International Developments

Rule Of Law And Courts

In democratic systems abiding to the rule of law, an important aspect of the constitutional model, is the recognition of an independent and impartial judiciary. Courts and judges have no mandate other than respect of the law and of fundamental principles and to decide cases without having a bias and without an interest in the outcome of the case whatsoever. Increasingly however the judiciary in democratic systems is under threat. Usually by politics, members of parliament and by presidents or governments, who claim that courts do overstep the boundaries of judicial checks by annulling democratically legitimized activities. This claim is not new: even in the 1930’s President FR Roosevelt announced a plan (the court-packing plan) to push the Supreme Court to change its case law which was a stumbling block for presidential policies which went under the name of the New Deal. The plan failed, but the Court changed its case law and refrained from blocking these policies.

Lessons from the US Court-packing plan
This incident shows two important lessons: 1. The plan failed because society felt that it was improper for a president to target the courts and to seek ultra constitutional tools to influence the courts; 2. That courts do, also when necessary, pay attention to evolutions in democratic society.
The events do teach two lessons: do not tamper with the independence of the courts; and courts will have to resort to evolutive interpretations of constitutions and case law in order to ensure that the constitution and its case law will remain respected and acknowledged. The more so because of the non-biased approach of courts and their independence from parties in cases and from the executive and lawmaker in general.

Courts are indispensable to protect democracy and its citizens
Courts, and constitutional courts, are a useful instrument to keep partisan lawmakers and executives within bounds. Specifically in those instances where majorities in parliament do not necessarily reflect majorities among the electorate; where majorities may trample upon the rights of minorities (the more so when an election systems makes it hard for minorities to become a majority); where majorities feel that courts are stumbling blocks which stand in the way; and where the democratic process of free debate, freedom of the press and the media and freedom of association and similar freedoms are in danger.
Indeed, I would be inclined to say, to remedy these aspects and fulfill the role of stumbling block, to keep the democratic processes open, to limit the scope of maneuvering of majorities in parliament when they intend to use that majority to build mechanisms and change institutions (or gerrymander districts) precisely to achieve their remaining in power, show the necessity of (constitutional )courts.

And precisely for these reasons their existence and their role and power is pro-democratic: preventing oppressive majorities from becoming permanent and suppressing other parties and dissidents or minorities and minority opinions. In order to achieve just that we may have to take into account that a court occasionally strikes down measures which ought te have left to the lawmaker, but for the greater good of preserving democracy over-all.
And it is to be noted: those who invoke the notion that democracy has it that their opinions and decisions may not be challenged by courts, are to be distrusted. Democracy fares well with limited powers. And by independent and impartial courts to guard the boundaries. That is the best mechanism to protect the sovereignty of the people against the whims and arbitrariness of their elected representatives.

Professor of (Comparative) Constitutional and Administrative Law, Maastricht University Netherland
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