Paul Bovend’Eert：荷兰之司法立法、权力分立与政治问题

Judicial Law Making, Separation of Powers, and Political Questions in the Netherlands 

（荷兰之司法立法、权力分立与政治问题）

【作者】

 Prof. Dr. Paul Bovend’Eert

Professor of Constitutional Law Radboud University Nijmegen, The Netherlands

【来源】《月旦法学杂志》2024年8月第351期，第152-165页

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There is a strong tendency in the Netherlands these days to bring all sorts of social issues and political disputes  before the courts, especially when the political authorities (government and parliament) take a decision whereby citizens regard themselves to be victimized. The Judiciary is then asked to reach a verdict on the basis of an open and vague judicial standard.

This article analysis several developments in the Netherlands in the administration of justice at the interface of judicial law making and politics. The question arises whether the political question doctrine is suitable in dealing with these kind of case by the courts.

1. Introduction

2. The Nuclear Cruise Missiles judgment

3. The Nuclear Arms Deployment Ban judgment

4. The Afghanistan judgment

5. Waterpakt judgment

6. Approval of the European Stability Mechanism Treaty

7. Political Questions in the U.S.

8. Political questions in the Netherlands

9. Urgenda judgment

10. An exception to the rule?

The Dutch judiciary tends to interpret its power to decide in disputes quite broadly. In principle, it presumes, on the basis of Article 112 of the Dutch Constitution, a general power to accept jurisdiction of all types of disputes, provided that the plaintiff in the proceedings expresses his claim correctly and asserts being affected by a wrongful act, in line with the objectum litis doctrine where a civil court considers itself authorized when the plaintiff claims being affected in exercising his civil rights.

As such, even strongly political disputes can count on a court that has jurisdiction. As a result, judicial law making by the courts may in specific circumstances take place within the political domain. However, when the court declares itself authorized to decide of a dispute with significant political impact and regards the claim to be sustainable, it may nevertheless rule that a claim is not admissible because the issue to be decided should not be brought before the court but calls instead for a strictly political assessment by the executive government and the parliament. In such case the court would stand back, refrain from judicial law making, and leave it to the political authorities to provide a solution to the issue.

In many cases the principle of separation of powers will be appealed to, which assumes that the courts must not take the place of the political bodies. This implies that the courts should not make political assessments or policy decisions but instead strictly decide on the basis of existing law. On the other hand, the courts under the rule of law must assess the actions of the executive and legislative authorities against the standards of law, such in order to provide legal protection to all citizens. The question is how far this review of the lawfulness of the actions of the two other political branches of government may go.

Below we will first direct our attention to several developments in the Netherlands in the administration of justice at the interface of judicial law making and politics. Next we present an analysis of the political question. That is followed lastly by a presentation of recent court rulings.

Our starting point for the discussion of court proceedings in the political arena lies with the landmark cruise missiles judgment. In this judgment the Dutch Supreme Court ruled that the stationing of medium-range nuclear cruise missiles in the Netherlands on the basis of an international treaty, a political decision by the First Lubbers cabinet (1982-1986) that gave rise to great controversy, was not unlawful.

The Cruise Missiles Foundation (Stichting Verbiedt de Kruisraketten) had taken the initiative in 1984 to challenge before the court the stationing of cruise missiles on the basis of a treaty and had summoned the Dutch state to appear before the court of law for The Hague. This court did not regard itself authorized thereto, since the stationing was to take place on the basis of a treaty ratified by the Dutch parliament, and whether the stationing would lead to violation of international law was a matter to be decided solely by the parliament. The civil court therefore considered that it had no task or authority of its own in this matter. In the subsequent appeal proceedings, the court of appeal did consider itself to be authorized, but it nonetheless followed the line of thinking of the civil district court that it should not review treaties against the rules of international law.

In cassation before the Supreme Court the question of jurisdiction was no longer put forward. The Supreme Court ruled that there were no impediments to prevent the civil court to review treaties against international law standards. In that context the Supreme Court also considered that it had to confine itself in its investigation to the rules ‘that in the present state of international law (as evidenced in part by the interpretations and practice of the States) can be regarded as ruling law’ (legal ground 3.5).

The Supreme Court considered that a rule of international law that explicitly banned the possession of nuclear cruise missiles did not exist. Nor did international law ban all use of these missiles or that this would involve a violation of fundamental rights. The international law investigation thus did not lead to a determination that international law standards were violated.

In the literature on constitutional law, the cruise missiles judgment has been contested by various authors, including Koopmans. He took issue with the verdict by the Supreme Court, in that the civil court was judged to have the authority to determine whether the decision by the Dutch government was in line with the rules of international law. That specific question, Koopmans remarked, had been decisive in the political debate in parliament. According to Koopmans, the civil court went rather far in its interpretation of the room for maneuver that it had, and more judicial restraint would have been appropriate. Koopmans added to this that the Dutch government would have ended up in a constitutional crisis if the stationing of cruise missiles in 1989 had become imminent while the Supreme Court had chosen the side of the extraparliamentary opposition.

A second example of dispute settlement in the political arena is the nuclear arms deployment ban judgment. This case involved a claim by the Association of Lawyers for Peace (Vereniging van Juristen voor de Vrede) and the Millions Are Against Foundation (Stichting Miljoenen Zijn tegen) against the State of the Netherlands, wherein the association demanded that it be ruled that any and all Dutch collaboration with the actual deployment of nuclear arms would be for once and for all forbidden.

The Supreme Court concluded, basing itself on an opinion of the International Court of Justice issued in 1996, that the use of nuclear weapons was not unauthorized under all circumstances, even if this constituted in general a violation of the principles of humanitarian law of war. In addition, the Supreme Court considered that the claims pertained to Dutch national policy in the domains of foreign politics and defense, which policy highly depends on political considerations in light of the circumstances of the specific case. The Supreme Court reasoned (in legal ground 3.3): “This means that the civil courts must demonstrate considerable reticence when evaluating claims, such as instituted in this action, which are intended to effect that activities pursuant to political decision-making in the field of foreign policy and defense, which may be conducted in the future, are designated in advance as wrongful and thus forbidden. After all, it is not up to the civil courts to make such political assessments. In addition, the civil courts must leave sufficient room up front for the governmental bodies that are called thereto to make such political assessments on the basis of the concrete circumstances of the case that cannot now be foreseen, and to limit this room as little as possible in advance by imposing a prohibition whereby these circumstances can be considered.”

It is in any case clear from this judgment that the Supreme Court was reluctant, even more than in the cruise missiles judgment, to assess the legitimacy of this delicate matter of foreign and defense policy. The Supreme Court nonetheless assessed, also in this judgment, the legitimacy of government policy regarding the use of nuclear weapons.

In the literature on  constitutional law, Koopmans again expresses criticism, doing so in his note. In his opinion, a case such as this evokes a general problem. Actions arising from a wrongful act are gradually being regarded appropriate for subjecting unresolved social and political problems, regardless of their nature, to the judgment of a civil court. Such court is viewed as an appellate body for political decisions, and case law at times supports that presumption, as Koopmans remarks. The court is reduced in that way to a ‘wailing wall for citizens and a side stage of the political arena’. The Supreme Court is doomed to undergo this fate, according to Koopmans, if the development of the law governing liability for unlawful acts carries on in this way.

Koopmans furthermore criticizes the way the Supreme Court appeals to opinions of the International Court of Justice. When international humanitarian law is involved, there is all the more reason, he believes, to exercise due care. The Dutch judiciary has little control over the development of such law, and the impact of the facts is exceptionally great. The Supreme Court cannot deal with that branch of law in the same way as for ordinary law disputes such as , for example, bankruptcy or labor law cases.

Several years later the Supreme Court exercised more restraint in the Afghanistan judgment, issued in 2004. This case involved the deployment of Dutch military forces in Afghanistan after the attacks of September 11, 2001. The plaintiffs (Association of Lawyers for peace), called in this action for prohibiting the State from collaborating with the use of military force against persons who were implicated by the U.S. with the attacks, so long as the Security Council had not ordered such actions through a resolution under Article 42 of the United Nations Charter.

This time the Supreme Court did not choose to go the way of substantive review. After ruling that Article 2(4) of the United Nations Charter (prohibition of the use of force) cannot be invoked by a citizen before the court, and that Article 90 of the Constitution of the Kingdom of the Netherlands likewise does not offer any point of reference for review, the Supreme Court considered that the claims introduced in the proceedings related to questions regarding government policy in the field of foreign politics and defense, which policy would highly depend on political considerations in connection with the circumstances of the specific case. And more emphatically than in its previous judgments, the Supreme Court then considered: “It is not up to the civil court, also where a prohibition against the use of force is concerned, to make such political assessments and to forbid the State (the government), on the demand of a citizen, from taking specific actions towards implementation of a political decision, or to order the State to follow a specific course of action in this area” (legal ground 3.4).

This judgment makes clear that the Dutch Supreme Court takes the position that the civil courts must not get involved in government decisions regarding the deployment of the military. Such decisions are based on political considerations that lie outside the sphere of influence of the civil courts.

A comparable approach can be seen in the Waterpakt judgment. In this action Waterpakt et al. demanded that it be ruled that the Dutch State acts unlawfully by failing to implement the Nitrates Directive. They also demanded that the State be ordered to take measures to implement this European Union regulation . The Supreme Court considered as follows: “Acts of Parliament are established, in accordance with Article 81 of the Constitution, by the government and the States General (parliament PB), where the question whether, when, and in what form a law will come about must be answered on the basis of political decision-making and due consideration of the relevant interests. The division of powers of the various public bodies, which likewise rests upon the Constitution, implies that the courts may not interfere in the political decision-making process. All of this is no different when the result to be effected through this legislation and the term within which the result is to be achieved are set out on the basis of a European directive. Also in the event that the legislative body has failed to enact legislation to achieve the required result within the term for implementation of a directive, and when it can be assumed that the State thereby acts unlawfully, the courts cannot then issue an order to enact such legislation within a specific term that they would set. Even in such case it still applies that the question whether legislation must be enacted and, if so, what it must specifically entail, calls for a consideration of many interests, including those of parties that are not involved in the current proceedings, and for a political assessment, which the courts cannot get involved in.”

As he states in his note, Koopmans considers the separation-of-powers argument formulated by the Supreme Court convincing in itself. What strikes him, however, is that it is formulated in such a general and merciless way. May an order to enact legislation indeed never be issued? In his opinion, one might consider situations where democratic decision-making processes seriously falter.

A final example, which can be seen as a corollary to the Waterpakt judgment, is the verdict issued by the district court of The Hague regarding approval of the European Stability Mechanism (ESM) treaty. In this action, Geert Wilders and Louis Bontes, members of the Dutch Lower House for the PVV, demanded that the State be ordered to submit the bill regarding approval of the ESM treaty to the Lower and Upper Houses of the States General no earlier than after the parliamentary elections of September 12, 2012. The district court stated firstly that Wilders and Bontes claimed a unlawful act by the state as the basis for their demands, thereby confirming the authority of the civil court. Next, the court stated that the claims are directed against the State in its capacity as legislative body and amount in essence to intervention in the legislative process.

With this finding the fate of the demands by Wilders and Bontes was sealed. The court considered as follows: “The establishment of acts of Parliament is assigned according to Article 81 of the Constitution to the central government and the States General jointly, where the question whether, when, and in what form a law will come about must be answered on the basis of political decision-making and due consideration of the relevant interests. The distribution of competences of the various public bodies, which likewise rests upon the Constitution, implies that the courts may not intervene in this political decision-making process. Also ruled in that context in the Supreme Court’s judgment of November 19, 1999, NJ 2000/160, is that the courts can likewise not intervene in the procedures that lead to acts of Parliament because procedural rules were allegedly not adhered to (…). It is pre-eminently a task of the legislature to weigh the various arguments and interests in the action. It is not up to the civil courts to make their own ‘full’ assessment.” The claim was therefore dismissed.

Also in other countries the courts wrestle with the question how to deal with disputes in the political arena, such as highlighted in the above judicial judgments. In Belgium and France government actions (actes de gouvernement) are withdrawn from court judgment by the Conseil d’État, the French administrative court. Traditionally, actions and decisions by the central government in relation to parliament, as well as actions and decisions in the context of foreign relations, fall outside the competency of the French administrative courts.

In the U.S., the Supreme Court follows the so-called political question doctrine. The American doctrine of political questions goes back to the landmark judgment by the Supreme Court in Marbury v. Madison (1803), where the Court appropriated to itself the power to review laws enacted by the U.S. Congress against the Constitution. The Court added in this judgment that not all actions of the other branches of government would be subjected to judicial review:

‘The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have discretion. Questions in their nature political, or which are, by the constitution and laws, summitted to the executive, can never be made in this court.’

It follows from this judgment that ‘political acts’ and ‘unrestricted discretionary acts’ of the executive branch are excluded from judicial review. However, what specifically constitutes a political act or a discretionary government act is not made clear in the Marbury v. Madison judgment.

In that judgment the U.S. Supreme Court addressed the question whether acts of the executive branch can be political questions. In a later judgment, that in Luther v. Borden (1849), the Court ruled that the exercise of discretionary powers by the U.S. Congress can also under certain circumstances involve a political question, and can thus fall outside the scope of judicial competence. This judgment involved the question whether representatives of the legitimate (or illegitimate) government of the state of Rhode Island had acted against a citizen of the state. The Court ruled that this concerned a political question which the Congress and not the courts must decide, in line with Article IV, Section 4, of the Constitution (Guarantee Clause).

In the Baker v. Carr case (1962) a precedent was established for the political question doctrine that is still guiding. This ruling deals with the division of electoral districts in the various states, an issue that was already regarded in those days as a political question. In 1962, however, the Supreme Court made a turnabout and tested the redistricting of an electoral district against the equal protection clause of the Fourteenth Amendment to the Constitution. In its ruling, the Court distinguishes six political question categories, namely:

‘Prominent on the surface of any case held to involve a political question is found (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) or a lack of judicially discoverable and manageable standards for resolving it; (3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) or an unusual need for unquestioning adherence to a political decision already made; (6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.’

The Court did not, however, explain how these six political question categories are to be applied in practice, what factors are relevant in each case, and whether there is a certain ranking between the six categories. Nor did the Court make clear what legal principle lies at the basis of the political question doctrine. Is it the constitutional provision regarding the powers of the federal courts (Article III: ‘All cases arising under this Constitution’) or is it the principle of the separation of powers? The Court does remark that foreign policy issues may involve political questions.

All in all, the Baker v. Carr case did lead to an impressive listing of complicated abstract descriptions of political questions, but the doctrine did not thereby get fleshed out in a practical way.

Following this judgment, the Supreme Court addressed the political question doctrine a few other times. In Powell v. McCormack (1969) it ruled that the decision by the House of Representatives to block entry by an elected member (Adam Powell) to the House because of corruption practices was hardly a political question, because the only thing the judge in the case did was uphold the Constitution, by testing whether the restrictive admission requirements for members of Congress were met. The decision by the House not to admit the elected member on the basis of grounds that were unrelated to the Constitution was therefore unconstitutional.

So the Court saw no reason here to assume application of the first category of political questions, namely that the power is explicitly assigned to Congress. The Court did apply this category in the Nixon v. United States case, in which a federal judge (Walter Nixon) challenged the decision by the U.S. Senate to remove him in an impeachment procedure. The Supreme Court regarded the courts to be unauthorized to decide on the dispute because, according to the Constitution, the Senate has ‘sole power of impeachment’.

In the Gilligan v. Morgan judgment of 1973 the issue was whether a court can issue rules, following serious incidents that took place during police action by the paramilitary National Guard on a university campus (with fatal results), in a judicial procedure for the organization and mode of operation of the National Guard. The Court ruled that a political question was involved here. It based its ruling in particular on the argument that this issue must be addressed strictly by Congress and that specific legal standards for judicial review were lacking.

In the literature on constitutional law, the political question doctrine has over time often been declared dead. The federal courts are said to distance themselves in various ways from disputes with a strong political character, for example by determining that a party to the proceedings has no interest (‘standing’) in a claim. It does not seem right, however, to conclude that the political question doctrine is dead and buried at this time. The precedents of Baker v. Carr (1962) have not been overruled by the Supreme Court, and on occasion it still explicitly applies the doctrine. In the Rucho v. Common Cause (2019) case, the Court even ruled that the issue of manipulation of electoral districts (‘political gerrymandering’) involves a political question because it concerns:

‘basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.’

Overseeing the case law by the Supreme Court since Baker v. Carr, the first two categories appear to have been most relevant in practice. And the central question in that regard is whether or not the courts may apply ‘judicially discoverable and manageable standards for resolving a case.’ Such is the crux of the American doctrine of the political question. Are the courts in a position to decide disputes on the basis of concrete and practicable legal standards that can be deduced from the Constitution and other laws and the principle of justice? The Powell v. McCormack judgment is a striking illustration of this. Even if the underlying dispute has a strong political context, the Court still finds a judicially discoverable and manageable standard to resolve the dispute. Consider also another famous dispute, with far-reaching political consequences, namely United States v. Nixon (1974), in which President Nixon was ordered to deliver the Watergate Tapes to a federal district court. The Supreme Court tested this case against the (unwritten) legal standard of the executive privilege.

If a court has no concrete and practicable legal standards at its disposal in a certain dispute that is put forward for resolution, then such court must refrain from making a decision since a political question is involved. For lacking such standards, the court would be brought into the position where it reaches a verdict on the basis of political or policy-driven grounds rather than on the basis of legal criteria. Which is hardly the intent. Aside from that, there is the question whether the underlying issue should not really be decided by the political authorities, namely the President and/or the Congress.

In a certain sense the U.S. Supreme Court follows an approach that is at the core of the judicial function, namely that the courts only test the lawfulness of government actions, and not their political intent. By extension we see in the case law of lower U.S. federal courts (district courts and courts of appeal) that they nearly always refrain from ruling disputes that relate to the deployment of war powers. For such cases there are no concrete and practicable standards that might be used to review such disputes in legal proceedings. Also in matters of foreign policy the courts are very reticent.

Getting back to the case law of the Dutch judiciary discussed above, it is striking that political questions are these days sometimes acknowledged in the domestic situation. Earlier we saw the Afghanistan judgment by the Dutch Supreme Court in 2003 that the civil courts are not entitled to make political assessments or to prohibit, at a citizen’s request, specific acts by the Dutch government that serve to implement political decisions in the field of foreign policy or national defense.

In its Waterpakt judgment of 2004 the Supreme Court concluded that the answer to the question whether and how a law is enacted depends on the political decision-making process. Considering the constitutional division of powers, it is not up to the courts to intervene in that process. In the European Stability Mechanism case of 2012 the District Court extended this line of thinking, so we can conclude that the Dutch courts see no judicial task for themselves regarding disputes that relate to the political decision-making process by government and parliament in the sphere of foreign relations and defense, nor in disputes that impact the way decisions are made in parliament.

We might add to this the disputes that concern the internal relationship between government and parliament, such as a decision by the government to dissolve parliament and to call early elections. The basis for such non-interference by the judiciary lies in the constitutional concept of functional and organizational separation of powers, where decisions regarding certain subjects of governmental policy fall strictly within the political domain, and where the courts do not intervene in the internal decision-making processes of political state bodies. The fact that acts and decisions in such matters have a largely political character is decisive here, rather than the circumstance whether a judicial standard might exist whereby such acts or decisions might be tested.

The landmark Urgenda judgment by the Dutch Supreme Court, issued in 2019, deviates from this line of development. What stands out here is that the Supreme Court based its judgment on Articles 2 and 8 of the European Convention on Human Rights (ECHR), even though these articles contain no concrete and practicable judicial standards to decide the reduction of CO2 emissions. Instead, the Supreme Court based its judgment on politically impacted climate reports. In that sense, a political question was involved.

In addition, the Supreme Court qualified through its Urgenda judgment the earlier Waterpakt judgment that a judicial order to initiate legislation falls outside the realm of the courts. This qualification means that the Supreme Court now regards a judicial order as acceptable ‘in order to achieve a goal, so long as such order does not amount to an order to bring about legislation with a certain specific content’. When a court confines itself to issuing a general order to take measures, then according to the Supreme Court it prevents giving rise to the objection that third parties would be indirectly bound by the judgment. After all, the Supreme Court reasons, the judicial authority does not by its order define the content of the regulation. That remains within the domain of the legislature involved.

The Supreme Court’s line of argumentation demonstrates a one-sided view of the constitutional relationships between the state authorities. The Constitution clearly states that government and parliament occupy independent and separate positions. The independent and separate position of parliament received special attention in the current Constitution of 1983. The constitutional provisions regarding parliamentary immunity (Article 71) and the free mandate of parliament (Article 67) are witness to the independent position of parliament and of a clear separation from the executive and judicial branches.

Article 81 of the Constitution clearly sets out that the power to establish legislation lies exclusively with the executive government and parliament. The courts therefore have no role in the adoption of legislation.

The judicial order that is contained in the Urgenda judgment leaves the question whether such order is compatible with the principle of the separation of powers, wherein each of the three state authorities holds an independent and equal position versus the others.

Decisions to draft a legislation, or to submit, amend, withdraw, adopt, or reject it, all fall within the domain of political officials, of prime minister and cabinet, and of members of parliament. That has not been arbitrarily decided. Under the rule of law and in a parliamentary democracy the establishment of laws is a matter that is entrusted to a democratically elected parliament together with the executive government, with the cabinet members of that government being accountable to the parliament and requiring the trust of that parliament. Any assignment of legislative powers, such as a judicial order, to a member of the judiciary branch, who has not been democratically chosen, who belongs to another state authority, is tantamount to allowing an ‘intruder’ to intervene in the legislative process.

In its Waterpakt judgment the Supreme Court still took this allocation of roles into consideration, as we have seen. But in the Urgenda judgment the Supreme Court appeared to ignore the implications of Article 81 of the Constitution. It distinguished between a specific and a general judicial order, with the former being unacceptable, contrary to the latter. Considering the above, it should be clear that neither a specific nor a general judicial order is reconcilable with the constitutional principle of the separation of powers and the exclusive conferral of authority to the government and parliament by virtue of Article 81 of the Constitution.

In its Urgenda judgment the Dutch Supreme Court stepped into the political domain, thereby demonstrating little consideration for the principle of the separation of powers. Lacking concrete and practicable judicial standards to decide the dispute, it ruled on a political question. This does not, however, imply that the courts in the Netherlands have little regard for the allocation of tasks and powers of the state authorities. In general, the courts are cautious in their review of disputes that lie heavily within the political domain and that affect the separation of powers between the state authorities. An example of this can be seen in the ISIS-women judgment of 2020, in which the Dutch Supreme Court responded to the question whether the State is required to repatriate a number of ISIS volunteers and their children. The Supreme Court addressed in its judgment an extremely sensitive political matter: “The policy adopted by the State in a domain such as this depends strongly on political and other policy-related considerations in relation to the circumstances of the case. As such, it is not up to the court to make an assessment. Furthermore, the court must adopt a cautious attitude with regard to the assessments made by the State.”

Also relevant in this particular case is that the demands of the women and children were closely tied to questions of national security and foreign policy. When it comes to national security and foreign policy, the State rightly has considerable policy and discretion latitude.

It would be wise for the Dutch courts to carefully consider how to deal with disputes that have a strong political character. The American political question doctrine, and in particular the application of the second criterion in Baker v. Carr, can serve as a useful reference point in this regard.

We clearly see a strong tendency these days to bring all sorts of social problems before the courts, especially when the political authorities take a decision whereby citizens regard themselves to be victimized. The courts are then asked to reach a verdict on the basis of an open and vague judicial standard. They are thus brought into a situation where they have to make a political choice while lacking concrete and practicable judicial standards. The courts should, however, not let themselves be forced to go that way.