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Part IV: Our Failing Democracy - THE INDEPENDENCE OF THE JUDGE

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Update: We posted this column, but due to a tachnical error only half of it was visible

About the independence of the judge

Part 1 of the series made clear why we have qualitatively inadequate representatives and administrators; many political positions, little choice of suitable candidates.

Part 2 deals with the influence of the voter on the political course. The Hague mechanisms reduce these to nil.

Part 3 described how cadaveric discipline enslaves the House of Representatives to the government and that their controlling function is only fiction.

This fourth part deals with the influence of politics on the judiciary.

Separation of state powers
Our country has three separate state powers; the legislative power (government together with the 2nd Chamber and then the 1st Chamber), the executive power (government) and the judiciary. In Part 3 we looked at the legislative and executive branches and now the judiciary.

The division of state powers was conceived by Charles de Montesquieu. Basic idea; absolute power should never rest with one person or one small club. He also felt that the government (executive) should carry out the will of the people.

Part 3 thoroughly shattered that myth. De Montesquieu also states that the state powers should not underhandedly influence or exercise power over each other.

For example, he was in favor of a lay jury as is customary in Anglo-Saxon countries. Experiments have shown that the verdict of a lay jury hardly deviates from a court decision. (Source:

The judge then guards the proceedings and the jury determines guilt or innocence. A lay jury is a guarantee for independent justice. Unfortunately, the executive (government) dominates both the legislative and the judiciary. It is the standard way of working.

The theory
The independence of the judge must be evidenced by his appointment for life (Constitution, art. 117). The Constitution describes in general terms the task of the judiciary and instructs the legislature to further elaborate this in all kinds of laws. One such law is the RO Law (Law on Judicial Organization).

It regulates which courts there are; including district courts, courts, courts and the Supreme Court. The latter is the supreme judge in criminal and civil law.

The RO Act establishes the powers; what type of court may judge. The law also regulates the Public Prosecution Service (OM). They are prosecuting crime suspects on behalf of the state.

Then there is the Council of State (RvS). That is the judge who deals with administrative law cases. In short, disputes between citizens and governments.

For example, an interest group that objects to a provincial decision to cut a piece of forest for a road.

The Council of State also deals with disputes between governments.

That all seems like cake and egg, but in the constitutional basis there are holes as large as the entire Catshuis. For example, the right to a fair trial is not in the Constitution and that is contrary to all kinds of treaties.

The influence of the legislature on the judiciary through the law
The Constitution was drawn up by the legislative power (government, 2nd and 1st Chamber). Article 120 states that the court may not test (new) laws for conflict with the Constitution. This testing must be done by legislative power.

Watch out, that's the butcher who inspects his own meat! Part 3 described how, due to the cadaveric discipline in the Lower House, every bill always succeeds. In concrete terms, it means that the legislator, in practice that is the government, has complete freedom to manipulate laws.

Under Rutte, all kinds of legislation that violates the Constitution saw the light of day under his rule.

Some examples:

The Syri law predetermined with computer profiling whether someone could be a possible fraudster. Disadvantaged neighborhood + ethnic group? Judgment computer: there is a good chance that you are a fraud. Syri clearly violated the Constitution, but was nevertheless chased through the 2nd and 1st Chamber as a hammer piece (!).

Pretty careful ...

Privacy First got Syri off the job through the judge. Syri violated various international treaties and the judge is allowed to test that.

Gone Syria! 'No worries'Rutte thought: 'we'll make up what'.

And now the SuperSyri law is pending, which can designate all Dutch people in advance as suspicious on the basis of computer profiling. For example on the basis of a combination of your profession, surfing behavior, background, education, criminal record, payment history, medical background, your contacts, etc.

For example, if you are a plasterer, you will be labeled 'probably also an undeclared worker' and it is more difficult to apply for benefits. Or you pay a lot of road tax and also receive rent subsidy; ah, fraud!

Because rent subsidy = low income, does not match a lot of road tax for a nice car. That you inherited it from your father, too bad, but suspicious.

See here the deep distrust of the state towards the citizen. The benefit drama shows where this can lead. Read the columns by Pieter Klein of RTL about this.

We go on.

The automatic number plate recognition act violates privacy. The law that made email screening 'legal' violates the confidentiality of letters.

According to the legislator, email is not the same as a letter. But mail is just like the old-fashioned letter, isn't it? Groningen earthquake victims could only be harmed by a new institute that is currently under consideration.

They can no longer go to court. The duo Teeven and Opstelten made access to court more difficult. No more access for certain things anyway and the price of the ticket to
the court was raised significantly.

That is a shame for people with little money, and there are more and more. And all under Rutte. I stop because the list is endless. Conclusion?

The legislator manipulates the law. And let's be clear, for the most part, the legislature is also just the executive
(government), thus putting the judge out of the game on the assembly line.

Government interference in lawsuits
The executive power (government) also puts pressure on the judge or tries to manipulate the case. The Wilders case is the best known. Now the judge Grapperhaus must 'search more closely' for documents that concern the interference of the Ministry of Justice and Security in the Wilders case.

Six years ago and the state is still not transparent. There are more. Such as the Council for the Judiciary, which wants to guide the judgment of the judge via national guidelines on penalties, the Diessen case, the Saban case, Donner who fiddled with the SGP case.

Forcing the legislator to exercise due care
If it is possible to test directly against the Constitution, it can be prevented that legislation insidiously undermines the rights and control of citizens. That is a job for a constitutional court. A group of judges tests a new law against the Constitution. It will not surprise you, we do not have such a court and are
therefore an outsider.

Having such a court is the norm. Halsema wanted the judge to be allowed to test (new) laws against constitutional civil rights. Of course, that proposal did not make it under Rutte.

A state commission set up by Rutte also advises the establishment of a constitutional court. Desperately necessary, according to this committee because of 'among other things reduced attention to the quality of legislation and an increase in the number of citizens going to court because of flaws in legislation'.

Tjeenk Willink uses the same arguments in 'De Ververloosde Staat'; no attention to the quality of legislation and a lack of attention to the requirements of the rule of law. He also argues for a constitutional court, just like Mr Fortuyn in his book De Puinhopen of eight years of Purple.

But despite the advice of his own state commission, Rutte and Ollengren are going to 'think again'.

Appointment of judges
Judges are appointed for life by Royal Decree. This guarantees their independence. And their additional positions must be known. This prevents a conflict of interest. But how does such an appointment come about? At the Supreme Court, the highest court in criminal and civil cases, it goes like this.

First, the Supreme Court itself looks for candidates, resulting in a list. The Lower House then asks the Council of Ministers to choose from that list of six candidates. The chance that a truly independent, government-critical mind will be appointed is of course zero.

They won't be on the list anyway. And if one slips in between, the Council of Ministers will hand it over.

It is more or less the same for ordinary judges. New judges are selected and proposed by the Council for the Judiciary. Members of that council are appointed by Royal Decree. Such a decision is nothing more or less than a decision of the government! So the government can completely control the Council for the Judiciary.

Progressive thinkers or freethinkers simply cannot get in! Only the politically acceptable judges in The Hague have a chance. In short, the government (executive power) controls every judicial appointment procedure. Rutte has been Prime Minister for almost 12 years.

This means that all appointments over the past 12 years have been driven by the wishes of Rutte and his colleagues. Suppose a judge is appointed at the age of 35 and stops at the latest at the age of 65, then more than a third of the judges will be appointed by Rutte et al! What do you mean independent justice? The Council of State is also not independent

The Council of State (RvS) is the highest court in disputes between citizens and governments (the executive branch). The administrative judge as it is elegantly called. Almost every decision of a government is open to objection and appeal and you can go to the Council of State to get a decision through a number of steps. That is settled in
the General Administrative Law Act.

The Council of State does two things; Judging administrative law and advising the legislative power (government, 2nd and 1st Chamber) on the quality of new laws. This mixing is strange, of course, and an international court, the Procola judgment, put a stop to it. The tasks were separated on paper.

So much for the theory.

The site of the Council of State lists all members who are administrative judges, approximately 50. You will also find the members who advise the government and the House of Representatives on new legislation; 2 pieces. You can view their background for all of them: education, previous employers, additional positions, side jobs, you name it. In total there are 20 members.

With about 50 members we find backgrounds such as judge or counselor, mayor, senior civil servant in a ministry, state attorney, former politician (even ministers). The boss is Thom de Graaf, former Member of Parliament and former Deputy Prime Minister. In short, the us-knows-us content of the members of the Council of State with the current Hague politics is high and cannot be denied. You can shout out loud that there is no underhand influence, but at least the Council of State has the appearance against it. Make no mistake, almost all of these people belong to the 'small circle' and have long gone through the fine-meshed Hague political filter as described above!

The government has a major direct and indirect influence on the judiciary. Not only through the law made by the government, 2nd and 1st Chamber, but also the appointment procedures that run strictly along political lines and the unmistakable links between the RvS and those who populate the Binnenhof. The same applies
for advisory boards in The Hague, such as the Court of Audit, the Social and Economic Council, the Ombudsman, the Dutch Safety Board, etc. Everything and everyone is appointed through strictly political lines. This way of operating puts the ax in our democratic constitutional state. You can read how it could be better in the last part of this series.

Karel Nuks

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