Scope for a more transparent justice system – WRR Investigation 26

More transparent administration of justice demands an openness to criticism and debate.

An essential element for a functioning constitutional democracy and the authority of the courts is that the administration of justice adapts to the increasingly intensive interaction with society. This is stated in the Investigation Speelruimte voor transparantere rechtspraak (‘Scope for a more transparent justice system’) by the Netherlands Scientific Council for Government Policy (WRR). The study presents ideas for a more contemporary transparency of the administration of justice relative to the different ‘outside worlds’ with which it comes into contact.

To what extent should the administration of justice be open to debate and criticism? The efforts of the judiciary in recent years have been aimed mainly at ensuring that the work of the courts is open and understandable. The WRR argues that the debate about public support upon which the administration of justice must rely in today’s society can ultimately not be conducted without addressing the question of the scope for discussion with and criticism of the administration of justice.

Society is changing under the influence of globalisation, individualisation, digitalisation, populism and mediatisation. This creates new challenges for the judiciary. In addition, the role of judges has changed as the work of the justice system has become more politically and socially sensitive. At the same time, the justice system has itself more explicitly sought out the public debate in recent years, and increasingly finds itself facing the question of how it should deal with a turbulent opinion climate about its functioning. The work of judges is scrutinised ever more closely. This is leading to a growing desire to gain an insight into the considerations and thought processes that underlie judicial opinions, and to be able to discuss them. In essence, this is a desire to be able to question the administration of justice.

However, this desire is at odds with a number of traditions and mores, and also runs up against objections of principle. The central argument in the WRR Investigation is that the judiciary should pursue the debate about the scope for openness to criticism, since this could influence perceptions by offering a greater insight into the thoughts and actions of the justice system. Themes for this debate could include a more communicative attitude towards society (for example in order to persuade those who lose cases as well) and the possibility of introducing minority standpoints, or dissenting opinions. Ultimately, the scope for openness to criticism is determined by a number of more or less principle-based boundaries. Moving those boundaries where this is possible and desirable, and providing a better explanation when they are not moved constitute a central task for the judiciary in the debate about transparency.

The main argument, the essays and the empirical studies in this Investigation arose within a WRR project on ‘Justice and transparency’ led by Council member Professor Corien Prins. The Investigation contains contributions by Maurice Adams, Dick Broeren, Ernst Hirsch Ballin, Marijke Malsch, Joost van Spanje, Claes de Vreese, René Westra and Willem Witteveen. The editors, Corien Prins (WRR member), Dennis Broeders, Henk Griffioen, Petra Jonkers, Meike Bokhorst and Marijn Sax (WRR staff member) wrote the main argument and some of the essays in the second part.

The book is published by the WRR as WRR Investigation 26 Speelruimte voor transparantere rechtspraak. The first copy was presented by the WRR today to Dr. N. Djebali, who was sworn in as a judge at the Court of Arnhem with effect from 1 January 2013. At that time she was the youngest judge in the Netherlands. The presentation took place in the presence of G.J.M. Corstens (President of the Supreme Court of the Netherlands), F.W.H. van den Emster (Chairman of the Council for the Judiciary) and Mr. M.C.C. van de Schepop (chairman of the Netherlands Association for the Administration of Justice), who engaged in a debate chaired by Marc Chavannes.

About the WRR

The Netherlands Scientific Council for Government Policy (WRR) is an independent advisory body for the Dutch government. The task of the WRR is to advise the government on issues from a longer-term perspective, both on request and on its own initiative. The advice is not tied to a single sector and relates to social issues with which the government could be confronted in the future. More information about the WRR may be found on the Internet at www.wrr.nl.