‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

zaterdag 1 februari 2020

Dikastophobia - a dangerous populist strategy to prevent judges from controlling government power

Film still from Nosferatu, 1922

(Also in Bulgarian)

"Dikastophobia" (Δικαστοφοβια) means fear for judges. It is a political strategy of fear mongering that often emerges in times of social unrest. Populists will first spread anxiety and mistrust on (social) media and then use fear for judges as a political instrument in the struggle for power and power conservation. A good example of dikastophobia are the baseless personal attacks and character assassination of judges in Poland. State-controlled media in Poland discredit the judiciary and destroy its credibility and authority.

A constitutional crisis often starts by attacking judges. Because they are an easy target. After all judges depend on the legislative and executive powers for almost everything: for their appointment, for their powers, for their budget, their housing, for the laws that they must apply and for the execution of their judgments. Therefore
Alexander Hamilton, one of the founders of the American Constitution, in 1788 called judges "the least dangerous branch of government. (-) It may truly be said to have neither force nor will, but merely judgment."  

Moreover judges are extra vulnerable because they have to correct the political powers if they exceed their powers. Under the rule of law no branch of government is above the law and jusitfied minority interests must be respected by the majority.

But "dikastophobes" will frame judges as a danger for democracy. They will portray judges as an elite. And they will openly question the legitimacy of judges because, unlike politicians, judges are not chosen by the people. Dikastophobes will try to abolish life tenure for judges, that should shield them from the political pressure that comes with periodic accountability to an electorate. And they will create a false contradiction between "national" and "foreign" law. Populists and nationalist movements will put judges under suspicion of treason when they apply European and international (human rights) law. They will deny that in a globalising society international understanding and co-operation is unavoidable.

However the fear for a gouvernement des juges is not realistic. Unlike politicians, judges are no policy makers. They have no political interest. They seek, within the limits of the law and their duty, for solutions in individual legal cases.

In young democracies like Poland and Hungary we now see the poisonous fruits of dikastophobia. The administration of justice in those countries has become a matter of Zivilcourage. Not only for judges, but also for prosecutors and lawyers. For the first time in history of the European Union, we must be genuinely concerned about the good working of the rule of law in some of its Member States.

We should draw lessons from these worrying developments because there is no guarantee that dikastophobia will not spread over Europe. Over the past years, in many European countries, xenophobia and populism were promoted by extremist political groups. We must remember that judges are much more vulnerable than the term "third branch of government" suggests. Separation of powers and judicial independence do not automatically strike a balance between state powers.

Therefore dikastophobia is a dangerous political strategy to prevent judges from controlling government power. Those who deliberately undermine public confidence in judges strike at the roots of the rule of law and our democratic societies.

Marc de Werd is a senior judge at the Amsterdam Court of Appeal. He is also professor of Justice Administration at the University of Amsterdam and member of the Consultative Council for European Judges of the Council of Europe.

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