Opinion: Legal standards

POSTED: 12/27/13 3:28 PM

The independence of the judicial is a cornerstone of a liberal constitutional state, according to quite some of the almost 700 judges Vrij Nederland recently interviewed his independence is under pressure. If we have to believe Maria van Schepop, the chairman of the Dutch Association for the administration of Justice, there is currently an unbalance in the trias. According to Montesquieu’s teachings of the trias politica the judicial, the executive and the legislative powers have to be separated. Historian Patrick van Schie, the director of the independent scientific bureau of the VVD, the Telders Foundation, examined the situation in an op-ed in Trouw.

“Judges have been complaining for some time now that politicians that comment on court rulings do not respect their independence. But does this independence mean that the work of judges is beyond all criticism? Such a point of view is stretching the principle of an independent administration of justice quite a bit. This principle has been established to guarantee that those in power – originally the  monarch –  would not determine in specific cases what the law is, or for example whet her a suspect is guilty and if do, which punishment will be imposed. This guarantee is still solidly anchored in our legal system.

Judges however are, in spite of their sometimes far-reaching role in shaping legislation through jurisprudence, are not legislators. It is conform the trias politica up to the legislator – in the Netherlands not a neatly separated power but a task given to the parliament and the government – to decide what are the general standards of law that judges have to apply in specific cases. To be able to fulfill this task adequately the legislator will have to consider based on recent court rulings whether justice is still done in the general sense of the word. Not to interfere in a specific case to correct a ruling, but to decide whether sanctions still tally with the sentiment about justice in the society. If that turns out not to be the case, it could be reason for the legislator to adjust general legal standards, upwards, or downwards.

Judges do not only rule on specific cases. As citizens in our society, they also have opinions about the correct legal standards. In terms of political opinions, judges are not at all a mirror of our society. In the Vrij Nederland survey, judges were asked for which party they voted during the most recent elections. Of the participants, 11 percent declined to answer that question, even though the survey was based on anonymity. Of the remaining 89 percent, more than three quarters voted for a leftwing party.

According to Frits Bakker –the chairman of the Council for the Administration of Justice – this does not matter. “As if political preference would make a difference in arriving at a judgment. The administration of justice is per definition a-political.” Would that be so? Where criminal cases are concerned, rightwing voters and parties usually favor harsher punishments than leftwing voters and parties do. Are judges above such social differences of opinion?

Most judges consider themselves highly balanced and explain from that position their preference for the political center. But the 40 percent that voted for the Labor Party, GreenLeft of the Socialist Party cannot possibly be counted in with the center. One third of all judges voted D66 and they consider themselves probably as being situated in the political center. But when it comes to criminal justice, D66 explicitly follows the soft line. Whatever you think of that, in the debate about fitting punishments that is not a center position.

A preference for harsh punishment is attributed in these circles as underbelly feelings. But what to think about the judge who says in Vrij Nederland about people who are doing the most horrible things: “Basically, they remain all good people.” Pay attention now he (Peter Lemaire) is not only speaking here about the possibility that somebody with a good heart does terrible things under certain circumstance, he makes a general statement that according to him also applies to incorrigible criminals. If ordinary citizens do not understand that someone like Marc Dutroux actually is a man of good will, is that then really the result of their lack of expertise? Or are those citizens very well aware that we are hearing here the sound from the very soft underbelly of a judge?

There is indeed an unbalance in the trias politica in the Netherlands – at least in one of the three trias-powers. If the political color of judges is so unbalances, then there  opinions about legal standards are probably the same. Is it not about time to create a political balance in the judicial itself?”

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