All pension participants are covered by the new Pension Act, but specific rules apply to politicians’ pensions – Joop

Our constitutional state is already under enough pressure due to all political affairs to still be able to speak of a normally functioning democratic constitutional state.

SP senator Tiny Kox has referred to a constitutional defect in the new Pension Act in the Senate. This concerns Article 63 of the Constitution, which stipulates, among other things, that pensions of members of parliament must be regulated by law, a law that must be adopted with a majority of two thirds of the votes cast. An amendment to that law must also be passed with the same two-thirds majority of the votes cast in parliament.

In response to this constitutionally essential question from Senator Kox about this constitutionally identified defect in the law, Minister Schouten quickly invented a legal trick at the last minute in a letter to Parliament dated 22 May 2023. One that certainly does not deserve the constitutional beauty prize. Namely, by stating that the government believes that the law for politicians’ pensions, the General Law for Political Office Holders (APPA), should be replaced by the new pensions law not is amended and therefore a simple majority will suffice. Only if it is decided to amend the APPA in accordance with the new Pensions Act will that amendment have to be adopted by a two-thirds majority of the votes cast in parliament. A simple majority is not enough. This is how Schouten indicates in the aforementioned letter to Parliament.

This legal interpretation by the government testifies to the manipulated use by the government of another Article 120 of the Constitution, which stipulates that a law passed by the House of Representatives and the Senate cannot be tested against the Constitution. The Netherlands does not have a Constitutional Court.

So if the majority of the Senate finds the trick and explanation of Article 63 of the Constitution found by Rutte IV acceptable, the law can still be passed on May 30 with a simple majority, despite this constitutional omission. Without a court ever being able to test the then adopted pension law against the provisions of the Constitution.

In 2013, the Senate sent back a law in a similar situation. However, the government believes that this was a completely different case.

Our constitutional state is already under enough pressure due to all political affairs to still be able to speak of a normally functioning democratic constitutional state.

All senators who intend to agree to the new Pension Act may ask themselves whether this constitutionally important shortcoming in the Pension Act, which has been signaled from a constitutional point of view, would serve the rule of law with the Senate’s assent to this law. After all, its main task is to check whether a bill may conflict with other laws. Including the Constitution.

The government believes that there is no violation of the Constitution as long as the APPA is not amended.

However, the surcharge affair and the Groningen gas file unequivocally prove that Rutte cabinets, including Rutte IV, do not take the rule of law seriously in those files when it suits them. The PvdA and GroenLinks also know this very well, as opposition parties that intend to vote in favor of the law in the Senate.