Democracy under strain

A recent example illustrates this well. When Franck Vandenbroucke, the health minister, says he is “not impressed” by a court ruling finding the covid measures illegal, he allows himself to disregard the law and court decisions entirely. Such talk should not be tolerable in a democracy where the law and the independence of judges and of the powers ought to be guaranteed.

“La justice maltraitée par le politique : une juge dénonce !”

“In her book, Manuela Cadelli, a judge at the Namur court of first instance since 1999 and president of the non-profit Justice for Rule of Law, develops the idea that since the Liberation, the lessons drawn from the horrors of the Second World War have led to a rethinking of the balance of institutions.”

“As a result, elected officials have lost the monopoly on democratic legitimacy that they nevertheless continue to claim, helped by the prevailing populism, while judges have been designated as the guardians of the rule of law.”

“Paris Match Belgique.”
“Your book is a warning signal. You are alarmed by the contempt, and sometimes even the hatred, increasingly openly expressed in the public sphere towards judges. Is this specific to your profession, or is it part of the widespread distrust observed almost everywhere towards institutions vested with authority, even merely moral authority, such as religion, politics, the media or science?”

“Manuela Cadelli. I believe magistrates are particularly targeted by part of the political class and, to a lesser extent, by the media, who accuse them of exercising a ‘government by judges’ when they supposedly have no legitimacy to do so, not being elected. Within the Council of Europe and under authoritarian regimes, notably in Turkey, this constant challenge translates into hundreds of dismissals and imprisonments of magistrates. But even within the European Union, serious abuses can be observed. In Poland, judges are dismissed in the middle of a hearing, on the basis of a simple letter from the Minister of Justice, for having applied European law. This is totally contrary to all the requirements of the rule of law. Speaking of regression is not too strong. Neither our appointment nor our dismissal can depend on a minister. That is the principle of independence: we must be free from any form of pressure. You might reply that the examples I give are extreme and that things are not like that in our part of the world, where the law prevails over political power. Well, I note that here too, elected officials are now hammering that same nail. Admittedly not to the same extent, but it is the same nail! You now have members of governments who dare to declare publicly that they have no intention of applying this or that decision handed down by a court against the State. We saw it in Belgium in the Syrian visa case, and other, more recent examples could be cited. A minister who allows himself to disregard respect for the law and court decisions thus becomes tolerable. When the Brussels court of first instance rules the Covid measures illegal, the Minister of Health, Frank Vandenbroucke, bluntly says he is ‘not impressed’. In France, lately, when a prominent elected official is convicted by the courts, it is not unusual to hear talk of a ‘judicial coup d'état’. In short, law and justice are increasingly being discredited in our Western democracies. Yet this discrediting is driven mainly by politicians and by certain media, who indulge in populism and ride the wave of citizens' disarray.”

“Would you say that magistrates are seen as obstacles by some political leaders?”

“That is exactly it, and yet that is precisely our vocation. My point is that the law, human rights and the institutions that derive from them, as they were rethought and gradually emerged at the end of the Second World War – with the aim of protecting populations from the aberrations of elected officials on the pretext that they are elected, precisely – now appear in the eyes of some of them as an obstacle to their ambitions or objectives. I would nevertheless point out that I do not lump them all together. Let us be fair: in Belgium, we have elected officials who remain concerned about the rule of law. But all the same, in the West, generally speaking, fundamental rights tend increasingly to be associated with a somewhat outdated romanticism, an old relic that has had its day and should now be revised for the sake of efficiency. In our societies, no sector escapes the diktat of performance any more, and the managerialisation of justice is well under way. It goes hand in hand with a desire among leaders to reduce our staff and resources under cover of neoliberal ideology, according to which the workload of magistrates should be assessed by yardsticks of productivity.”

“This raises the question of what a judge and their mission should be. In the book, you denounce the charge levelled against you of overstepping your prerogatives and not keeping to the role assigned to you by the rule of law.”

“Yes, we are reproached for a form of impertinence towards elected officials. Behind this reproach lies the deeply rooted belief that, in a democracy, the monopoly of legitimacy belongs to them alone. I think I demonstrate that, following what happened during the Second World War, the Shoah and the crimes of Nazism, the need for a refoundation that was both democratic and civilisational became imperative from 1945 onwards. It completely redefined the balance of institutions, and elected officials did indeed lose on that occasion the monopoly on democratic legitimacy, which they nevertheless continue to claim. Judges, for their part, were designated as the guardians of the balance of public institutions and of the rule of law. For what purpose? Precisely to avoid reliving the horrors of Nazism. Let us never forget that the Shoah was the work of an elected government. Need we recall that Hitler was legally brought to power by the people? These events show us that when full powers are given to someone on the grounds that they have been endorsed at the ballot box, the worst is liable to be committed. That does not mean elected officials will necessarily commit it, but if they are not restrained, the risk exists. ‘A man restrains himself’, said Albert Camus. And you know the adage: ‘If power corrupts, absolute power corrupts absolutely.’ I am not talking here about financial corruption, but about moral, intellectual and political corruption. When an individual feels he is the repository of all democratic legitimacy, he is capable of delirium in the psychological and philosophical sense of the term, that is, of confusing the world with his vision of the world. The danger is that sometimes the population follows him in his delirium. That is what happened under the Third Reich: everyone signed up to it, including the judiciary and lawyers, who were heavily represented in the Nazi party. They were also driven by a fierce desire to wipe out the ideals of the French Revolution. Indeed, that is what we are witnessing at the moment with Russia's invasion of Ukraine: Putin wants to do away with the legacy of the revolutions and of the democratic ideal, which in his eyes are perversions of History.”

“You refer to the French Revolution. But the revolutionaries, precisely, considered that the people were sovereign and had the capacity for self-determination. Consequently, the law became the expression of the general will. For Montesquieu, judges were to be nothing more than ‘the mouth of the law’.”

“Unfortunately, that is the conception that still predominates today. And if the judge is not merely the mouth of the law, he is immediately declared guilty of arrogance, if he is not simply accused of committing an institutional crime by trying to take a position on political ground – hence the expression ‘government by judges’. But that is precisely to ignore the whole historical sequence of the Second World War that I have described, at the end of which all nations wished to put an end to elected officials' monopoly on democratic legitimacy by imposing mediation through the law, human rights and judicial institutions. More and more often, citizens wonder whether they should resist, whether they should opt for civil disobedience. These questions should in principle be pointless, since we have had, since 1945, the legal tools needed to prevent the delusions of elected officials. The problem is that this idea has had its day. Today you see political figures, notably in France, from Jean-Luc Mélenchon to François de Rugy, publicly expressing indignation when they fall foul of court decisions and repeating over and over: ‘I am elected.’ As if it were some kind of immunity totem! In doing so, they are opposing the inalienable, intangible and non-negotiable rights granted to citizens in the name of the universal principle of ‘never again’, so as to protect them against their own State when it breaches that principle.”

“Some argue that the law is today being manipulated by national and European judges who mainly produce case law. In other words, that they take advantage of the ‘catch-all’ principles underlying the 1945 legacy you speak of (fairness, equality, etc.) to interpret the law in the light of their convictions and their ideology. What is your answer?”

“What do they mean by that? That judges have biases? But of course they do! Like everyone else. What matters on the part of magistrates is that they comply scrupulously with procedures, because procedure is the guarantee of respect for the law and for rights. That said, the judge should ideally be trained to be able to thwart his own biases, to be able to see what drives him. Now, let no one tell me that the law, as the expression of the general will, is threatened only by supposedly partisan judges! Besides, one would have to be rather naive to go on believing that the law remains the expression of the popular will alone. Look at the considerable influence that the financial markets exert, in total opacity, on governments, to the point of being able to dictate certain policies. Perhaps that is where the problem lies, moreover: the people's representatives are far more powerless than they were in 1950, now held hostage by market pressure that puts States in competition with one another. That is the real democratic deficit. For the rest, national judges do in fact apply the case law of the European Court of Human Rights (ECHR) as well as the principles of international conventions. Does that make them ideologues? I insist once again: since the Liberation they have been entrusted with the responsibility of thwarting the political power. As soon as one ignores the historical reasons that give them this responsibility, as soon as one does not look at the texts that enshrine the recognition of fundamental rights, one does indeed see them solely as unelected ‘civil servants’ who should be incapable of handing down inconvenient decisions. And then one says to oneself: ‘Who are they to dare?’”

“Is a power struggle therefore inevitable?”

“Inevitably, but this power struggle is a virtuous one. Precisely because it has nothing to do with obscure legislative lobbying or the opaque influence of the markets. It is, once again, part of the civilisational and anthropological refoundation begun in 1945. Judges are perfectly within their role when, in France for example, in ‘the Cédric Herrou case’ (a farmer active in assisting migrants, editor's note), they invalidate the ‘offence of solidarity’ introduced to criminalise those who help foreigners in an irregular situation. The magistrates of the Constitutional Council did indeed judge it contrary to the principles of fundamental rights. Well, that no longer goes down well in certain political circles and certain media! I am talking about those who thrive on the desolation of the masses and who hold judges up to public vilification by saying: ‘Look, they are the ones preventing us from prosecuting people who house undocumented migrants.’

“Do you consider that there is an Anglo-Saxon-style drift leading individuals or pressure groups to go to court with the aim of tipping the scales in favour of private interests, to the detriment of the collective interest? To the point that one author speaks of the ‘pulverisation of objective law into subjective rights’.”

“The risk of drift takes many forms. First of all, there is a lack of resources and investment in Western justice. Judges are not trained as they should be. And above all not in the history of relations between political powers and State justice. Some – I do not blame them – still tell you today: ‘Careful, we are not elected, so let's watch our step.’ Yet there is no need to watch one's step! Nor to be afraid. And it is not a question of audacity, as is often said. Because the notion of audacity is tied to that of impertinence. And an impertinent judge, once again, is one who will be said to be overstepping his function. It is a matter of honour. Honour in the sense of fidelity to the legacy of 1945. The other problem is that justice is no longer accessible to all those who, as litigants, lay claim to that legacy. On the other hand, it is accessible to those who have the means to move the law in a direction that benefits private interests.”

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https://parismatch.be

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The standfirst was written by the BAM! editorial team

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