Constitution of The Netherlands - Unwritten Constitutional Law

Unwritten Constitutional Law

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 purely based on tradition. 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. He 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 King then appoints a "Formateur" who literally forms the government by negotiating an coalition agreement between the coalition parties and the division of the ministrial 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. Since there are no political alliances and parties do not commit themselves to a coalition before the elections, a competent King can have a decisive personal influence on what coalition is formed.

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 Recht, 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.