Recently, a Dutch court ruled – again – in favour of Urgenda, an organisation of climate activists. Both court rulings require the Dutch government to increase its efforts to reduce greenhouse gases (my blogs of 2015 and 2017). This unexpected court ruling has opened a legal debate whether courts are interfering with politics. It seems unfair that (unelected) activists use (unelected) courts to force (elected) governments into unwelcome political decisions.
It’s thought-provoking to compare the outcome of this Dutch court ruling with the US debate on the appointment of Brett Kavanaugh to the US Supreme Court. In order to prevent courts from issuing political rulings, countries may decide to influence the composition of courts to prevent future unwelcome political court rulings. The Kavanaugh debate is a clear example.
Most likely, the Dutch government will appeal to the Dutch Supreme Court and ask to repeal the Urgenda ruling. I suppose that the Dutch Supreme Court will (again) prevent lower courts from issuing political rulings. Nevertheless, the (small) increase in Dutch political court rulings is worrisome. Someday, the Dutch Supreme Court could also issue political rulings.
Political court rulings undermine the “trias politica“, a fundamental philosophical concept that requires a separation of powers into the executive branch (Government), the legislative branch (Parliament), and the judicial branch (Courts). Why bother having general elections if courts are able to overturn political decisions? It’s unlikely that political parties would accept that.
Although my above considerations apply to the Dutch situation, I realise that a similar debate is going on in other European countries, like Poland. As a result, the Polish Government is doing the same as US governments have been doing for decades: appoint Supreme Court and lower judges who do not issue unwelcome (political) verdicts.
Sooner or later, Dutch Parliament will use the Urgenda rulings as a tool in their political discussions. So far, only legal experts are giving their opinions and many disagree with the latest Urgenda ruling (eg, Wim Voermans).
A Dutch political cartoon by Tom Janssen is quite revealing: a judge going to Parliament to declare next year’s Budget, including the tax increases following the judge’s decisions on climate change.
If we accept that judges issue political rulings then we should also accept that politicians will want to appoint judges (eg, Kavanaugh). Ultimately, the “trias politica” concept will more and more become a farce. If we don’t accept political debates on judicial appointments then we must prevent judges from issuing political rulings – of whatever political colour.
Gold (2007) by Interference
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Note: all markings (bold, italic, underlining) by LO unless stated otherwise
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