The division of power between the legislator – represented by ‘the political’ – and the judge – represented by ‘the legal’ – is a centuries-old dilemma. The question on which position both powers take in the constitutional context is an everyday reality for the (constitutional) lawyer. The balance between these powers often turns into a tense relationship – a tension that becomes especially tangible after courts important judgments, such as the Urgenda case. Cases seem increasingly to end up in court because politicians have no answer to the issues at hand. If in such a case a court makes a decision, then politicians are eager to emphasise that the court has illegitimately taken up the role of the democratically elected legislator and that it is up to the people to make a decision; not the court. The question, however, is whether this criticism is always justified. Do politicians indeed try to protect the institutional balance as set out in the Constitution? Or do they act as sore losers, looking for a scapegoat for their own failure?
In recent years courts have increasingly been confronted with politically sensitive cases. Issues which, in line with the political doctrine, might have been better left to the legislator, but in which courts may be or feel obliged, from a human rights perspective, to formulate a legal answer. For example, in regard to climate policy it can be said that it is up to the politicians to formulate an answer; an answer which also takes account of human rights. That would be the ideal situation. But what if politicians are evading their responsibility? What if lobbying by individuals and interest groups no longer can help them to get the protection which they (possibly) have a legal claim to?
In such cases, the solution-oriented and emancipated person looks for other avenues. Strategic litigation for the protection of the general interest is increasingly used in the Netherlands. In recent years, several professional human rights litigation groups, such as the Public Interest Litigation Project (PILP) and the Proefprocessenfonds Clara Wichmann, have been established to litigate cases concerning structural problems at the court. As a result, and through emancipated individuals, courts are increasingly faced with issues that are more political in nature. This has led to high-profile judgments by Dutch courts, such as in the SGP and Urgenda cases.
At the international level courts also have to deal with sensitive cases. The European Court of Human Rights regularly has had to decide on complex issues, such as euthanasia, abortion, wearing burkas in public areas and during school swimming, and, more recently, in a case against the Netherlandsf about the application of the controversial Wet bijzonder maatschappelijk grootstedelijk problematie. Although most cases at the ECtHR do not deal with politically sensitive issues, many cases do concern structural problems. Problems which national politicians are aware of, but either have not been bothered or have not been able to find a solution for. In addition, international politics cannot always reach a consensus and at times calls in the help of the international court to settle the issue or to send out a political statement. A good example of this is the recent and historic decision of the Committee of Ministers, the political and executive body of the Council of Europe that monitors compliance with the judgments of the ECtHR, to refer the Mammadov case back to the ECtHR (in accordance with Article 46 (4) ECHR).
The ECHR must now determine whether Azerbaijan has failed to fulfil its ECHR obligations by not releasing Mammadov, an Azerbaijani opposition leader, after its previous ruling on the matter. This important political decision can be seen as a sign of proper cooperation between the political body and the court. On the other hand, it can be said that the ECtHR is used as a pawn to increase political pressure on Azerbaijan. In this case the ECtHR is the patron saint of the ECHR, but at the same time ultimately the one who will have to deal with backlashes after making its decision. In case that the Court finds that the ECHR has been violated, at least Azerbaijan (but possibly also other states with similar problems) will criticise the Court. If the ECtHR does not arrive at a violation, the Committee will not be ‘too happy’ to say the least.
Even though the ECtHR does rule on specific cases, it is clear that these are often not isolated, but have a broader and sometimes even a political impact. When it comes to repetitive issues or cases where interest groups and lawyers at the ECtHR or the Dutch courts emphasize the underlying structural problem, the tension between politicians and the courts becomes very tangible (see the inaugural lecture of Eddy Bauw with regard to the Dutch judge). What should the judge do in such a situation? Should he choose the easy way out – by giving a ruling on minimal grounds or by declaring the case inadmissible? Or should he set himself up as the patron saint of human rights with the chance to be called the bogeyman that endangers the constitutional balance?
The first strategy, the ‘hands off’ strategy, regularly leads to criticism because of the task of the ECtHR to provide human rights protection. An example of this is the recent Burmych judgment against Ukraine, where the Court removed 12,143 cases from the roll and has passed them on to the Committee (see, for example, the criticism of the seven dissenters in the verdict, the blog post by Eline Kindt and the annotation of Lize Glas). It is argued that this judgment does not provide the legal protection to individuals warranted by the ECHR.
The second strategy, the ‘watchdog’ strategy, often leads to criticism, this time from a political point of view. Sometimes this criticism is legitimate and sometimes it is less legitimate. A critical attitude is expressed in extremis by more populist parties. This does not come as a surprise since populists want to create the illusion that they represent the ‘true people’, that is to say, a part of the people that is characterized as the people, and that they will carry out what the people want. The judge – ‘the elite lawyer’ – has no or hardly any role in this. In Denmark, the populists have a strong aversion to the ECtHR and they have recently initiated a critical debate on the future of the ECtHR with the Committee of Ministers (see the blog posts of Jacques Hartmann and Niels Rohleder). This discussion is a follow-up from the earlier British criticism on the ECHR in 2012. Both attacks on the ECtHR were found necessary because, according to these politicians, the ECtHR regularly exceeds its competences with its judgments and the time was come to restrict the power of Strasbourg. In the Netherlands, PVV parliamentarian Markuszower also called the ECtHR a ‘hungry tiger‘ that invalidated democratic laws – in itself this is already an incorrect claim, since the Court does not have such a competence at all – and requested the government to withdraw from the ECHR.
The question on whether the criticism of courts is justified can therefore be answered differently. On the one hand, it can be argued that courts bring the aforementioned problems upon themselves and that politicians only try to maintain the institutional balance. After all, the argument goes; these judges have exceeded the political commitments made, through their broad and evolutionary interpretation of human rights. In view of the ECtHR, the rebuttal to this is that the vast majority of cases actually does relate to the core of these rights and have nothing to do with human rights proliferation. After all, the majority of Strasbourg cases concern issues relating to abusive prison conditions and the excessive length of court proceedings and the enforcement of judgments (see the fact sheet of pilot judgment cases of the ECtHR and the visualization of the list of non-implemented judgments of the ECtHR).
On the other hand, it can be said that the political criticism is not legitimate; instead it is a reaction of a sore loser. From this perspective, it is possible to point to politicians that do not take their own share of the blame, but rather criticizes courts when they are forced to decide upon politically sensitive issues. At the same time, given the fragmented and polarized political climate in the Netherlands as well as increasing complex challenges (such as terrorist threats, climate change and digitalization), it has become very difficult for politicians to act effectively in terms of policy and legislation. In such circumstances, politicians can do rather little about the fact that individuals and groups make their way to court to enforce what they (purportedly) are entitled to.
Whichever position is chosen, it is clear that it is often too easy to purport courts simply as the bad guys. So, for future reference, when a politician, in a Pavlov reaction kind of manner, directly points its finger to the court after an important judgment, think again of the concept of ‘sore loser’. Perhaps it might be appropriate.