The Low Countries. Jaargang 6

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Chronicle of a Crisis Foretold
The Judicial System in Belgium

The Belgian judicial system is failing. This is not a conclusion which has been reached recently, following the failure of judicial bodies in a number of cases involving missing children and the consequent mass protests.^1. The maladies of the judicial system were already clearly visible at the beginning of the 1970s. Newspaper cuttings from those years talk about the pernicious influence of political appointments, outdated working methods, bottlenecks in the courts, and judges being out of touch with the real world. This diagnosis was made repeatedly over many years. But it did not lead to radical reforms. There are at least two explanations for this. First, the inertia which is a result of the tenacious, almost unyielding balance of power in politics. Second, the way in which the political agenda is drawn up in Belgium.

1. See The Low Countries 1997-98: pp. 38-45.

The tenacious balance of power

Those observing Belgian politics often see inconstancy. Politicians enter and leave the political stage in quick succession, accords come and go, projects die a premature death. Yet the capriciousness of political life is more appearance than reality; continuity is the rule rather than the exception.

One hundred years ago there were three political parties in Belgium: a Catholic party, a Liberal-Conservative party and a Socialist party. Up to the present day, that is to say for a century, they have dominated the political landscape. There is durability, too, in the balance of power between the various parties, especially when one looks at their positions at the various policy levels. Even within the parties, constancy is evident; a ‘changing of the guard’ has seldom brought renewal. To a certain extent, this is not very surprising. The large configurations are built on the two fault lines which, until recently, continually determined the political agenda: the antithesis between Catholic and Liberal, and the struggle between capital and labour. Their ideological foundations were an accurate reflection of what was going on among the largest social groups, and this was the basis of their considerable resilience. The division of the parties some 20 years ago into Flemish and French-speaking configurations was also an opportunity to use the ethnic

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fault line. But other factors were also involved. Christian Democrats, Socialists and Liberal-Conservatives gradually restricted entry to the political market, meaning in effect that a numerus clausus operated for many years. When the political dikes threatened to burst, these political parties closed ranks to defend their positions of power. They formed a joint border guard and made market agreements, thereby keeping out the competition. This is what is known in the business world as cartel-forming, defined in dictionaries as ‘a combination of independent commercial enterprises designed to limit competition’. The key method was the control, by means of political appointments, of the civil service.

Continuity is important. It works as a shock-absorber when the body politic sails through turbulent waters. In difficult times, it preserves the strength of the regime more or less intact. At the same time, continuity has gradually undermined the legitimacy of the political system because it has been too slow to respond to changes in society.

An outdated political agenda

Virtually no-one within the political class saw the storm which has struck the judicial system approaching. This is what happens when there is too great a divergence between what politicians consider important and what the people consider important. The structuring of the political agenda is a major undertaking. Every week, thousands of dossiers are produced for consideration by the authorities. Only a few make it as far as parliament or political forums. The route is strewn with obstacles. A problem must be sufficiently visible for it to be recognised as a signal from society. That is not always the case. There is a second hurdle: the acknowledgement that an issue has transcended the level of the individual and that government intervention is desirable

Cross-section of the Brussels Palace of Justice.

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and possible. Most issues founder at this stage. The third hurdle requires the mobilisation of supporters. This can be done through established pressure groups, or with the aid of petitions, motions or media attention. Of course, it is not possible to deal simultaneously with all the issues which have reached this stage. Certain demands are given priority on the agenda, while others are pushed to one side. There are also problems inherent to the process of deciding what is urgent and what is not. Priority rules and compromises are employed. This is the final hurdle.

So what has gone wrong in recent years? Why has the malaise within the judicial system not reached the political agenda?

1.	Over the years there has been a powerful automatism behind the selection of dossiers. Signals from the classic fault lines are given priority. There are issues which rarely meet obstacles: issues of bio-ethics disputed between Catholics and non-Catholics; disputes about wage indexation; dossiers which divide Flemings and French-speakers. The reverse side of this is that everything which cannot be packaged in this way is ignored. And that has been the case with a great many issues involving justice. In Belgium, problems and needs are seldom spontaneously acknowledged if they diverge in any way from what is routine.
2.	During the past fifteen to twenty years, the attention of the body politic has been focused almost exclusively on the resilience of ‘Belgium Ltd’. That was justified. A system which loses its effectiveness also loses its authority and legitimacy after a time. The terrible example is the German Weimar Republic, which fell like a ripe fruit into the hands of the Nazis in 1933. This regime failed to protect purchasing power, employment, security and so much more. In Belgium the state's ability to perform has become an obsession. This is not surprising. The task can be expressed in figures: it is a question of public debt and inflation, of unemployment and crime. And, in terms of the European Union, the Maastricht treaty is always the point of reference. But a one-sided policy is full of risks, and obstructs a clear view of other issues.
3.	Some problems which have been neglected have a limited visibility. This means that they do not slide easily onto the political agenda. Many people have been left, figuratively speaking, scarred by their encounters with the legal system. Some have waited for many years for a judicial ruling; some have received hostile treatment from a member of the juvenile court; for some the police would not listen to their justified complaints. Such matters are not easily expressed as figures and tables. In such a situation it can take a long time for private troubles to become public issues.
4.	Problems only reach the political agenda if interest groups make a great deal of noise. Collective pressure is essential - a condition which has not been fulfilled in the judicial domains. The judiciary kept its mouth firmly shut. The Bar busied itself with its own internal problems and remained silent. Those suffering under the failure of the judiciary had no voice; neither those seeking justice nor the victims of crime. This led to outright neglect of the justice department by politicians. Less than 2% of the government budget went to that ministry (and several billion franks of this went to pay the priests and ministers of recognised religions, since they also are the responsibility of the Minister of Justice). Budgetary

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	penny-pinching has led to a situation in which there is more money for the dispensation of mail than for the distribution of justice. The lack of interest in this sector is apparent from the composition of the previous Dehaene government (1992-1995). Melchior Wathelet was not only Minister for Justice, but also, and primarily, Deputy Prime Minister and Minister for Economic Affairs. So was the department of justice simply a light entertainment to which a policymaker now and then devoted a few free hours?
5.	The alarm signals which should indicate the development of acute problems do not function as they should. Early-warning systems, such as local churches or community spirit, have disappeared or become ineffective. The sensors which the Socialist party had in the past are mostly no longer monitored. The party has in actual fact left the urban workingclass areas which used to be its biotope. The media, it is true, now picks up some of these signals; they make problems public knowledge. Yet their motives cannot be 100% pure, given the commercial pressure which also exists. It forces journalists to report on issues of struggle, competition and emotions. The reverse side of the coin is that even in the context of the pen, microcomputer or camera, certain needs remain hidden. Journalists were as shocked as politicians by the eruptions of the 1990s.
6.	The process of drawing up the political agenda in Belgium suffers from the lack of a culture of debate. In recent years, politicians have published material which could have been a rich source for discussion. I am thinking here of the Citizen's Manifestos (Burgermanifesten) of the Liberal-Conservative Guy Verhofstadt, and of Farewell to a Stepson (Afscheid van een stiefzoon) of the Socialist Louis Tobback. It is strange and disappointing to see how quickly those texts have disappeared from the public forum. Apparently we do not value true dialogue. There is also the default of the academic world. Academics do not like to be involved in public debate. They are slow and cautious in picking up the gauntlet cast at their feet in, for example, the editorials of quality newspapers. If this agoraphobia could be overcome, the body politic would receive a greater supply of oxygen.
7.	For some thirty years, interesting proposals have been circulating regarding the depoliticising of judicial appointments and promotions. In all this time, little attention was paid to this issue, not even when the negative consequences slowly became obvious. However, immediate action was taken at the end of 1996, when new legislation initiated a more objective recruitment of judges. This surprising development brings us to something which has repeatedly broken through the inertia: accidents and incidents. It is the awful case surrounding Marc Dutroux, in the summer of 1996 (when the bodies of children who had been abducted and sexually abused were found) which has got things moving in the judicial domain. The fact that accidents work as a motor is a constant in Belgian politics. The legislation relating to the transport of dangerous substances by road followed a terrible accident. Safety in department stores was not regulated until after the fire at the Innovation store in Brussels in 1967, which cost 325 people their lives. And there are many more examples. In some issues, therefore, a breakthrough only occurs after a complete or

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partial disaster. It could be worse, one might say. But there is a dangerous side to this type of dynamic. In terms of human suffering, the cost of renewal is extremely high. It also leads to panic policies, which is seldom a good thing. And, promises made in haste can lead people to expect too much. If those promises remain unfulfilled, they will do more harm than good to the government's credibility.

Ruling with tainted authority

Protests such as those relating to the judicial system are the symptoms of tainted authority. It may take time for a crisis of confidence to come to the surface via the ballot box or a mass demonstration. Politicians with any degree of sensitivity will probably have seen or felt something of the malaise. But the instruments of politics contain methods which make it possible to continue governing with decreasing credibility. This is one way of postponing reform.

1.	For some time political favours have been used as a panacea. Voters' discontent could be bought off with a civil service job, the sorting out of a tax dossier, a house in a decent neighbourhood, an easy time during compulsory military service (when this still existed). This typically Belgian technique has been effective for a long time. And it probably explains why so many Belgians are Janus-faced: they find that politicians have little credibility, but still see their offices are useful places of pilgrimage. Thus the voter, too, keeps the ‘amigocracy’ alive.
2.	Political favours are a poor foundation for authority. So is the technique which involves taking the moral high ground in a crisis. In the United States this measure has often been used in recent years in an attempt to reduce criticism of the body politic. What this actually means is that politicians join in the groundswell of indignation, focusing on issues such as crime, drug abuse among young people or corruption. The impact of this tactic is equally short-lived. And there is always a danger that the manoeuvre will be seen as simply climbing on the band-wagon. Considered in this light, the caution with which Belgian politicians have reacted to the moral row surrounding the Dutroux affair is understandable. But the temptation must have been considerable.
3.	‘Government at a distance’ is a more effective technique. The responsibility for certain measures is pushed on to external, remote institutions: the European Commission (and its Maastricht Treaty), the International Monetary Fund, the World Bank, or other ‘experts’. The burden of authority is then, as it were, transferred to the shoulders of others. This is confusing to the people and can, at least in the short term, silence criticism. The negative backlash, however, can be considerable.
4.	One emergency tactic is the replacing of lost authority with a stream of orders and prohibitions. It is then not a matter of authority (i.e. accepted power), but of power tout court. There are numerous risks attached to such a course of action. It brings the government closer to a policy of repression. Furthermore, monitoring whether all those legislative measures are observed is a very costly process. And Belgians are experts in evad-

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ing legislation, so that a form of chain reaction is set in motion. The minimal effect is countered by increased government legislation, which in turn encourages the search for escape routes. In any case, that same government often sets a bad example itself. In a number of instances it sidesteps its own rules and, perhaps less noticeably, shows little respect for the international laws to which it has subscribed.

What can be done?

In my opinion, the healing process is first and foremost a task for the judiciary itself. A great deal can be improved by internal control of this crucial institution. High-ranking judges have indicated that the law allows them to call to account those who fail in their professional duties. However, this has apparently seldom happened in the past. Moreover, internal control should not be a question of one-way traffic, from the top downwards; the lower ranks of the judiciary should also be able to point out faults. A young judge cannot be denied the right to speak, even when to speak is to contradict. Open dissidence and contradiction do not, however, fit in with the actual culture of the judiciary. That is a shame, as is apparent from developments in France and Italy, where open opposition has been allowed within the magistracy for a quarter of a century. On the French side this has to do with the establishment, in May 1968, of the so-called ‘Syndicat de la magistrature’. This organisation has used the weapon of protest to fight for affordable legal aid and for the banning of hard and soft forms of class justice. In Italy, albeit in more turbulent circumstances, a similar process of politicisation has been operating. It is surely no coincidence that in these countries the judiciary plays such a crucial role in sanitising politics.

External control, then. Recently the relationship between judges and politicians has come under scrutiny. Some people believe that a considerable extension in political monitoring of the judiciary is necessary. I do not support this; partly because of the principle of the division of power - although that principle is often used as a get-out - but above all because Belgian politicians have shown in the past that their interference mainly comes down to intervention in appointments and promotions. What the politicians have to do is to ensure that the self-healing process in the judiciary actually happens. They can, as they have done in the area of collective labour relations, establish a ‘highway code’ which makes the salutary debate within the judiciary possible. They should not, however, take on the role of traffic police. This new role for the political personnel causes a number of problems. Politicians deal with issues according to standard procedures. When a crisis occurs, it is as if they ‘mobilise’ a manual, the effectiveness of which they know and value. For example, they turn to trusted established pressure groups (trade unions, health services,...) to clear the terrain of political mines. Or they package an issue as ‘ethnic’, which enables them to fall back on 30 years of conflict between Flemings and French-speakers. It then becomes a routine task. But this does not work with the current problems surrounding the judiciary, and there are various explanations for this. The long-standing neglect of this sector has already been discussed above. Because of it, little experience has been gained in this area

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- in other words, there are no tried-and-tested manuals available. The crisis plan needed today does not exist. Neglect is not the only reason why the crisis surrounding the judiciary will prove to be unmanageable. Politicians are confronted with a new type of citizen: the parents of Julie, Melissa, Ann and Eefje (the girls who were abducted and murdered), the militants of associations that are supporting the families of missing persons through organised meetings and poster campaigns, the families of the ten paras killed during a un mission in Rwanda in 1994, and of the victims of the Nijvel gang (28 dead in a series of unsolved ‘supermarket massacres’ in the mid-1980s). These people know what they are doing. They surround themselves with lawyers, make an ally of the media and are able to persuade hundreds of thousands of people to sign a petition or join a rally. They are formidable rivals. In January 1998, for example, Paul Marchal - the father of Ann - established a new political party. Moreover, politicians cannot turn to their familiar discussion partners from the traditional pressure groups for negotiation and compromise on justice issues. They are consequently forced to tread paths which lead them into unknown territory. This creates confusion and uncertainty. Thus the tendency arises, against their better judgement, to do anyway what they are so adept at: to package a new issue under an old label. An ‘ethnic’ label has already been sought for Dutroux: the prototype of a Walloon living off the state - an unemployed ex-prisoner who had the time and money to fit his houses with secret hiding places for abducted children. Or Liège as the Walloon Palermo-on-the-Maas. This gross misrepresentation of the problem has met with opposition, not to say disgust. The problems facing the judicial system require an entirely new approach. They require more than the crisis management which has been the custom in Belgian government for so many years.

luc huyse

Translated by Yvette Mead.

Epilogue (June 1998)

On Thursday April 23 1998, some time after this article was written, the infamous Dutroux succeeded in escaping. Although he was recaptured after only three hours this incident sent an incredible shock throughout the country. It was seen as the ultimate demonstration of the incapacity of the Belgian justice system to perform its primary functions. But the population and the media directed their anger immediately towards the political elite. As a consequence the Minister of the Interior and the Minister of Justice both decided to step down, later followed by the head of the federal police force. Then followed a typical Belgian scenario. Almost all parties, in and outside the government, decided to join forces in order to counter the general tide of distrust. They started an intensive round of discussions and produced, after only three weeks, a major compromise agreement on the reorganisation of the police and of the judiciary. Reforms that had been in the ‘refrigerator’ for years, measures that in the past were met by all sorts of obstruction, have now been set in motion. Decisions were taken to end the war between the various police forces. A High Council for Justice will supervise appointments in the judiciary in a move to depoliticise this matter, and will make an external control of the management of the courts possible. This is a new example of what has been called the Belgian miracle: turning an accident into a powerful instrument for breaking through inertia.