Perlembagaan Belanda

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Perlembagaan Belanda adalah undang-undang dasar wilayah Eropah Kerajaan Belanda. Perlembagaan kini biasanya dilihat sebagai secara langsung berasal daripada perlembagaan yang dikeluarkan pada 1815, mendirikan suatu raja berperlembagaan. Semakan pada 1848 memperkenalkan suatu sistem demokrasi berparlimen. Pada 1983 perlembagaan Belanda sebahagian besarnya telah ditulis semula. Teksnya sangat serius, bebas daripada doktrin perundangan atau politik. Ia memasukkan suatu perisytiharan hak. Undang-undang dan perjanjian tidak dapat diujikan terhadap perlembagaan dan Belanda tidak mempunyai mahkamah perlembagaan. Kerajaan Belanda juga termasuk Antillen Belanda dan Aruba: terdapat suatu perlembagaan yang memayungi keseluruhan kerajaan: Piagam untuk Kerajaan Belanda.

Sejarah[sunting | sunting sumber]

Perlembagaan Belanda sebagai suatu keseluruhan, dari segi sebuah hukum asas yang dilaksanakan pada semua provinsi dan bandarnya, adalah perlembagaan 1579, yang mendirikan republik gabungan Tujuh Provinsi Bersatu. Perlembagaan telah diberikan kuasa oleh Kesatuan Utrecht, oleh itu perjanjian. Artikel XIII dari perjanjian meluluskan tiap penduduk Republik kebebasan suara kecil. Perjanjian Kesatuan Utrecht mengilhamkan Artikel Gabungan Amerika.

Selepas penaklukan Perancis pada 1794 Republik Batavia, sebuah negara kesatuan, telah diumumkan. Pada 31 Januari 1795 ia mengisukan suatu Bil Hak Asasi, Verklaring der Rechten van den Mensch en van den Burger. Pada 1 Mei 1798 suatu perlembagaan baru, yang pertama dari segi yang rasmi moden, Staatsregeling voor het Bataafsche Volk, ditulis oleh suatu Perhimpunan Berpelembagaan, dikuatkuasakan, diluluskan oleh Perhimpunan Negara. Kerajaan Holland Napoleon, sebuah raja berpelembagaan, telah ditubuhkan oleh Constitutie voor het Koningrijk Holland pada 7 Ogos 1806. Pada 1810 kerajaan ini diambil oleh Empayar Perancis.

Selepas tentera Perancis dikejar keluar oleh Cossack Rusia, negara merdeka baru Belanda, sebuah principality, telah ditubuhkan oleh perlembagaan 29 Mac 1814, Grondwet voor de Vereenigde Nederlanden. William VI dari Orange, instated pada 2 Disember 1813 sebagai "Putera Mahkota" oleh sambutan gembira dan meriah, dan hanya menerima "di bawahperlindungan suatu perlembagaan bebas, memastikan kebebasan anda terhadap salah guna masa hadapan yang boleh terjadi", telah pertama melantikkan sebilangan lelaki dari kedudukan yang baik sebagai pengundi dan ini meluluskan perlembagaan, ditulis oleh suatu jawatankuasa diketuai oleh Gijsbert Karel van Hogendorp. Pada 24 Ogos 1815 William — sejak 16 Mac Raja William I dari Belanda — dengan mengisytiharkan dirinya Raja dari Belanda Bersatu yang lebih besar enam hari terdahulu, mengisukan versi pertama perlembagaan kini, Grondwet voor het Koningrijk der Nederlanden atau Loi fondamentale du Royaume des Pays-Bas, mendirikan Kerajaan Bersatu Belanda, kini memanjangkan dunianya dengan wilayah negara kininya Belgium, yang akan sekali lagi mengundur diri darinya pada 1830. Ia termasuk suatu bil hak asasi yang tidak berkubu terhad, dengan kebebasan agama, prinsip habeas corpus, hak petisyen dan kebebasan media sebagai sudut titik utamanya. Dalam Perjanjian London 1814 Persekutu telah memerintahkan negara Belanda terdahulu untuk merancangkan perlembagaan baru. Ia telah diluluskan oleh States-General baru (terdiri dari 55 ahli) dari Belanda Utara, tetapi ditolak oleh kebanyakan para pengundi (796 terhadap 527) Belanda Selatan. Pada 126 meskipun telah menandakan bahawa mereka menentangnya kerana (oleh mereka masih dianggap terlalu terhad) kebebasan agama, yang diwajibkan di bawah Perjanjian Vienna yang memerintahkan kesatuan Belanda Utara dan Selatan, undi mereka dan yang dari orang yang enggan untuk mengundi, telah ditambahkan pada yang minoriti, dan oleh Willam "Hollandic Arithmetic" yang memalukan merasa berjustifikasi untuk mengisytiharkan kerajaan baru.

Menurut dengan bingkai kerajaan perlembagaan 1815 did not diverge much from the situation during the Republic: the 110 members of Dewan Perwakilan (lower house) States-General 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 monarchal, with the king appointing for life the members of the Senate, that mockingly was called the Ménagerie du Roi.

Pada 1840, apabila suatu ulang kaji baru telah diperlukan oleh kemerdekaan Belgium, suatu langkah pertama pada suatu sistem yang lebih berparlimen telah diambil oleh pengenalan tanggung jawab kementerian banduan.

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 attributed 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 kebebasan pendidikan.

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 Dutch School Wars 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.

Selepas Perang Dunia Kedua pada 1946 suatu ulang kaji gagal mencuba untuk mempermudahkan tatacara berulangkaji. Meskipun suatu perubahan telah diterima membenarkan untuk mengirim kerahan ke perang jajahan di Hindia Belanda Timur.

Dalam ulang kaji 1948 suatu adegan baru yang lengkap telah ditambahkan untuk memudahkan penggabungan negara baru Indonesia dalam Kerajaan. Tidak lama kemudian ia akan menjadi tidak berkenaan kerana Indonesia menerukkan semua ikatan dengan Belanda pada 1954. Juga ulang kaji menciptakan pejabat setiausaha negara, suatu jenis submenteri atau menteri kecil tetapi satu orang bawahan pada sesetengah menteri.

In 1953 new articles were introduced concerning international relations, as the Netherlands were abandoning their 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.

Hukum berpelembagaan tidak ditulis[sunting | sunting sumber]

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.

Kandungan[sunting | sunting sumber]

Ketidakharidan sebuah mukadimah[sunting | sunting sumber]

Contrary to many other constitutions, the Dutch constitution has no preamble stating the sovereignty by which it would be founded or the general principles on which it would be based. This is in line with a long tradition within the Dutch legislative to avoid any explicit reference to ideology or legal doctrine in its written laws. Even the typical terminology of the trias politica is mostly absent: nowhere in the constitution the executive or legislative power is named as such to be explicitly attributed, although of course such an attribution is implicit within the whole of the constitutional system.

Sistematik dan istilah[sunting | sunting sumber]

Civil law systems are characterised 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 consequential in this and incorporate the total of case law accumulated during the generations while the old French Code Napoleon derived law books remained basically unchanged, into a completely new set of modern codes. Economy of style, clarity of expression, conceptual coherence and unity of terminology were striven for. The total revision of the Dutch constitution of 1983 is part of this process. Combined with an absence of explicit legal doctrine the result can be deceptive as the simple phrases hide the underlying implicit doctrine.

Because there is no Constitutional Court testing laws and acts against the constitution, much of the systematics is centered on the problem of delegation. If the legislative were allowed to delegate its powers to the government or to lower decentralised bodies, this would threaten democratic legitimisation and the constitutional protection of the citizen as the latter has 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 nowhere explicitly expressed within the written law and can only be learned from the official commission reports and ministerial commentaries accompanying the bill.

Adegan[sunting | sunting sumber]

Adegan 1: Hak asas[sunting | sunting sumber]

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

  • Equality before the law and prohibition of discrimination (Article 1). This article forbids any discrimination on any ground but allows affirmative action. The right is absolute and cannot be limited by 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 being contemptously treated as "beggars" (Geuzen). The constitution of 1815 limited the ancient right to written petitions, hoping to curtail the typical disorder created by large delegations. Nevertheless such public mass petitioning has ever remained very popular. The right does not imply a concomitant 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 limitative powers cannot be delegated to lower administrative bodies such as municipalities and this includes the concomitant right of distribution of printed materials. 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 e.g., 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 neither printed nor broadcasted 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 organisation 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 organisation as a legal subject under the civil code. Dutch legal doctrine holds that the freedom of association does not protect against forced membership of organisations, 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).
  • Inviolance 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.
  • 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.[petikan diperlukan] 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.[petikan diperlukan] 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, 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.

Teks penuh[sunting | sunting sumber]

Rujukan[sunting | sunting sumber]

  • 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