On Friday 22 November 2019, a celebration in honour of Paul Lemmens’ emeritus status was held, in the company of many of his friends and colleagues. For this occasion, a number of them wrote a contribution for the wonderful Liber amicorum Paul Lemmens. In a special blog series we have drawn attention to several contributions in this book. To conclude our series, we give the floor to the celebrated emeritus himself.
I thank my colleagues from the Leuven Centre for Public Law for setting up a series of blogs related to the Liber Amicorum that was offered to me at the occasion of my reaching the emeritus stage at the university. I warmly thank the authors who went through the trouble of writing a contribution for the book. I feel privileged to have such dear friends and colleagues.
What follows is a short version of my speech during the emeritus ceremony. That speech was about the role of courts in upholding the law, but also about the limits to their action. My presentation was not innovative. But I thought it was a good opportunity to recall some important principles, at a moment when they were challenged in some quarters. In due time the speech will be published in its entirety in the Law Faculty’s Acta Falconis.
Courts as guardians of the law
An important aspect of the rule of law is that individuals have the right to an effective judicial remedy enabling them to assert their rights. This is true for any right, whether an “ordinary” or a fundamental right. The right to a remedy can be exercised against another individual, a private entity or a public authority.
Judicial review of acts or omissions of public authorities has become controversial in recent years. Media, politicians and academics sometimes criticise courts for being too activist when they annul or declare illegal decisions adopted by bodies that are democratically legitimised.
In 1803, in the famous case of Marbury v. Madison, Chief Justice Marshall wrote that “it is emphatically the province and duty of the Judicial Department (read: the judiciary) to say what the law is”. That is and remains one of the cornerstones of a society based on the rule of law. The legislature, the government, local authorities, independent agencies, all are bound by the law, and it is the courts’ task to ensure that their actions remain within the limits of the law.
This is especially true with respect to human rights. They belong to the fundamental values of a democratic society. It is the courts’ task to uphold the foundations of the democratic system, if necessary even against a public authority acting with the support of a large part of the population. Human rights are most relevant when they are invoked for the protection of persons belonging to a minority or holding minority opinions. Recent developments in some parts of Europe show that illiberal regimes try to “tame” the judiciary, so as to be able to impose their views on how to organise the community on everyone, without being hindered by legal obstacles and regardless of human rights.
Limits to judicial action
While courts must be firm, and while in upholding the law they inevitably will have to exercise a certain degree of (judicial) policy, there are also limits to what they can do.
I would like to mention three limits in particular.
First, there are limits flowing from the legal texts to be applied. As has been said with respect to the European Convention on Human Rights: treaty interpretation must not amount to treaty revision.
A second and more important limit is the separation of powers. Policy choices are in principle for the legislature and the executive to make, not for the courts. That does not mean, however, that courts should refrain from reviewing policy choices. They can and should examine whether the authorities respected the law, including general principles of law, and to that extent they can hold, and sometimes must hold, that state action is arbitrary or manifestly unreasonable.
Finally, courts should act with some modesty. The law cannot solve all problems, and certain problems can better be solved by other bodies. Judicial self-restraint may sometimes be wise.
Judicial authority and judicial legitimacy
It is the noble task of courts to uphold the law, and in particular to ensure respect for human rights. But “noblesse oblige”: court decisions will be accepted only if judges comply with some basic requirements. The courts’ authority depends on their legitimacy.
This means in the first place that judges must have the necessary experience and skills to deal with matters of law. At the same time, they must possess a number of human qualities, such as a willingness to listen, courage and an ability to make decisions.
Second, judges must be fully independent. They must cultivate the sense of independence. Conformism is not a virtue of the judiciary. There are situations where courts may have to defy the so-called public opinion. At the same time, there is also an obligation for the other state powers to respect, and even actively promote, judicial independence.
Finally, courts must adjudicate cases in such a way that they offer to the parties the guarantees of a fair trial. This is what distinguishes courts from other authorities.
Only when these conditions are fulfilled will it be possible for the judiciary to inspire confidence in the public. Only when citizens know that they can count on the courts, can the law continue to rule.
Paul Lemmens is emeritus professor of human rights at the Catholic University of Leuven (Leuven Centre for Public Law). He is also a judge in the Belgian Council of State (on leave) and currently serves as judge in the European Court of Human Rights.
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