Text 6752, 130 rader
Skriven 2010-04-08 14:09:58 av Robert Bashe (2:2448/44)
   Kommentar till text 6740 av Michiel van der Vlist (2:280/5555)
Ärende: Question about democracy
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Michiel van der Vlist wrote to Robert Bashe on Thursday April 08 2010 at 10:30:

MV> When a law is conceived it is first offered to the "Raad van State".
MV> That is an advisory body that - among other things - checks for
MV> complience with the constitution. When it finds a conflict, it may
MV> offer suggestions for changes and return it to cabinet.

"Suggestions"? And if they're ignored?

MV> There may be sevarl rounds. Next step is that it is offered to
MV> parliament. They too may offer suggestions for change. Then there is
MV> the senate and when it is passed in te senate, the queen signs it and
MV> it comes into effect.

I see "suggestions", nothing binding. Who or what decides _bindingly_ whether a
law, once passed, is constitutional or not? Or do you have to go to the
European Court of Justice to get a hearing on such things?

MV>>> What I am saying is that the "Hoge Raad" is not part of that system
MV>>> of checks and balances.

RB>> OK, so what is? Why not answer Dale's question?

MV> Dale has not answered my question either. He has not answered the
MV> question "what happens in the US when the supreme court passes a law
MV> that violates the constitution"? There is no answer to that question
MV> as *by definition* the supreme court has the last word on the matter.
MV> If they say there is no conflict with the constitution, then there is
MV> no conflict. Period.

True, but as the Supreme Court passes no laws, the question itself was and is
meaningless. The Supreme Court judges cases that have already gone through the
lower courts and have a bearing on the constitution, or it can rule directly on
cases involving the states, as in the infamous one you and Ward keep citing
that related to the Supreme Court of Florida.

The Supreme Court rules on cases, not on laws. But if someone is convicted of a
crime and the Supreme Court finds the law unconstitutional, the conviction is
overturned and the case referred back to the convicting court for retrial. As
precedent is important in the States (it is _not_ in Germany and presumably
other EU countries), that automatically means that the law in question cannot
be enforced as it stands. It does _not_ mean that the law cannot be changed to
render it constitutional, and this is often done. But the case before the
Supreme Court, once decided, stands - a conviction is upheld or overturned, and
since retroactive laws are not legal in the States - they most certainly _are_
in some cases in Germany, although not as a general matter - the specific case
cannot be retried under a law that has been subsequently been rendered
constitutional.

I know that's a bit complex, but that's the situation in the States.

MV> When all steps have been taken and the highest authority has spoken,
MV> discussion ends. In the US, it is the supreme court that has the last
MV> word, in The Netherlands it is the senate. Asking what happens if they
MV> are wrong, is a question as meaningless as asking "what is north of
MV> the North Pole".

Not quite. The Supreme Court Justices are appointed for life, i.e. are not
subject to any political pressure (or can ignore it at will). How about your
senate? Are the members also appointed for life? Or are they subject to
political pressure that they - if they want to be re-elected or re-appointed -
must bow to?

RB>>>> Or does the NL not have a constitution? I can't imagine that
RB>>>> either.

MV>>> Why not? There are many countries that do not have a constitution.

RB>> Name a few.

MV> Israel? The UK?

Israel? No idea. The UK has the Magna Charta and various additions over the
years. As I already mentioned elswehere, the point wasn't the name, it was the
fact that a "constitution" or "basic law" or whatever you want to call it,
actually does exist.

RB>>  Democratic ones, naturally.

MV> Democratic by who's standard? One again I remind you that the US model
MV> isn't the only one.

No, there's England too. Your country's system is modelled similarly.

MV> A system where the villagers gather every Friday night and decide on
MV> the matters at hand, is an example of a perfect democracy.

Fine. Now all we have to do is eliminate a few billion people for that to work.

MV>>> The Netherlands has a constitution. But it is not the same as that
MV>>> of the USA.

RB>> So it does, but it doesn't. And when asked, you won't explain.

MV> I have explained that the main purpose of Dutch constitution was to
MV> restrict the power of the king. It has served that purpose very well.
MV> The king (or queen) has hardly any power left. The real power is with
MV> parliament.

And who controls parliament? C'mon, don't try to claim "the people" or I'll
have to laugh again.

RB>>>> This is a very confused discussion.

MV>>> It would be for someone who thinks every constitution is like that
MV>>> of the USA.

RB>> Bullshit.

MV> No, it is not. Once again THE US SYSTEM IS NOT THE ONLY one.

Nor, my good, friend, is the Dutch system. Which you appear to pre-assume in
every word you write.

MV> The Dutch constitution serves a different purpose than that of the US.
MV> It does not serve the purpose of restricting what laws parliament and
MV> senate may pass. It serves to restrict the power of the king.
MV> Something totally different.

In that case it isn't really a constitution in the sense we normally use the
word, unless there's more to it than you write. The purpose of the Magna Charta
was also to limit the power of the king, but it has been added to over the
years and now the bulk amounts to a real constitution as it is normally
understood. I feel certain you much have something similar, but it's certainly
hard to get the facts out of you.

Cheers, Bob

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