that one cannot be punished for doing something that is not prohibited by law), already present in the penal code and introduced to the constitution in the revision of 1983, is absolute and cannot be limited by law. However, at the same time, the additional article IX was added to the constitution making an exception for war crimes and crimes against humanity.

Ius de non evocando (Article 17). This ancient right states that no one can against his will be kept from the competent court. It cannot be limited by law - but law decides which court is competent.

In addition to these classic rights the revision of 1983 introduced a number of social rights. The distinction between the two categories is not strictly based on any legal doctrine and in fact the social right articles contain many freedom rights. The social rights are:

Right to counsel (Article 18). Subarticle 1 contains a freedom right: anyone has the right to be legally assisted or represented in court or during administrative appeal. This right is absolute and cannot be limited by law. Nevertheless, the law may impose qualification requirements on legal representatives so that e.g. only attorneys are allowed to represent. Subarticle 2 contains the right to legal aid for the destitute. The right can be limited by formal law; delegation is allowed. However, doctrine holds that the State has an absolute duty to provide a minimum of legal aid.

Labour rights (Article 19). Subarticle 1 imposes a duty on the government to ensure sufficient employment. This does not imply a right to be employed for the individual. Subarticle 2 demands that laws are made regarding the legal position of workers, including the protection of workers against accidents and workers' participation. Subarticle 3 contains a general freedom right to labour. This right can be limited by formal law; delegation is allowed. The right is limited to those of Dutch nationality, so in principle foreign nationals can be denied access to the labour market. The law in fact denies such access to illegal immigrants and asylum seekers.

Welfare of the people (Article 20). Subarticle 1 imposes a duty upon the government to ensure the subsistence of the population and an adequate distribution of wealth. Subarticle 2 demands that laws are made concerning the entitlements to social welfare. Delegation is allowed. Subarticle 3 contains a right to welfare for the destitute. The right can be limited by formal law; delegation is allowed. The government has a duty to make a law implementing the right. The right is limited to those Dutch nationals living in the Netherlands.

Environmental protection (Article 21) This article imposes a duty on government to ensure the habitability of the land - including the general infrastructure and especially the vital sea-defences - and the protection and improvement of the environment. Doctrinal consensus holds that "improvement" implies that government is not allowed to make environmental laws much less strict.

Health, housing, culture and recreation (Article 22). This is a wastebasket article combining rights that were too important to remain unmentioned, but too unimportant to warrant a separate article status. Subarticle 1 imposes a duty upon government to improve public health. Subarticle 2 does the same for living conditions and subarticle 3 for "cultural self-realisation" and recreational activities.

Freedom of education (Article 23). The Dutch education system is characterized by ideological divisions. The constitutions of 1814 and 1815 expressed the principle of neutral state education; even in private schools giving a full curriculum religious education was forbidden. Parents wanting their children to be given some formal religious instruction had to send them to special bible classes in Sunday schools. In the revision of 1848 the freedom of education was first expressed. However, this was a negative right: parents were at liberty to let their children be educated in denominational schools, but had to pay for this themselves, whereas state schools offered free education. As the frame of government grew ever more democratic, this arrangement proved untenable in the gradually becoming more "pillarised" Dutch society. The school system became the central battleground of political change: the school struggle between elitist neutral liberals and conservatives on the one and mass-oriented confessional protestants and Catholics and eventually socialists on the other hand. In 1889 a system of school funding for denominational schools was introduced; in the revision of 1917 this was formalised by a guarantee of full constitutional equality between public and special schools: the Pacification. Even in 1983 this issue remained so sensitive that government and parliament failed to reach consensus over a changed redaction. As a result, Article 23 remained unchanged. It is therefore outside of the uniform terminology and systematics of the renewed constitution: some elements of Article 23 are absolute rights, others can be limited by law, for some this limitation can be delegated to lower administrative bodies - but it is impossible to understand from the article itself what is the situation for each element; this can only be learned from case law and doctrine. Absolute is the right to education itself (subarticle 2), the equality between public and special schools and the duty of the State to finance them all. The right to education is primarily a right to give education of any kind; the right to be educated is seen as derived; parents are free in the choice of schools. The right implies the right to found schools, the right to freely choose their underlying religion or philosophy of life and the right to organise them in accordance with such religion or philosophy. So not all "special" schools are denominational; some are e.g. anthroposophic or platonist. All have to be funded by government and with the strictest equality (subarticle 7); until recently law stated that this equality was nominal, meaning that if a municipality spent a certain sum per student in public schools, exactly the same sum had to be spent in its special schools. The right can be limited by formal law in that minimal quality requirements can be imposed (subarticle 5), both as regards the level of education and the standard of organization. Some of this power is in fact delegated to lower bodies; one of the breaking-points in 1983 was the refusal of parliament to express this in the constitution. The duty of State to (equally) fund is limited to free compulsory education (presently until the age of sixteen); Subarticle 7, however, states that law will specify the conditions under which non-compulsory education will be funded; unsurprisingly there is in fact in this field also strict equality. Subarticle 1 expresses the social right that education in general is an ongoing concern for the government; Subarticle 4 states that municipalities have the duty to provide for sufficient primary schools.

Dutch constitutional doctrine holds that the King and ministers together form the government and this indivisibly, so that the King in any of his public acts always acting under ministerial responsibility is not the Head of Government, but embodies it fully. The King is, however, head of state, and so a special paragraph is dedicated to the King in this quality.

Article 24 stipulates that there is kingship and that this kingship is held by William I of the Netherlands and his lawful successors. Articles 25 and 26 regulate the line of succession to the Dutch throne; since 1983 female successors have equal rights to the throne. Further articles regulate abdication (Article 27); parliamentary approval of royal marriage on penalty of loss of the right to the throne (Art. 28); the exclusion of unfit possible heirs (Art. 29); appointment of a successor if heirs are absent (Art. 30 and 31); the oath and inauguration in the capital of the Netherlands, Amsterdam (Art. 32); the age of royal majority at eighteen (Art. 33); guardianship over a minor King (Art. 34); declaration by Parliament of the King's inability (Art. 35); temporary relinquishment of the exercise of royal authority (Art. 36); regency (Art. 37 and 38); the membership of the Royal House (in practice mainly consisting of members of the House of Orange) (Art. 39); its payment (Art. 40) and the organisation of the royal household by the King (Art. 41).

Article 42 states the main principles of Dutch government: that it is formed by King and ministers (Subarticle 1) and that "the King is inviolate; the ministers are responsible" (Subarticle 2). Before 1848 the inviolacy of the King was interpreted as a judicial one: he could never be tried in court for whatever reason. This is still so, but ministerial responsibility implies there is since the revision of 1848 primarily a political inviolacy. This means that the King cannot act in a public capacity without ministerial approval: externally the governmental policy is always represented by the responsible minister who, should he feel that the King's personal influence in it threatens to become too predominant, has to resign if he cannot prevent it; what happens internally between King and ministers is the Crown Secret, never to be divulged. What little of it nevertheless has come to the public attention, shows that the common conception that the kingship since the reign of William III of the Netherlands has in fact been almost fully ceremonial, is not supported by the facts. Often it is assumed that there is a "derived ministerial responsibility" for all members of the Royal House.

The Prime Minister and the ministers are appointed and dismissed by Royal Decree (Article 43). Such decrees are also signed by the Prime Minister himself, who signs his own appointment and those of the others (Article 48). Royal decree also institutes the ministries (Article 44), which have tended to be very variable in number and scope, and non-departmental ministers (Subarticle 2), who officially have no ministry but whom in fact is assigned the necessary personnel and who sign and are responsible for a partial budget. The ministers together form the Council of Ministers (Article 45), presided by the Prime Minister (Subarticle 2), which assembles (in fact weekly) to promote the unity of the general governmental policy (Subarticle 3). Though existing since 1823, this council has only been mentioned since the revision of 1983; its constitutional powers as such are almost nil. The proceedings are secret for a period of fifty years. Outwardly the council acts as if there were complete agreement between all ministers: the so-called "homogeneity". By Royal Decree are appointed secretaries of state (Article 46); these are subordinate to a certain minister who is fully responsible for their acts (Subarticle 2). All laws and Royal Decrees have to be countersigned by the responsible minister(s) or secretaries of state (Article 47). The countersign has been mandatory since the revision of 1840. Since 1983 such laws and decrees also have to be affirmed by a signed affirmation; it is usually assumed these acts coincide. All ministers and secretaries of state have to swear an oath of purification (declaring to not having bribed anyone to obtain their office, nor having been bribed to commit certain acts when in office) and swear allegiance to the Constitution (Article 49).

The individual ministers do not have a (general) executive power, other than that which is attributed to them by special law.

Article 50 states that there are States General and that these represent the whole of the people of the Netherlands. Thus a clear distinction is made to the situation under the confederal Dutch Republic when the States General represented the provinces. Doctrine holds that the article also entails that political parties have to give priority to the public interest, as opposed to the particular interests of their constituents. Article 51 specifies that the States General consist of a House of Representatives of the Netherlands ( lower house), the Second Chamber of 150 members and a Senate ( upper house), the First Chamber of 75 members - the constitution deliberately mentions the House of Representatives first to emphasize its political primate. Subarticle 4 mentions that both Houses can gather in an indivisible United Assembly of 225 members, a joint session necessary to perform some acts, such as the appointment of a new King in absence of royal heirs. When in United Assembly the President of the Senate is President of the States General (Article 62); the House of Representatives has tried to change this in the revision of 1983 but has twice been defeated by the Senate defending its privilege. The Houses sit for four years (Article 52). They are elected on basis of proportional representation (Article 53) and by a secret ballot (Subarticle 2). The House of Representatives is elected by all Dutch citizens over the age of eighteen (Article 54), except those who have been disqualified by a court sentence as part of their punishment for a crime or those who have been declared incapable by court because of insanity (Subarticle 2). Formal law can limit the right to vote to resident nationals only but presently does not. The Senate is elected by the States Provincial (Article 55).

To be eligible to be elected it is necessary to be of Dutch nationality, to be over eighteen in age and not to have been excluded from the right to vote (Article 56); there are also certain incompatibilities of function (Article 57), the most important of which is that a minister not belonging to a demissionary cabinet cannot be a member of the States General, a stark contrast with the situation in United Kingdom or Germany, but in line with the United States. This principle underlies the political dualism of Dutch politics. The Houses investigate the Letters of Credence of new members, in this case a written affirmation by the central voting office that they have indeed obtained the necessary number of votes. After the investigation new members swear four oaths: the oath of purification, the oath of allegiance to the Constitution and the oath of loyal discharge of their office are demanded by Article 60; the oath of loyalty to King and Statute is demanded by Article 47 of the Statute of the Kingdom, the higher Constitution of the Realm. All other issues pertaining the elections are regulated by formal law; delegation is possible (Article 59).

Each House appoints its own President from its members (Article 61) and a clerk, not from its own members; no officials of the States General may be member of the States (Subarticle 2). Law regulates the remuneration of the members; delegation is possible; such law can only be approved by a two-thirds majority (Article 63).

Article 64 states that government can dissolve each House by Royal Decree. Within three months elections have to be held (Subarticle 2). The duration of a new House of Representatives after dissolution is determined by law and not to exceed five years (Subarticle 4). The dissolution only takes effect when the new House meets, to avoid a period without representation. Dissolution of Parliament was in the 19th century an instrument for government to decide a conflict with the House of Representatives by submitting the issue to the voter. Unwritten law developed between 1866 and 1868 that this should not be done more than once over the same issue. The last instance occurred in 1894. In the 20th century such "conflict resolution" was replaced by "crisis resolution" whenever a political coalition fell apart and could not be reconciled; the government then resigns and instead of trying to find a new coalition majority, decides on holding new elections, normally in accordance with the wishes of parliament itself. Earlier typically an "interim cabinet" was formed to arrange for the elections, but this hasn't happened since 1982.

Article 65 states that the parliamentary year is opened on the third Tuesday of September (Prinsjesdag) by the King holding the Speech from the Throne. The same day the minister of finance presents the yearly national budget. The sessions of the States General are public (Article 66), but the session will be secret () when the House in question so decides (Subarticle 3) which can be proposed by a tenth of the quorum or the President, on which proposal the doors are closed immediately for the vote (Subarticle 2). Normally there is a quorum of a half to start a session or to take any decision (Article 67). Decisions are taken by majority (more than half of the votes, Subarticle 2) and without mandate (Subarticle 3) - a reference to the situation under the Republic when each delegate had to vote on instruction from the nobles or city councils he represented. On demand of a single member the vote must be oral and by roll call; no member may abstain.

The States General have an absolute right to information from the government in writing or in person, only constitutionally limited by State interests, such as the national security (Article 68). Doctrine holds that there can also be "natural impediments" justifying that a minister fails in answering questions, such as the circumstance that he simply doesn't know the answer, that he has already answered or that he is about to answer much more completely by issuing a written report on the question. Another doctrinal limitation is the ministerial responsibility: a minister is not obliged to give information about a subject for which not he is responsible but his colleague. Government members have access to the sessions and can freely partake in the discussions (Article 69); they can also be invited to do so by the Houses (Subarticle 2). Such an invitation is in fact an order: government members are not at liberty to refuse. They do however have the right to invite any expert to assist them in the discussions (Subarticle 3). All persons partaking in the deliberations of parliament or in the parliamentary commission meetings have legal immunity regarding any communication they made, either in speech or in writing (Article 71). Otherwise the members have no parliamentary immunity.

The States General have the right of inquiry (Article 70). They can by majority vote empower a commission that in public or secret hearings can investigate any subject. Any person in the Realm is obliged to appear and answer their questions; it is a crime not to obey. This right can be limited by formal law; delegation is possible. Sixteen such inquiries have been held since 1848, one of them, about the events in the Second World War, lasting from 1947 till 1956.

The Houses each determine their own Rules of Procedure (Article 72). As the legislative is in the Netherlands formed by parliament and government in cooperation, these Rules of Procedure are not formal laws but have a sui generis "legal" status.

Chapter 4: Council of State, Court of Audit, National Ombudsman and Permanent Advisory Colleges

Chapter 4 covers certain other High Councils of State apart from parliament. The most important of these is the Council of State ( Raad van State). Any proposal of law in the broadest sense and any proposed treaty is in principle first submitted to the Council of State for legal comment; this can be limited by formal law, which however only does so for trivial cases (Article 73). Though officially such comment is merely an advice, it is very rare for law proposals to remain unchanged if the judgment of the council is negative. The council is seen as the guardian of legislative quality; no minister can ignore its opinion without dire effects on his own reputation. Thus the Council in fact codetermines the legislative process. The council also acts as the highest court for administrative appeal (Subarticle 2 and 3); it thus has the final say on the way the country is actually ruled, though this is limited by the fact such appeals can only be made on formal or procedural grounds. The large influence of the council is not always appreciated by external and internal observers. If the King is unable to exert the royal authority and there is as yet no regent, the Council exerts the royal authority (Article 38). The council is officially presided by the King (Article 74); in view of the ministerial responsibility he in fact only does so on special occasions: normally the current chairman is the vice-president of the council, some times by journalists called the "Viceroy of the Netherlands". The probable heir becomes a member of the Council when he reaches the age of eighteen and often does attend the meetings. Law can give other members of the Royal House the right to attend; it in fact determines that they nor the heir have voting powers. The members of the council, the Staatsraden, are appointed by Royal Decree for life (Subarticle 2); they can be dismissed on demand by Decree, or in cases determined by law by the Council itself, and law can determine an age limit (Subarticles 3 and 4). The competence, organisation and composition of the council are regulated by law; delegation is possible (Article 75). This competence may exceed the functions indicated in Article 73; in this case no delegation is allowed (Subarticle 2). The number of Staatsraden is determined by law at a maximum of 29 ordinary members and 50 extraordinary members.

The second is the Court of Audit ( Algemene Rekenkamer). Its task is to perform financial audits (Article 76). The members are appointed for life by Royal Decree from a shortlist of three, proposed by the House of Representatives (Article 77). They can be dismissed on demand by Decree or when reaching an age determined by law (Subarticle 2); or dismissed by the Supreme Court in certain other cases determined by law (Subarticle 3). Law determines the organisation, composition and competence of the Court of Audit (Article 78); delegation is possible; this may exceed the functions indicated by Article 76; in this case no delegation is allowed (Subarticle 2). In fact the Court of Audit not only performs financial audits but also "value for money" efficiency analyses; it also reports on the effectiveness of all governmental policy via performance audits. Dutch legal doctrine believes in a clear distinction between efficiency and effectiveness reports and this is reflected in two separate types of investigation carried out. The budget as such is always officially approved, be it with "comments" when irregularities have been discovered; these then have to be remedied by special law. The effectiveness reports, carried out in great detail, in full independence and without the slightest regard for political sensitivities, have given the Court of Audit a large political influence, even more so than the British National Audit Office.

The third is the National Ombudsman, a relatively new function; he may investigate by his own initiative or on request of anyone, the actions of State bodies or other governmental bodies indicated by law; this indication can be delegated (Article 78a). The ombudsman and his substitute are appointed by the House of Representatives for a certain period of time, to be determined by law. They are in any case dismissed by the House of Representatives on demand and when reaching a certain age (Subarticle 2). Law determines the competence of the ombudsman and the way he proceeds; delegation is allowed (Subarticle 3). His competence may by law be determined to exceed that given in Subarticle 1; delegation is allowed (Subarticle 4) - in contrast with the arrangement given for the Council of State and the Court of Audit.

The constitution has a general Article 79 founding the establishment of other advisory bodies, the "permanent advisory colleges". The law regulates the organisation, composition and competence of these bodies (Subarticle 2); other competences than mere advisory ones may be attributed by law (Subarticle 3); in both cases delegation is allowed. There used to be a great many of these advisory bodies; after 1996 their number was brought back to a few to economise. The advice of all bodies indicated in Chapter 4 is in principle public; the law regulates the way it is published; delegation is allowed (Article 80); it is submitted to the States General (subarticle 2).

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 referenda are held, like the one in 2005 in which the people advised to reject the 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 right of amendment; government too may 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.

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 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 " 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 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 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 objectors; 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 missions (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 billeting) 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 article". It imposes that that private law, penal law and the separate procedural laws 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 codes 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 servants, 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 and The Order for Loyalty and Merit. Each year many thousands are honoured by the constitutional orders.

This chapter regulates the Dutch judicial system. The central subject is the relation between the judiciary and other courts. The term "judiciary" is not meant to indicate the Judicial of the Trias politica, but rather a purely organisational complex of judicial institutions: those courts are simply part of the judiciary that are designated as such by formal law (Article 116). Their organisation, composition and competence is regulated by law; delegation is possible (Subarticle 2). However, one safeguard that is typical of the Judicial, to guarantee its independence, is also characteristic of the Dutch judiciary: its members are appointed for life (Article 117); they can resign voluntarily or will be fired at an age determined by law (Subarticle 2); present law prescribes an age of seventy. Other principles, like impartiality, are not explicitly mentioned in the constitution. The law regulates to which extent persons who are not members of the judiciary, partake in its rulings; delegation is possible (Article 116, sub 3). This refers to (scientific or other) experts on a certain subject, not to a system of jury trials, which is absent in the Netherlands.

Article 112 states the main principle: the power to judge disputes of private law and the law of obligations is exclusively attributed to the judiciary (subarticle 1); formal law can attribute other judicial powers to either the judiciary or other courts; delegation is possible as regards the regulation of the procedures and the implementation of rulings (subarticle 2). Doctrine holds that the competence of the court is determined by the nature of the legal rule on which the plaintiff founds his claim. This implies that even in administrative disputes the citizen can always assure some legal resort, simply by bringing a tort action against the State: the judiciary is then competent. Article 115 states that in the cases covered by Article 112, sub 2, always some administrative appeal is possible. However, it does not guarantee a decision by an independent court: on 23 October 1985 the European Court of Human Rights ruled that the Crown Appeal by the Council of State, then by exclusion the highest administrative appeal court, lacked the necessary independence. This necessitated a complete revision of the Dutch administrative court system, resulting in a much expanded access to independent administrative courts.

Article 113 exclusively attributes also the power to judge offences to the judiciary. However, law can regulate the establishment by government of disciplinary courts outside of the judiciary. Delegation is possible (Subarticle 2). The judiciary is attributed the exclusive right to impose a punishment entailing a deprivation of liberty (Subarticle 3). This does not refer to forms of detention that are not punitive in nature. Law may regulate exceptions to the provisions of Article 113 in case of trials held outside of the European territory of the Netherlands or of proceedings of martial law; delegation is possible (Subarticle 4).

Article 114 entails a civil right: the prohibition of the death penalty, included by the constitutional revision of 1983 after the death penalty itself had already been abolished in 1870. The article is not a guarantee, as doctrine holds that in a state of emergency any right might be suspended by unwritten constitutional emergency law; also in principle some treaty might oblige the judge to impose the death penalty. However, in fact the Netherlands has ratified the Sixth Protocol of the European Convention on Human Rights, also containing a prohibition and having precedence over any other treaty. Therefore, since 1986 no Dutch judge has any formal competence to impose the death penalty. Nevertheless, the Dutch government might by treaty be obligated to cooperate with some international tribunal with the powers to impose the death penalty, such as the International Military Tribunal once was.

Article 118 regulates the Dutch Supreme Court, the Hoge Raad der Nederlanden. Their members are appointed from a shortlist of three, made by the House of Representatives of the States General (Subarticle 1). Formal law determines in which cases the Supreme Court may reverse judgments of lower courts ( cassation) for violation of the law (Subarticle 2). The Supreme Court in revision only decides points of law, not substantial matters. Other duties may be attributed by formal law (Subarticle 3). These other duties in fact include the resolving of conflicts of competence between courts, penal trials against judges for offences committed in office, disciplinary and advisory tasks and the decision in disputes about prizes taken by Dutch vessels. Article 119 attributes the exclusive right to the Supreme Court of trying members of the States General, ministers and secretaries of state, whether incumbent or formal, for offences committed in office. It also states such a trial is instigated by either a Royal Decree or a decision by the House of Representatives.

Article 120 states that no judge will judge the constitutionality of laws and treaties. Therefore, no constitutional review of formal laws is possible; the Netherlands lack a Constitutional Court. However, regulations of lower administrative bodies may be tested against the constitution by the courts. Also any law may be tested against any self-executing treaty, though this rarely happens.

Article 121 states three safeguards for a fair trial: the first is that trials are public. The second is that judgments must specify the considerations and grounds upon which they are based. The third is that any judgment must be pronounced in public. Any exception to these principles can only be made by formal law; no delegation is possible. Article 122 states that pardon is granted by Royal Decree, on advice by a court indicated by law. Formal law regulates the procedure; delegation is possible. Also, an amnesty is possible by a special law or by force of such law; delegation is possible (Subarticle 2).

Chapter 7: Provinces, municipalities, water boards and other public bodies

The Netherlands form a decentralised unitary state, meaning that although the state is not a federation, some bodies have an autonomous power of regulation, either based on a territorial division or on a functional division.

Article 123 states that provinces and municipalities can be established and abolished by formal law, hereby indicating the two levels of territorial division. The twelve Dutch provinces still largely coincide with their medieval predecessors, with the exception of Flevoland, and North and South Holland, which were created in 1815 from Holland; the municipalities have recently been greatly decreased in number. Formal law regulates changes in their boundaries, delegation is allowed (Subarticle 2).

Article 124 states the main principles of decentralisation: provinces and municipalities are competent to regulate and administrate their internal affairs (Subarticle 1), delegation is possible - but only by the provinces and municipalities themselves (Article 128); nevertheless demands, regulated by formal law, can be made by the central government on such regulative and administrative powers; delegation is allowed (Article 124 sub 2). So the lower territorial administrative bodies have on the one hand a relative autonomy - but on the other hand they must work within the national legal framework, loyally implement national government policy and are subject to central control. This is further covered by Article 132: the standard organisation of provinces and municipalities and the composition and competence of their administrative organs is regulated by formal law (Subarticle 1); how they are controlled is regulated by law (Subarticle 2); their decisions shall only be subject to prior supervision in cases determined by law or by force of law (Subarticle 3); their decisions shall only be quashed by Royal Decree and on grounds that they violate the law (in the broadest sense: the recht) or conflict with the public interest (Subarticle 4). Law will in general regulate the kind of provisions to be made if provinces or municipalities fail to meet the demands of Article 124 sub 2 (Subarticle 5). Which taxes may be levied by provinces and municipalities and their financial relationship with the state, are determined by law (Subarticle 6).

Article 125 indicates the main administrative organs of the lower territorial administrative bodies: in the case of the provinces these are the States-Provincial; the municipalities are administrated by the municipal councils. Their sessions are public, except in cases regulated by formal law; delegation is allowed (Subarticle 1). The sessions of the States-Provincial are presided by the Commissioner of the King, those of the municipal councils by the mayor (Subarticle 3). The Commissioner of the King is also part of the provincial administration as are the Deputised States; the mayor is also part of the municipal administration, as is the College of Mayor and Aldermen (Subarticle 2). In this system the administrative organs exert the function of both the executive and legislative (Article 127); however, to form the daily administration they appoint Deputised States (for provinces) or the Colleges of Mayor and Aldermen (municipalities). In 2002 the system underwent a major revision the "aldermen" (wethouders) and States Deputised were no longer allowed to be members of the municipal councils or States Provincial respectively. This makes their function designation a misnomer, although the etymology of the word "wethouder" or "deputised" is no longer commonly understood. The Commissioner of the King and the mayor are officials, appointed by Royal Decree (Article 131). A proposed revision to introduce an elected mayor, recently was rejected by the Senate. The mayor has some legal executive powers of his own, mainly regarding the protection of public order, but these have no direct constitutional basis, they are delegated by the national legislator. Article 126 states, however, that formal law may determine that instructions regarding his office may be given to the Commissioner of the King by the national government. For cases of gross neglect of administrative duty, formal law will regulate the kind of provisions to be made in deviation of Articles 125 and 127 (Article 132, sub 4)

The members of the States-Provincial and the municipal council are directly elected by their constituents. The conditions of the right to elect and be elected are the same as those regarding the elections of the House of Representatives (Article 129 sub 1). However, formal law may give inhabitants of municipalities, that do not have the Dutch nationality, the right to elect, and be elected in, the municipal council, if they meet the other conditions (Article 130). This right has indeed been given to certain categories of foreign nationals, e.g. all citizens of the European Union. The elections take place within a system of proportional representation (Article 129 sub 2); the vote is secret and the organisation of the voting is regulated by law (Subarticle 3). The term of the States-Provincial and the municipal council is four years, unless formal law determines otherwise (Subarticle 4) Law determines possible incompatibilities of function, and may determine that family ties, marriage or the commission of acts indicated by such law may lead to a loss of membership (Subarticle 5). E.g. membership of a municipal council is incompatible with that of the Council of Ministers; a lawyer will lose his membership of a municipal council if he represents his municipality in court. All members vote without mandate (Subarticle 6). This is a reference to the situation under the Republic when the members of the States of a province voted on instruction from the city councils they represented.

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There used to be several additional articles with Roman numbering; however, all except articles IX and XIX are now abrogated.

Each of the four countries within the Kingdom of the Netherlands (The Netherlands, Aruba, Curaçao and Sint Maarten) has its own constitution or "basic law". These constitutions are legally subjected to the Statute of the Kingdom of the Netherlands, which is the constitution of the entire Kingdom. The constitution of the Netherlands is only applicable to the territory in Europe and its public bodies of Bonaire, Sint Eustatius and Saba, since 2010 municipalities, in the Caribbean, except when the Statute does not cover a certain legal subject. The Statute however, mainly describes the relations between the different parts of the Kingdom. In addition it stipulates that each country is obliged to promote human rights, listed in a special bill of rights, and decent governance. The Kingdom of the Netherlands is a federacy, where the central government gives considerable autonomy to some parts of the kingdom (Aruba, Curaçao and Sint Maarten), but retains control over a large part (European Netherlands). There is a Government of the Realm, a Legislative of the Realm and a Supreme Court of the Realm. However, these bodies are only fully formed on special occasions and by appointing special Antillian members to the normal Dutch government, parliament and Supreme Court. One of the members of the Dutch council of ministers is always also appointed a permanent "Minister of Antillian Affairs". Since 1998 this is the Minister of the Interior and Kingdom Relations; when he is acting in this capacity the council has the status of the Government of the Realm to treat minor issues. Though the Statute is in principle higher than the Dutch Constitution, there is no legal mechanism to enforce this. The Dutch Supreme Court has consistently ruled that it is forbidden for judges to test laws and administrative acts against the Statute. However the Government of the Realm can strike void any law of Aruba, Curaçao and Sint Maarten for being incompatible with the Statute. This asymmetry and the fact that foreign affairs and the defence of the Kingdom are administered by the Dutch Government in its capacity of Government of the Realm show that the frame of government of the Kingdom has also elements of a decentralised unitary state. The Statute can only be changed with the consent of all countries within the Kingdom; the laws to this effect can be adopted with a simple absolute majority in each of their parliaments.

Although the constitution itself is the primary body of constitutional law in the Netherlands, it is not the only law that contains constitutional codification. A number of general precepts are encoded in a separate law known as the Law on general precepts (the Wet Algemene bepalingen). These precepts cover a number of varying topics ranging from applicability of different types of laws to persons or territories, to regulations mandating that judges must hear all cases brought before them.

To amend the constitution, the proposed changes must first be approved by both the House of Representatives and the Senate of the States General with a simple majority (more than 50%). This law is called a voorstelwet or 'law to propose changes to the constitution' ( lit. proposal law) and does not alter the constitution, but declares there are sufficient grounds for a certain proposal to change the constitution to be considered. The House of Representatives must then be dissolved and general elections held. The proposed changes to the constitution are then discussed a second time, this time needing a two-thirds majority in both houses of the States General to approve them. This is intended to give voters a say in the matter, by allowing them the opportunity to elect a parliament to vote down the changes if desired. In practice, however, instead of disbanding the House of Representatives and having early elections, the proposal law is simply considered after the next regularly scheduled elections have been held. Consequently, unless early elections are held for some reason (e.g. following the collapse of the government) changes to the constitution can only occur once every four years. In earlier versions of the amendment process, the Senate was also dissolved whenever general elections were held and both Houses had approved a law to propose changes to the constitution. This was deemed a pointless addition to procedure, however, as the Senate is elected by the States-Provincial and the States-Provincial are not dissolved following the adoption of a proposal in parliament ( see elections in the Netherlands). The Senate will therefore invariably have the same composition unless provincial elections are held as well. Neither holding provincial elections specially for this purpose, nor postponing consideration of the proposal to change the constitution until after the regularly scheduled provincial elections is considered a desirable alternative. Changes that involve the relations between the countries of the Kingdom must be proposed by a law formulated by the Government of the Realm.

Koekkoek, A.K. (e.a.) (2000) de Grondwet - Een systematisch en artikelsgewijs commentaar, Tjeenk Willink Deventer

Kortmann, C.A.J.M., (2005), Constitutioneel Recht, Kluwer, Deventer

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Constitution of the Netherlands - Wikipedia

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The Constitution for the Kingdom of the Netherlands ( Dutch: Grondwet voor het Koninkrijk der Nederlanden) is one of two fundamental documents governing the Kingdom of the Netherlands as well as the fundamental law of the European territory of the Kingdom of the Netherlands.

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Almost everything in the "rights" section of the constitution is left to what they call "Act of Parliament". This means that the parliament gets to make decisions as to when the articles are enforced, and when the articles can be infringed upon. Although in Canada parliament does have control over our rights, it is much more minimal than in The Netherlands.

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Other than the fact that almost everything is ruled by Act of Parliament, I found that what stood out most is that Dutch nationality is governed by Act of Parliament, and there aren't many laws that are already laid out.

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When comparing the Netherlands Constitution to the Canadian Charter of Rights and Freedoms, there isn't much that stands out (besides the previously mentioned Act of Parliament situation). All of the rights covered in the CCRF are also covered by the Netherlands Constitution. Something that stood out was the emphasis the constitution placed on education, being its largest article. The CCRF only mentions education when talking about minority language education rights.

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This guide explains the Canadian Charter of Rights and Freedoms (the Charter) and its importance in the daily lives of Canadians. This content is not legal advice and should not be taken as legal interpretation of the provisions of the Charter.

The legal text of the Charter is published online as Constitution Act, 1982.

Contents

Part I - Overview

What is the Canadian Charter of Rights and Freedoms?

The Canadian Charter of Rights and Freedoms sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society.

The Charter is one part of the Canadian Constitution. The Constitution is a set of laws containing the basic rules about how our country operates. For example, it states the powers of the federal, and provincial and territorial governments in Canada.

How does the Charter work with other Canadian laws?

The Constitution is the supreme law of Canada; all other laws must be consistent with the rules set out in it. If they are not, they may not be valid. Since the Charter is part of the Constitution, it is the most important law we have in Canada.

However, the rights and freedoms in the Charter are not absolute. They can be limited to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or child pornography. Section 1 of the Charter says that Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.

Who does the Charter protect and what rights are protected?

Any person in Canada - whether they are a Canadian citizen, a permanent resident or a newcomer - has the rights and freedoms contained in the Charter. There are some exceptions. For example, the Charter gives some rights only to Canadian citizens - such as the right to vote ( section 3) and the right "to enter, remain in and leave Canada" ( section 6).

History of the Charter

The Charter came into force on April 17, 1982. One section of the Charter, section 15, came into effect three years after the rest of the Charter, on April 17, 1985, to give governments time to bring their laws into line with the equality rights guaranteed in section 15.

Section 16.1 was added to the Charter in 1993. It makes clear that the English-speaking and French-speaking communities of New Brunswick have equal rights, and that the Government of New Brunswick has a duty to protect and promote those rights.

Before the Charter came into effect, other Canadian laws protected many of the rights and freedoms that are now included in it. One example is the Canadian Bill of Rights, which Parliament enacted in 1960. It applies to legislation and policies of the federal government and guarantees rights and freedoms similar to those found in the Charter. However, the Bill of Rights is not part of the Constitution of Canada.

For decades, the Charter has been the source of change, progress and the affirmation of our society's values. Canadian courts have rendered hundreds of decisions in which they apply the Charter to bring Canadian laws into line with the principles and values of Canadian society. For example:

With respect to language rights, the Charter has reinforced the rights of official language minorities.

With regard to equality rights, the Charter has led to the recognition and enforcement of the rights of a number of minority and disadvantaged groups.

In criminal matters, the Charter has clarified the state's powers with respect to the rights of the accused.

Part II - Understanding the Charter

This part of the guide sets out the actual text of each section of the Charter, followed by an explanation of its meaning and purpose.

Guarantee of rights and freedoms - section 1

1. Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Charter protects those basic rights and freedoms of all Canadians that are considered essential to preserving Canada as a free and democratic country. It applies to all governments - federal, provincial and territorial - and includes protection of the following:

fundamental freedoms, democratic rights

the right to live and seek employment anywhere in Canada

legal rights (life, liberty, and personal security)

equality rights for all

the official languages of Canada

minority language education rights

Canada's multicultural heritage

Indigenous peoples' rights

The rights and freedoms in the Charter are not absolute. They can be limited to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or child pornography.

Fundamental freedoms - section 2
2. Everyone has the following fundamental freedoms:

1. a) freedom of conscience and religion;

2. b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

3. c) freedom of peaceful assembly; and

4. d) freedom of association.

Under section 2of the Charter, Canadians are free to follow the religion of their choice. In addition, they are guaranteed freedom of thought, belief and expression. Since the media are an important means for communicating thoughts and ideas, the Charter protects the right of the press and other media to speak out. Our right to gather and act in peaceful groups is also protected, as is our right to belong to an association like a trade union.

These freedoms are set out in the Charter to ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely to other people. These activities are basic forms of individual liberty. They are also important to the success of a democratic society like Canada. In a democracy, people must be free to discuss matters of public policy, criticize governments and offer their own solutions to social problems.

Even though these freedoms are very important, governments can sometimes limit them. For example, freedom of expression may be limited by laws against hate propaganda or child pornography because they prevent harm to individuals and groups.

Democratic rights - sections 3 to 5

Sections 3, 4 and 5 of the Charter contain rules that guarantee Canadians a democratic government.

Section 3 - Democratic rights of citizens

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Section 3 guarantees to all Canadian citizens the right to be involved in the election of their governments. It gives them the right to vote in federal, provincial or territorial elections, along with the right to stand for public office themselves.

Some limits on these rights may be reasonable, even in a democracy. For example, the right to vote or stand for election is limited to Canadians 18 years of age or older.

Section 4 - Maximum duration of legislative bodies

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

Continuation in special circumstances

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

It is a basic principle in a democracy that a government must consult the voters and stand for re-election at regular intervals. Section 4 states that no Parliament or legislative assembly can continue to sit for longer than five years. Only under extraordinary circumstances, such as a war or national emergency, may a government stay in office for a longer period.

Section 5 - Annual sitting of legislative bodies

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Another basic democratic principle is that a government must explain its actions to the people. Section 5 of the Charter makes it clear that Parliament and the legislative assemblies must hold a session at least once a year. This guarantees that elected members and the public have a chance to question government actions on a regular basis.

Mobility rights - section 6

Mobility of citizens

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:

1. a) to move to and take up residence in any province; and

2. b) to pursue the gaining of a livelihood in any province.

Limitation

(3) The rights specified in subsection (2) are subject to:

1. a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

2. b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Affirmative Action Program

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Section 6 protects the right of Canadian citizens to move from place to place, and subsection 6(1) ensures that all Canadian citizens are free to come and go as they please. Extradition laws place some limits on these rights; these laws state that persons in Canada who face criminal charges or punishment in another country may be ordered to return to that country.

Subsection 6(2) gives all Canadian citizens and permanent residents the right to move to and live in any province or territory. They may also look for work or set up a business there.

Subsection 6(3) makes clear that provinces and territories may decide to give social benefits, such as welfare, only to persons who have lived in the province or territory for a certain period of time. They may also pass employment laws that require workers to have the necessary qualifications to practice their profession or trade.

In addition, subsection 6(4) allows a province or territory that has an employment rate below the national average to create programs that favour its own residents.

Legal rights - sections 7 to 14

Sections 7 to 14 set out rights that protect Canadians when dealing with the justice system. They ensure that individuals who are involved in proceedings are treated fairly, especially those charged with a criminal offence.

Section 7 - Life, liberty, and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 7 guarantees the life, liberty and personal security of all Canadians. It also requires that governments respect the basic principles of justice whenever they intrude on those rights. Section 7 often comes into play in criminal matters because an accused person clearly faces the risk that, if convicted, his or her liberty will be lost.

Section 8 - Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

According to the Supreme Court of Canada, the purpose of section 8 is to protect a reasonable expectation of privacy. This means that those who act on behalf of a government, such as police officers, must carry out their duties in a fair and reasonable way. They cannot enter private property or take things from others unless they can show that they have a clear legal reason.

In most cases, they are allowed to enter private property to look for evidence or to seize things only if they have been given a search warrant by a judge. On the other hand, government inspectors may enter business premises without a warrant to check if government regulations are being observed.

Section 9 - Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Section 9 says that government officials cannot take individuals into custody or hold them without a good reason. For example, a police officer must have reasonable grounds for detaining a person. However, courts have stated that laws allowing officers to stop drivers for breath tests are reasonable and do not violate the Charter.

Section 10 - Arrest or detention
10. Everyone has the right on arrest or detention:

1. a) to be informed promptly of the reasons therefor;

2. b) to retain and instruct counsel without delay and to be informed of that right; and

3. c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

The rights in section 10 apply when a person is arrested or detained. They ensure that people under arrest have a chance to challenge the lawfulness of their arrest. The police must tell them quickly the reasons for their arrest. These people also have the right to talk to a lawyer to get legal advice about their situation, and the police must tell them what legal aid services are available in their area. Persons under arrest also have the right to ask a judge to decide whether their arrest was legal and, if it was not, to order their release.

Section 11 - Proceedings in criminal and penal matters
11. Any person charged with an offence has the right:

1. a) to be informed without unreasonable delay of the specific offence;

2. b) to be tried within a reasonable time;

3. c)not to be compelled to be a witness in proceedings against that person in respect of the offence;

4. d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

5. e) not to be denied reasonable bail without just cause;

6. f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

7. g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

8. h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

9. i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Section 11 sets out several important rules that protect anyone charged with an offence under federal, provincial or territorial law.

Persons accused of a crime must be told promptly what offence they are charged with (section 11 a) their trials must take place within a reasonable time (section 11 b); and they cannot be forced to testify at their own trials (section 11 c).

Anyone accused of breaking the law is considered to be innocent until proven guilty. This means that the prosecution must prove beyond a reasonable doubt that the person committed the offence before he or she can be found guilty. The trial must also be conducted fairly before a court which is unbiased and independent of political or any other influence (section 11 d). A fair trial ensures that the rights of the accused are properly protected.

An accused person is entitled to reasonable bail (section 11 e) and, for very serious charges, has the right to trial by jury (section 11 f).

A court cannot convict a person of a crime unless the law in force at the time of the offence specifically stated that the actions in question were illegal (section 11 g).

If a person is tried for an offence and found not guilty, he or she cannot be tried on the same charge again. Moreover, if the person is found guilty and punished for the offence, he or she cannot be tried or punished for it again (section 11 h).

In a situation where a person commits an offence and, before he or she is sentenced, a new law changes the fine or term of imprisonment that applies, that person must be sentenced under whichever law is the more lenient (section 11 i).

Section 12 - Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Section 12 prohibits treatment and punishment by the state that are cruel and unusual. This includes torture, excessive or abusive use of force by law enforcement officials. Also, sentences of imprisonment must match the seriousness of the crime committed. For example, an extremely long prison sentence is not appropriate for a very minor crime.

Section 13 - Self-incrimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Section 13 states that witnesses who give evidence in court cannot have their testimony used against them in other proceedings. In other words, if the testimony of a witness shows that he or she has committed a crime, that evidence cannot be used by the prosecution to prove that the witness committed an offence. The exception is where a witness commits the crime of perjury which is the offence of lying to the court. In that case, the testimony of the witness may be used to show that he or she lied in court.

Section 14 - Interpreter

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Persons who are hearing impaired or do not understand or speak the language being spoken in court have the right to be assisted by an interpreter. This right applies regardless of which language is involved.

Equality rights - section 15

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 15 of the Charter makes it clear that every individual in Canada - regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability - is to be treated with the same respect, dignity, and consideration. This means that governments must not discriminate on any of these grounds in its laws or programs.

The courts have held that section 15 also protects equality on the basis of other characteristics that are not specifically set out in it. For example, this section has been held to prohibit discrimination on the grounds of sexual orientation, marital status, or citizenship.

The Supreme Court of Canada has stated that the purpose of section 15 is to protect those groups who suffer social, political, and legal disadvantage in society. Discrimination occurs when a person, because of a personal characteristic, suffers disadvantages or is denied opportunities available to other members of society.

At the same time as it protects equality, the Charter also allows for certain laws or programs that aim to improve the conditions of disadvantaged individuals or groups. For example, programs aimed at improving employment opportunities for women, Indigenous peoples, visible minorities, or those with mental or physical disabilities are allowed under subsection 15(2).

Official languages of Canada - sections 16 to 22

Sections 16 to 20 make clear that official language rights apply in respect of both the federal government and the provincial government of New Brunswick. Canadians can use English or French when they deal with the Government of Canada. Residents of New Brunswick also have the right to use English or French when they deal with their provincial government.

Section 16 - Official languages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada.

Official languages of New Brunswick

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

Advancement of status and use

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

Subsections 16(1) and 16(2) confirm that English and French are Canada's and New Brunswick's official languages. They also say that both of these languages can be used equally in the institutions of Parliament and the Government of Canada as well as all institutions of the legislature and Government of New Brunswick.

Note that the Charter guarantees that any member of the public can communicate with and receive service from the federal government in the official language of their choice. The Charter does not oblige any member of the public to become bilingual.

Section 16.1 - English and French linguistic communities in New Brunswick

16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

Role of the legislature and government of New Brunswick

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

Section 16.1 was added to the Charter in 1993. It makes clear that the English-speaking and French-speaking communities of New Brunswick have equal rights, and that the Government of New Brunswick has a duty to protect and promote those rights.

Section 17 - Proceedings of Parliament

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.
Proceedings of New Brunswick legislature

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

Section 18 - Parliamentary statutes and records

18. (1) The statutes, records and journal of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

New Brunswick statutes and records

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

Section 19 - Proceedings in courts established by Parliament

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

Proceedings in New Brunswick courts

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

Section 20 - Communications by public with federal institutions
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where:

1. a) there is a significant demand for communications with and services from that office in such language; or

2. b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

Communications by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Section 17 states that everyone has the right to use English or French in Parliament as well as the Legislature of New Brunswick. For example, a witness before a Parliamentary committee may use the official language of his or her choice.

Section 18 states that federal laws as well as those of the Government of New Brunswick, must be published in both English and French and that both versions are equally valid.

Section 19 states that everyone has the right to use English or French in any court established by Parliament, including the Supreme Court of Canada, or by the Government of New Brunswick.

Section 20 outlines the right of Canadians to communicate with the federal government or with the Government of New Brunswick in either English or French. These governments must provide services in both official languages at all of their central offices and other locations where there is a significant demand for them, or where it would be reasonable to expect them.

Section 21 - Continuation of existing constitutional provisions

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

The purpose of section 21 is to protect language rights that already exist in other parts of the Constitution. For example, section 133 of the Constitution Act, 1867 gives the people of Quebec the right to use either English or French in the Quebec legislature and before any of the courts of that province. It also provides the right to have the provincial laws printed and published in both English and French. The Manitoba Act, 1870 (confirmed in the Constitution Act, 1871) confirms the same rights for the people of Manitoba.

Section 22 - Rights and privileges preserved

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

Section 22 guarantees that the rights in respect of the use of English and French as set out in the Charter do not remove or reduce any right to use other languages that might be granted by other Acts or by custom.

Minority language educational rights - section 23

Language of instruction
23. (1) Citizens of Canada:

1. a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside; or

2. b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.

Continuity of language instruction

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province:

1. a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

2. b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Section 23 of the Charter requires provincial and territorial governments to provide education to Canadians in the official language of their choice, even in areas where a minority of residents speaks that language.

In nine provinces and in the three territories, the official language of the majority is English. In these provinces and territories, Canadian citizens have the right to have their children educated in French if:

their first language is French; or

they received their own primary education in Canada in French; or

they have a child who has received or is receiving his or her primary or secondary education in French in Canada.

In Quebec, the language of the majority is French. In Quebec, Canadian citizens have the right to have their children educated in English if:

they received their own primary instruction in Canada in English; or

they have a child who has received or is receiving his or her primary or secondary education in English in Canada.

According to section 59 of the Constitution Act, 1982 (paragraph 23(1) (a) of the Charter) the criteria of "first official language learned and still understood" does not apply in Quebec. It cannot be brought into force without the consent of the National Assembly or government of Quebec. To date, such consent has not been given.

In all cases, the right to receive an education in a minority language applies only when there is a sufficient number of children to justify providing schooling in that language. Where those numbers do exist, governments must provide instruction in the minority language.

Enforcement - section 24

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Section 24 discusses the involvement of the court if an individual's Charter rights have been denied.

Anyone who believes his or her rights or freedoms under the Charter have been violated by any level of government can go to court to ask for a remedy. That person must show which Charter right or freedom has been violated. If a limit to the right or freedom is set out in the law, the government will have an opportunity to show that the limit is reasonable under section 1 of the Charter. If the court is not convinced by the government's argument, then it can grant a remedy that is just and appropriate in the circumstances.

For example, in criminal cases, a court may make an order to stop a trial if they decide that the person has been denied the right to a fair trial within a reasonable time. A special remedy is available under subsection 24(2) if the denial of a Charter right takes place during a government investigation. For example, if a government official improperly searches for evidence on private property (section 8), a court may order that the evidence not be used against the person in trial if it is clear that using the evidence would diminish public confidence in law enforcement and the justice system.

A court may also make an order that a law that violates a person's Charter rights is not valid. This power comes from section 52 of the Constitution Act, 1982.

General - sections 25 to 31

Sections 25 to 31 contain interpretative provisions.

Section 25 - Aboriginal, treaty or other rights and freedoms
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:

1. a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

2. b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

The Constitution recognizes the rights of Aboriginal Peoples of Canada to protect their culture, customs, traditions and languages. The Aboriginal Peoples of Canada are also referred to as Indigenous Peoples, though constitutional provisions specifically refer to Aboriginal Peoples.

Section 25 makes it clear that other rights contained in the Charter must not interfere with the rights of Aboriginal Peoples. For example, where Indigenous Peoples are entitled to special benefits under treaties, other persons who do not enjoy those benefits cannot argue that they have been denied the right to be treated equally under section 15 of the Charter.

In addition to section 25 of the Charter, section 35 of the Constitution Act, 1982, Part II -Rights of the Aboriginal Peoples of Canada, states that the existing Aboriginal and treaty rights of the Indigenous Peoples of Canada are recognized and affirmed. The Supreme Court of Canada has ruled that section 35 means that Indigenous rights under treaties or other laws are now protected under the Constitution Act, 1982.

Section 26 - Other rights or freedoms that exist in Canada

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

Canadians have rights and freedoms under laws other than the Charter. The purpose of section 26 is to ensure that these rights or freedoms are not extinguished because they are not expressly spelled out in the Charter. It also makes clear that Parliament and the legislatures are free to create rights beyond those that are in the Charter. By establishing basic or minimum rights, the Charter does not restrict the creation or enjoyment of other rights.

Section 27 - Multicultural heritage

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Section 27 recognizes that Canada is home to many cultural groups and seeks to maintain and promote multiculturalism.

Section 28 - Gender equality rights

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Section 28 makes it clear that both women and men are equally protected under the Charter. This principle is also found in section 15.

Section 29 - Denominational school rights and privileges

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

The Charter does not affect the operation of religious schools that are protected elsewhere under the Constitution.

More specifically, the freedoms of conscience and religion in section 2of the Charter and the equality rights in section 15 do not limit the right of Canadians under the Constitution Act, 1867, to establish religious or denominational schools.

Section 30 - Application to territories and territorial authorities

30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

The Charter applies to the Yukon Territory, the Northwest Territories and Nunavut in exactly the same way as it does to the provinces. At the time the Charter was enacted, the Northwest Territories included the territory now called Nunavut.

Section 31 - Charter does not extend powers of legislatures

31. Nothing in this Charter extends the legislative powers of anybody or authority.

The Charter in no way affects the sharing of responsibilities or the distribution of powers between the provinces and the territories, and the federal government. The powers of the provincial and federal governments are set out in the Constitution Act, 1867. The legislative, executive and judicial powers exercised in the three territories are contained in the Yukon Act, the Northwest Territories Act and the Nunavut Act, which are federal statutes.

Application of the Charter - sections 32 and 33

Sections 32 and 33 discuss the application of the Charter: what it applies to and the limits to its application.

Section 32 - Application of Charter
32. (1) This Charter applies:

1. a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

2. b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Exception

(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

The purpose of section 32 is to make it clear that the Charter only applies to governments, and not to private individuals, businesses, or other organizations.

Subsection 32(2) was necessary to give governments a chance to amend their laws to bring them into line with equality rights. Section 15 of the Charter did not come into force until three years after the rest of the Charter became effective on April 17, 1982.

Section 33 - Exception by express declaration

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Operation of exception

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment

(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

The purpose of section 33 is to require a government that wishes to pass laws that limit Charter rights to say clearly what it is doing and accept the political consequences.

Section 33 is sometimes referred to as the "notwithstanding clause". It gives Parliament and provincial and territorial legislatures limited power to pass laws that may limit certain Charter rights - namely fundamental freedoms, legal and equality rights.

They can only do this if they clearly state that a particular law is exempt from the Charter. An exemption from the Charter lasts a maximum of five years but may be re-enacted by Parliament or the legislature concerned.

To date, provincial or territorial legislatures have rarely used this section. It has never been used by the federal Parliament.

Citation - section 34

34. This Part may be cited as the Canadian Charter of Rights and Freedoms.

Section 34 simply means that the official name of Part I of the Constitution Act, 1982 (contained in sections 1 to 33) is the Canadian Charter of Rights and Freedoms.

Constitution Act, 1982 - section 52 (Part VII - General)

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

This section of the Constitution gives the courts the power to rule that a particular law is not valid if it violates the Charter, which itself is part of the Constitution.

While subsection 52(1) is not part of the Charter, it provides courts with an important power to strike down laws that violate Charter rights. If only part of the law violates the Constitution, only that part will be ruled invalid.

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Guide to the Canadian Charter of Rights and Freedoms - Canada.ca

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This guide explains the Canadian Charter of Rights and Freedoms and its importance in our daily lives.

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I believe that every constitution should include a section that ensures that everybody is equal, and that said constitution covers everybody equally.  Article 1 of The Constitution says that discrimination of any kind is not permitted in The Netherlands. It explicitly mentions religion, belief,  political opinion, race or sex. It does not, however, specify that the constitution covers everyone equally.

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There isn't much that The Constitution leaves to be added. I would like to see something that explicitly says the constitution covers everyone, no matter their sex, race, religion etc... I would add mobility rights (the right to enter and leave the country, etc.)

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I would remove the amount of times that something can be changed or removed by "Act of Parliament". If you are going to lay out a guaranteed list of rights, why included ways that they can be taken away so easily?