The charter of foundation of the political appointments in the magistracy. The court of cassation during the first years of Belgium's existence
(1998) Revue Belge d’Histoire Contemporaine — Vol. 28, n° 1-2, p. 153-202 (1998)
Files
No attached file found for this publication.
Details
- Authors
- Abstract
- Immediately after the Independence the executive power proceeded to appoint a long list of magistrates. At the end of that list of 400 names came the newly appointed members of the Court of Cassation which constituted a new jurisdiction. This article wants to look at the appointments of this Supreme Court in the light of the extreme politicisation which accompanied them. At that time, the Court of Cassation was considered as a judicial organ as well as a political institution. This explains why the appointments were the subject of complex negotiations. Firstly, I show how the press and the public reacted. These appointments provoked an outcry unique in its kind in the history of Belgium. Secondly, I examine the composition of the Court of Cassation by distinguishing between the office of the public prosecutor and the bench. The office of the public prosecutor seems to have been composed of young liberals and anticlericals. In contrast, the majority of the bench seems to have been of catholic persuasion. A study of the best-known personalities helped me to determine the political nuances of these magistrates. From my analysis it appears that the appointments were highly politicised. The exact meaning of this concept has yet to be agreed upon. Certainly, there were very biased interventions, as for example the one made by the Church in the case of Etienne de Gerlache. However, beyond these it turns out that the real issue was not politicisation, but politics. If Raikem, the Minister of Justice, played a determining role, another personality about whom the press hardly spoke also had an important influence on the decisions, i.e. Joseph Lebeau. This man succeeded in appointing parliamentarians in the Court of Cassation in order to eliminate them from Parliament as there was an incompatibility between the function of magistrate in this court and the function of representative. In this manner Lebeau removed those persons who were most hostile to his politics and nipped a progressive Liberal movement (represented by Tielemans in particular) in the bud. The objective of Raikem and Lebeau was to strengthen the legitimacy of the state by reinforcing the royal prerogative of appointment. These appointments were the only ones to provoke that much reaction. Since then, with very few exceptions, this politicisation of the magistracy has been kept hidden. Today, however, the issue is being discussed again in the hope that interventions will become transparent. The judicial power should aspire to represent the various opinions among the population.
- Affiliations
Citations
Nandrin, J.-P. (1998). The charter of foundation of the political appointments in the magistracy. The court of cassation during the first years of Belgium’s existence. Revue Belge d’Histoire Contemporaine, 28(1-2), 153-202. https://hdl.handle.net/2078.5/71217 (Original work published 1998)