[Column] Abolish the ban on testing!

 

[Column] Abolish the ban on testing!


It's King's Day and I'm dreading the deadline for this column. Without tompouce. But with a cup of coffee. What am I going to talk about this time? Last time I already mentioned the limitation of the scope of procedural documents on appeal. [1] This is still current and in that matter summary proceedings will be filed on 26 May 2021.

Or about the rule of law that is falling further and further into decline thanks to successive Rutte cabinets? The fact that the rule of law is not in good shape is not only apparent from the fact that lawyers keep drawing attention to it and that the allowance affair shows that good (financed) legal aid against our government is a must. 'The other side of the table' also demands attention for the restoration of the rule of law. The Council for the Judiciary sent a letter to informateur Tjeenk Willink on 16 April 2021. [2] It makes 10 recommendations for fair, accessible, transparent and decently funded justice.

The first recommendation concerns a fair administration of justice and involves the lifting of the prohibition of review in Article 120 of the Constitution. This article states that judges may not intervene in the assessment of the constitutionality of laws and treaties. In other words, the judge is not allowed to judge whether or not a law is in accordance with the Constitution.

I wholeheartedly agree with the Council for the Judiciary. In recent years, the quality of legislation seems to be deteriorating and legislative advice from the Council of State, among others, has become increasingly critical. Subsequently, it happens more and more often that these critical advice is set aside, resulting in bad or poorly enforceable legislation. Think of the KEI Program – you know that prestige project that cost millions and in which no proper research had been done before it started – and the harrowing consequences of the Childcare Allowance Affair. It is so bad that the Council of State sent a letter to Prime Minister Rutte on 19 April 2021 with recommendations to promote the quality of legislation. [3] Let's hope that something is done with these advices…

But it is not enough to assume that the quality of legislation will now improve. Firstly, it is questionable whether these advices will be adopted and secondly, this does not make existing bad legislation any better. It would therefore be a good thing that the ban on testing is abolished. In this way citizens are better protected against the consequences of bad legislation (and against the government) and citizens can finally invoke their fundamental rights.

For this to have an effect, it is also of the utmost importance that the social advocacy is kept alive. After all, if citizens do not have effective access to the courts, the prohibition of review will de facto still exist and the rule of law will continue to decline.

Citation title: JM Veldhuis, Abolish the ban on testing! , BER 2021, ep. 4, p. 21.

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