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The Norwegian Supreme Court and courts must be protected from abuse of power by politicians. The tracks from Poland and the United States are terrifying.
Judge Yngve Svendsen advocates giving the Norwegian Supreme Court and courts stronger constitutional protection. He wants to prevent politicians in the future from touching the independence of the judiciary, as has happened in several European countries. Photo: Dan P. Neegaard
That is the opinion of the Judicial Commission. It is appointed by the government to evaluate the independence and organization of the courts.
– Courts are under pressure in some European countries, such as Poland and Hungary. In Norway, there is a strong political culture to ensure the independence of the courts. But also with us it is necessary to better ensure the rule of law, says Oslo District Court Judge Yngve Svendsen.
He is the head of the commission that recently presented its final report.
– Events in Europe have created a greater awareness of the importance of protecting the courts also in Norway against short-term political currents, says Svendsen.
Therefore, the Commission proposes to give protection to the Norwegian Supreme Court and courts in the Constitution.
Today, the principle of independence of the judiciary is enshrined in the Constitution. But working conditions, appointments and administration, etc., are regulated by general laws. These can be changed quickly through a narrow majority in the Storting.
– It is necessary to modernize the provisions of the Constitution on the courts and enshrine some important principles in the constitution, says Svendsen.
The Commission is concerned with protecting the principle of distribution of power, which was enshrined in the Constitution in 1814. According to this, we have three state powers:
- The Storting
- Government
- Courts
The Storting is legislative and empowering. The government is executive power that implements the decisions of the Storting. The courts are critical power and judges in accordance with the laws passed by the Storting.
The courts also decide whether the laws passed by the Storting are not in conflict with the Constitution.
Judge Yngve Svendsen, Head of the Court Commission. Photo: Dan P. Neegaard
Ensuring that changes in the courts have broad support
By lifting the most central laws that guarantee the independence of the courts in the Constitution, the Storting’s political desire to change them will take several years:
– A constitutional protection will avoid rapid legislative changes of a small political majority. This ensures that the changes that are made are well thought out and have broad political roots, says Svendsen.
There is a built-in slowness for changes to the Constitution: a bill that is presented, at a given time, cannot be adopted earlier then that a new election has been held.
Proposals must be submitted within one of the first three years of a term. Proposals can be processed in the first, second or third year in next period in four years. Amendments to the Constitution also require a 2/3 majority. And 2/3 of the representatives will be present in the room when decisions are made.
What is happening in Poland, Hungary and the United States?
In Poland and Hungary, the government attacked the country’s Supreme Court and tried to remove more judges. In an interview with Aftenposten, the head of the Polish Supreme Court spoke about a series of reforms that she believes are aimed at taking political control of the courts.
The EU has activated Article 7 of the EU Treaty against Poland and Hungary. Article 7 is called the “nuclear button” in EU cooperation. It signals the initiation of a criminal process that, ultimately, could result in the deprivation of the right to vote in the union to Poland and Hungary if they do not eliminate dominance over the courts.
In the United States, the so-called “courtship” has become a hot topic in the electoral campaign before the presidential elections.
The Supreme Court of the United States has been made up of nine justices since 1869. But now Democratic presidential candidate Joe Biden is opening up to increase the number of justices, that is, what Americans call “court of track.”
It comes after Donald Trump likely managed to get conservative Amy Coney Barrett approved as a Supreme Court Justice before the election. With Barett in place, the Supreme Court will have a majority of conservatives, 6 to 3.
Whether the majority are conservative or liberal judges can be decisive when politically disputed issues of value must be decided.
Several in the Democratic Party have spoken out to counter the conservative majority by appointing a sufficient number of new “democratic” justices to incline the majority.
This is possible because the Constitution of the United States today does not say anything about the number of justices on the Supreme Court.
Svendsen and the Judicial Commission will enshrine the following in the constitution:
- Independent administration of the courts
- Independent appointments of judges
- Judges must, as a general rule, be independent
- Maximum number of judges on the Supreme Court
- Establish a judicial hierarchy
Fear of demonizing the judges
Peter Frølich has long been concerned with providing constitutional protection to Norwegian courts. He is the Conservative Party’s justice policy spokesperson. He has tabled proposals for amendments to the Constitution, just within the deadline (third year of this term), on the same issues that concern Svendsen.
The Storting power thus adopting the amendments to the Constitution that the Commission proposes after the elections, if the Storting so wishes.
Peter Frølich, Conservative Party Justice Policy Spokesperson Photo: Gorm Kallestad
Frølich believes that the courts must be equipped to stand in the way of politicians who want to pursue “illiberal policies.”
– It’s just looking at the world around us and what is happening in Poland and Hungary. But also the discussion about “courtship” in the United States.
He says Norway is well prepared for traditional constitutional crises, such as the Quisling coup in 1940. He believes that future attacks on democracy will begin with attacks on the courts.
– It can start with a delegitimization of the courts and an attempt to turn judges into enemies of the people.
He says that it will start “small”, with “demonization of the judges.” That the judges are branded as elite who abuse their power.
– Invite replacements in the next round, as seen in Poland and Hungary, he says.
– But do you see any examples of this in Norway today?
– We do not have politicians today who are so populist that they deal with that. And that’s the point: we must act in good times. And secure us a frame when storms threaten.
The Labor Party has not taken a position
The chair of the justice committee, Lene Vågslid (Labor Party), says the commission’s proposals are important. And that it is important to guarantee the independence of the courts
Lene Vågslid, Chairperson of the Justice Committee (Labor) Photo: Håkon Mosvold Larsen / NTB scanpix
– We will review the report carefully and look forward to discussing it in relation to the constitutional proposals Frølich put forward this fall, he says.
