Do Judges Seize Power?
In an interview with the former President of The Netherlands’ Supreme Court (“Hoge Raad“), Geert Corstens, we talk about trust in the judiciary. What efforts do judges undertake to remain the trust, people have in courts and in judges? Should judges come out publicly more often or should they restrain themselves to appear in the public limelight? He talks about the new book he wrote with his colleague Reidert Kuiper “De rechter grijpt de macht” (“The Judges Seizes Power”), about populism, the importance of impartiality, and whether we have a “diskastocracy” in The Netherlands, as a populist politician once suggested, about the “Urgenda” case and a famous case on euthanasia in the 1980s when courts were asked to step in where politics failed to come up with legislation.
A judge has to be modest and courageous
On his book “De rechter grijpt de macht”:
“The subtitle is “And Other Misunderstandings About the Rule of Law”. And I am of the opinion that judges have to be both modest on the one hand and courageous on the other hand. Modest, we have to be modest, because it is not the job of the courts to decide on organizational contours of the state or to shape society. That’s not our task. That’s up to politicians. But the judge has to be courageous as well. So the first element was modesty. But in the meantime, to be courageous, that means that when the executive does not obey the law, the judge has to be clear and has to render a judgment that states that the executive does not obey the law. Or, when the legislature has defined a law that is contrary to an international treaty, it is his task or her task, to declare that such a law may not be applied.”
About the three branches of government::
“We have three branches of government, the legislature, the executive and the judiciary. They must be kept in balance, in order to prevent abuse of power. As in many organizations, social organizations, you have an executive boss and the supervisory board, on the other hand. And it’s important that those bodies can control each other, can check each other, can review. And it’s important that neither of these three powers in the state will exert abusive power. The idea is that citizens behold enough freedom. That’s the underlying idea. And yes, the judge has, as my former colleague of the Israel Supreme Court, Aharon Barak, once said, the judge has “sword nor purse”. The legislative branch of government and the executive can please people by giving them financial means and can enforce its measures by violence, if necessary. The judge has only the trust of people in its institution and in its functioning.”
The podcast interview can be found on this website (under “podcasts” above) and on https://podfollow.com/trusttalk and all major podcast platforms, like e.g. Apple Podcasts, Stitcher, Google Podcasts, etc.
Here is the transcript of the interview:
All podcasts are being audio-edited by Job Dijk of Steigerstudios in Veenendaal, The Netherlands