Judicial review and consensus politics before 1990 Until the 1980s, constitutional review in the three countries was exclusively in the hands of Parliament, with an advisory role for the Council of State. While this remained the case throughout the entire pre-1990 period in the Netherlands and Luxembourg, a system of centralized constitutional review was established in Belgium in the wake of the federalization process. In Luxembourg, a restricted system of constitutional review was only established in 1996. The most explicit rejection of constitutional review is found in the Netherlands, where the Constitution prohibits that courts review the constitutionality of parliamentary acts. The various reasons and arguments for this ban (Van Houten 1997: Chapter 3) have also been expressed in the other two countries. One argument, based upon parliamentary sovereignty, refutes constitutional review because it “thwarts the will of the people” as expressed by democratically elected members of parliament. This argument is, as we will explain later, increasingly challenged by the internationalization and Europeanization of adjudication in the Low Countries. In Belgium, federalism has also weakened the sovereignty argument. Next, the so-called better-placed-argument contends that an elected legislature is better placed to weigh different interests because it can do so in general terms, it oversees the varying interests at stake as well as the public interest and is, unlike courts, not confined to the accidental case and specific or specialized interests (Van der Schyff 2010: 55-65). The most interesting and final argument is the trade-off-argument. Consensus democracies, which have traditionally been highly fragmented and – up until four decades ago – pillarized, face a constant need for compromise and trade-offs between different political groups; compromises that are in turn enshrined in legislation. Judicial review may complicate this consensus-based law making with its delicate compromises. It may not only undermine the law as such, which in the Low
Countries often represents the result of consociational deal-making, but it may also inadvertently target only a part of the whole package deal and, in this way, undermine delicate political equilibria. This last argument explains why, contrary to Lijphart’s expectations, but in line with his empirical evidence, the consociationalist systems of the Low Countries do not favor constitutional review. If consensus democracy – Lijphart’s somewhat extended version of his earlier concept of consociational democracy (1977) – is characterized, as Lijphart (1999) holds, by broad participation and inclusiveness, then a consociational system could benefit from judicial review, as this provides opportunities for citizens, interest groups and opposition parties to challenge laws (see also Lijphart 2002: 52). In reality, however, consociationalist systems, while stimulating co-operation and negotiation between societal segments, may generate opaque negotiations among political elites. Judicial review would then, by providing access opportunities to challenge policy outcomes to groups that would otherwise remain excluded, make the system more open and less desirable. Hence, in allowing courts to reverse compromises concluded by elected officials, constitutional review would constitute a serious drawback for the political actors. Interestingly, courts in the Low Countries are allowed to set aside parliamentary acts on the basis of international law. In the three countries, the inviolability of national law – and the sovereignty reasoning underpinning it – was utterly challenged when the Supreme Courts accepted the primacy of international law over national law, allowing courts to set aside parliamentary acts and facilitating the integration of both EU law and the ECHR in domestic law (in Luxembourg since 1950, in the Netherlands since 1954 and in Belgium since the Franco Suisse Le Ski judgment in 1971). The Courts’ reference to the nature of international law, and especially their acceptance of the primacy of EU law, including the case law of the ECJ, on constitutional grounds or on the basis of the special nature of the EU legal order, are concrete instances of how exogenous conditions affect domestic constitutional orders. In fact, in the Netherlands, judicial review against the ECHR has become a substitute for constitutional review (Claes and Leenknegt 2011: 301).