Proposition 51K2646

Projet de loi modifiant les articles 80, 259quater, 259quinquies, 259nonies, 259decies, 259undecies, 323bis, 340, 341, 346 et 359 du Code judiciaire, rétablissant dans celui-ci l'article 324 et modifiant les articles 43 et 43quater de la loi du 15 juin 1935 concernant l'emploi des langues en matière judiciaire.

General information ¶

Submitted by

The Senate

Submission date

May 11, 2006

Official page

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Status

Adopted

Requirement

Simple

Subjects

magistrate judicial power use of languages

Voting ¶

Voted to adopt

Vooruit PS | SP Open Vld MR

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Discussion ¶

Dec. 7, 2006 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I will first give you a brief report of the discussion in the committee before moving to a speech on my behalf and that of the group MR.

The Justice Committee examined, at its meetings of 11 and 16 October and 8 and 21 November 2006, the bill you have just referred to. This is a draft law that is submitted to us by the Senate. During the general discussion, the Minister referred to his introductory presentation before this Chamber.

by Mr. Van Parys raised remarks issued in particular by the Council of State, the Supreme Council of Justice and the intervention of the high magistrates of the Court of Cassation. I am referring to the written report.

First, he denounces the fact that the project returns to the Octopus agreement. It challenged the compromise in its fundamental provisions by fixing the term of the mandate to five years, providing that it is renewable to ten years, that it is subject to evaluation and that it applies to the heads of headquarters of the headquarters, all through an amendment of the law adopted by simple majority while the amendment of the compromise enshrined in the Constitution requires a two-thirds majority. It refers to the opinion of the State Council which stresses that the proposed regulation is contrary to the letter and spirit of Article 151 of the Constitution. This opinion is shared by Professor de Corte and the Permanent Conference of Chiefs of Corps.

As regards the assessment college, it will consist of six members, two of whom are external. This composition means that the executive power will influence the assessment. An assessment implies essentially that a person is judged. It remains to be held that the CSJ and in particular the Opinion and Investigation Committee, given its composition and its tasks, is the only legitimate body to carry out these assessments.

The first president of the Court of Cassation and the Attorney General at the Court of Cassation are evaluated at the end of their five-year term of office, although this term is not renewable. What is the reason for this evaluation? Furthermore, the composition of the assessment colleges means that the judges of the Court of Cassation will be assessed by lower-ranking judges. No appeal is possible against the decision of the assessment college, which is also denounced by Mr. Verougstraete, President of the Court of Cassation, in the note he sent to the Justice Committee. The latter advocates that an appeal for cancellation should be possible before the Court of Cassation.

He recalls that the Supreme Council of Justice has questioned the appropriateness of the evaluation and its purpose. For them, this is a negative assessment that can only give rise to punishment. The speaker considered that the assessment should rather resemble a functional interview focused on encouragement rather than on punishment. So why not create a system of incentives, a system of rewards? The procedure provided for in the bill is not feasible in practice: it will result in administrative burdens. Again, there is an echo to the words of mr. by Verougstraete.

by Mr. Wathelet joined these observations and also considered that the current system of the seven-year non-renewable term of office is not ideal. Many head of bodies perform their tasks properly. Therefore, it would be especially unfortunate to lose their expertise as body heads. However, the bill limits the term of the mandate to ten years. In the long run, we get the same situation as at present, namely the loss of acquired expertise. If one ignores the argument of unconstitutionality, he believes that the assessment can be justified; it would fit into a modern approach of the magistracy. However, this type of assessment must take into account the measurement of the workload. However, a constitutional amendment is still necessary.

Let’s go to the problem of the transitional regime proposed by the government that penalizes mandators appointed by the 1998 Octopus reform. The draft provides that they retain their seven-year term while the law principle is five years renewable once, that is, a maximum of ten years. In addition, they are subject to the new regime of periodic evaluations. He therefore wants their seven-year term to be renewed for a three-year term if the assessment is good. It actually takes back the suggestion of the College of First Presidents of the Appeal Degree Courses.

by Mr. Casaer and myself highlighted the increasingly managerial character of the head of body function and the fact that this involved a re-evaluation of the skills required to carry out this function.

The Minister responded to the criticisms in the following way.

1 of 1. The draft law under consideration does not in any way infringe on the principle of the independence of the judiciary. However, independence cannot be used as a pretext for avoiding an assessment. Article 151 of the Constitution does not prohibit the assessment of chiefs of bodies. The scope of Article 151 §6 of the Constitution is not to prevent the assessment of one or another category of mandates, but to require the establishment of an assessment for certain mandates.

For the other categories of representatives, it leaves the legislator the freedom to provide for or not for an assessment.

2 of 2. The assessment is considered unnecessary in the case of mandates that cannot be renewed. This is a strict interpretation of the objectives of the evaluation. The assessment should be considered as a dialogue offering the relevant magistrates the opportunity to draw attention to specific management issues. This will allow you to collect interesting information that helps improve the functioning of the judicial apparatus.

3 of 3. On the presence of members outside the judiciary in the assessment colleges: Since the heads of colleges are also responsible for the management of finances and personnel, it is natural to involve in the assessment, due to their specific expertise, specialists in the field, i.e. a human resource manager and a Court of Auditors.

4 of 4. On the absence of appeal against a negative assessment: this is already the case. Furthermore, it is unnecessary to provide for a possibility of appeal when the assessment is conceived as a dialogue, which is the aim pursued.

5 of 5. The assessment may be useful, if the mandate is not renewable, in the perspective of the appointment to an adjunct mandate. Furthermore, psychologically, a previously announced evaluation will almost automatically have the effect of improving management.

6 of 6. On the assessment carried out by lower-ranking magistrates: it is also not a novelty. It is common that the magistrates of the Supreme Council of Justice’s Appointment and Appointment Commission are, too, of a lower rank than the magistrates they must present. It is essential that the members of the assessment college are sufficiently specialized in the task entrusted to them.

Amendments were submitted by Mr. Van Parys and Wathelet regaining the position I have stated earlier and, after linguistic and legislative corrections, the text submitted by the Senate was adopted by 9 votes against 3.

Mr. Speaker, if you allow me to do so, I will now expose the position of my group.

Please Mr Courtois. We applaud you for your report.

Mr. Speaker, I would like to make a few comments.

The society evolves, modernizes itself and it must be admitted that the function of magistrates and, a fortiori, of magistrates head body evolves. Alongside the purely jurisdictional aspects of the function, requiring independence and impartiality, some magistrates today assume other responsibilities, including management responsibilities. The time has come to an end when, in order to be chief of corps, it was necessary to have written only in specialized journals or to be a candidate for the Court of Cassation.

Leaders have become real managers. They shall ensure the correct distribution of work in their services, whether they are magistrates of the headquarters or of the prosecutor’s office. This function is also very important for the justiciable because it participates in all the measures put in place to resolve the judicial delay. With the implementation of the Themis Plan, the managerial functions of the heads of corps will be further expanded.

As you can see, the function of head of body is constantly evolving and has multiple facets, which demand not only the legal qualifications of the magistrates who are invested in it, but also other qualities, human, psychological, managerial.

The MR has always pledged for the accountability of everyone, from the simple citizen to the highest magistrate. Responsibility involves questioning the constant effort to improve. The assessment of the management functions of corps heads is an indispensable tool, not only to help these law professionals advance in a field that is not necessarily familiar to them, but also to insuffle a modern and necessary momentum in the judicial apparatus.

As for the means chosen to concrete this principle of evaluation, was it necessary to do so through the Constitution or was a simple law enough? I must admit that I am not specialized enough, Mr. Wathelet, to make my opinion on this question. But I take note of the interpretation supported by the Minister of Justice, according to which Article 151 of the Constitution contains a positive order to evaluate and not a prohibition to get out of its scope and therefore allows to establish, by a simple bill, the evaluation of the heads of bodies of the sitting magistrates.

In any case, I share the Minister’s view when she believes that the evaluation must first and foremost be constructive, must constitute a genuine dialogue between the evaluated and the evaluators, must focus on strengthening the strengths and improving the weaknesses of each head of body.

As I said in the committee, everyone is evaluated in this country horizontally and transversally. I can’t see why the head of the body ⁇ ’t.

It is an instrument that will allow them to motivate them even more and to pull them more and more up and improve. A negative assessment made only of unconstructive criticism is indeed useless and counterproductive.

However, the assessment should not be the only instrument for modernising the judiciary. An assessment that does not take into account the realities of the field loses its objective. That is why I also believe that it should be based on a correct assessment of the workload.

Managing a court in Brussels is different than managing a court in a city with less density of population. Managing resorts where crime is essentially big banditism does not correspond to managing resorts where the most significant offences are vandalism.

In other words, a good assessment is one that takes into account the concrete circumstances of each situation. To do this, we need an effective tool for measuring the workload of jurisdictions. This modernization must also be realised by the constant investment of resources in Justice. I would like to welcome here the efforts already made in this regard by Ms. Onkelinx, but I believe that we must continue on this path.

The modernization of Justice will finally be accomplished through modern tools made available to the actors: high-performance and non-faulting IT hardware, as today in Brussels; data centralization systems; an effective Phenix project whose pilot operations, eventually ⁇ , will become effective.

The MR group considers the aim pursued by the text to be praised and, while remaining attentive to ensure that these measures are not deviated from their purpose and are accompanied by other instruments necessary for the modernization of Justice, we will vote on this text as it is submitted to us.

Mr. Speaker, Mrs. Deputy Prime Minister, colleagues, I will be very brief and limit myself to the essential.

Here we stand for a draft law that still raises special questions. What is it about? – First and foremost, I would like to congratulate the reporter, Mr Courtois, on the excellent report. From this we learned that it is about the following.

At that time we approved the Octopus Agreement in laws and translated it into the Constitution. One of the important provisions of the Octopus Agreement was the introduction of a mandate system for the chiefs of corps of the seat of the magistrature – i.e. the presidents of the courts, for example the first presidents of the Court of Appeal – in which the chiefs of corps of the seat were given a mandate of seven years. It was determined that that mandate for the head of the headquarters of the seat was not renewable and that there was therefore no evaluation.

The basic vision of those who endorsed the Octopus – it was, by the way, amplified here, room-wide, not so long ago – was the following. With regard to the head of the headquarters of the seat, a non-renewable mandate was opted for, as it was necessary to avoid the evaluation. The evaluation, at least according to the House-wide majority in Parliament, was in fact an interference of the executive power in the judiciary. Therefore, at that time, these principled options were chosen, in the relations between the executive and the judicial power. Because it was so important, it was anchored in the Constitution, well defined in Article 151.

Today, through the draft submitted to the House by the Deputy Prime Minister and Minister of Justice, that rule is fundamentally amended. Essential is the following. The term of office is limited to five years instead of seven years. The mandate shall be renewable, thereby providing for an evaluation also for the chiefs of corps of the seat. That is the new regulation, which is drawn up in the draft law that precedes.

Our group has a number of fundamental objections to this bill. I will limit myself to the absolute essence. A first objection is that the fundamental arrangement, which was the subject of a house-wide consensus in this Parliament, is amended in such a way that the impact of the executive power on the judiciary is significantly increased, while in the Octopus Agreement we had found a proper balance between the judiciary and the executive power. This was very important in the organization of a good judicial administration.

What is more important is our second objection. The regulation drawn up in the draft law is contrary to the Constitution and is therefore unconstitutional. I have heard Mr. Cortois say that he is not a specialist in the matter - he is much too modest in this - and that he chooses from the two theses for the thesis brought forward by the Minister of Justice in the Chamber.

Mr. Cortois, we must first look at what the State Council has said on this subject. The State Council, in my opinion, ⁇ takes a very neutral and objective position in this regard. I would like to draw your attention to this passage of the State Council opinion because the State Council is so explicit and so sharp with regard to the arrangement drawn up in the draft law.

The State Council says the following, and I quote: “The impossibility of evaluating the mandates of corps chiefs in the sitting magistracy is thus contained in Article 151 of the Constitution. Since the holders of a mandate of chiefs of corps in the sitting magistrature referred to in Article 151, 5° of the Constitution are not referred to in Article 151, 6° of the Constitution, they cannot be subject to the evaluation. A fortiori they cannot be subjected to an evaluation accompanied by recommendations that would further undermine their independence.”

The Council of State continues: "In addition, the King is not authorized by any constitutional provision to terminate the exercise of a mandate of chiefs of corps in the sitting magistrature in any way, and therefore not to be anticipated in any way."The Council of State concludes: "It follows that, in so far as the preliminary draft law aims to submit the chiefs of corps of the sitting magistrature to evaluation and to give the King the possibility to terminate the exercise of a mandate, it is not existable with the letter or with the spirit of Article 151 of the Constitution."

The State Council is very explicit: the arrangement is not existable, as it is expressed, with the letter, nor with the spirit of Article 151 of the Constitution. Article 151 of the Constitution does not allow this. Article 151 of the Constitution allows it only for a very restrictively listed category, but not for the chiefs of the corps of the seat of the magistrature. That was, by the way, perfectly the agreement that we had reached in the Octopus Agreement, and not only in the letter, but also in the spirit of the Constitution, which was the translation of the Octopus Agreement, as we approved it here in the Chamber Chamber wide.

Here, however, we face a fundamental problem, in particular that the regulation is not in accordance with Article 151 of the Constitution. Not only the State Council has said this, but also the High Council for Justice has confirmed this very explicitly following the Senate hearing, just like those who specialize in constitutional law and were consulted. I quote Professor De Corte: “The Minister gives an explanation of Article 151, which does not find any reflection in the text of the Constitution.” Professor De Corte cannot be assumed to take a party-political stance in this.

So, colleagues, if the majority is of the opinion that there should be an evaluation, then that requires that article 151 of the Constitution be amended. There is no other possibility. Therefore, I would like to make it very clear here at the floor that all those we have consulted on this subject, the State Council, the High Council, the professors concerned, have very explicitly said that this arrangement is against both the spirit and the letter of the Constitution. The House cannot afford to approve a provision that is contrary to the Constitution. This is essential to the mandate of Parliament. The first problem is that the regulation is unconstitutional.

The second problem is that the arrangement is not carried out by the stakeholders. During the hearing we heard the opinion of the Standing Assembly of the Corps Chiefs. We have found that the working group, led by the right hand of Mrs. Minister, Mr. Janssens, who has curved on this, has come to a very different conclusion. Also in this regard, we are facing a problem: it is planned to organize a system of evaluation of magistrates and chiefs of corps that is not carried out by those who themselves will be the subject of the evaluation.

Finally, if one assumes that it is necessary to come to an evaluation, then I think that one must at least ensure that the evaluation is constructive and motivating. In the regulation drawn up in the bill, nothing is less true than that.

I would like to refer for a moment to what the Chairman of the Court of Cassation, Mr. Verougstraete, said during the hearing in the Justice Committee of the Chamber of Representatives. Mr. Verougstraete says about the evaluation as it has been explained as follows, and I quote: "The very detailed way in which the evaluation should be done is very time-consuming. The arrangement is likely to be unsustainable and will lead to a formal and meaningless activity if magistrates want to continue to prioritize their primary task, in particular the right to speak.” The High Council of Justice had already argued in its observations on the draft that such a detailed assessment was completely unnecessary. Insofar as one would still say that there must be another evaluation and insofar as one puts the Constitution aside, in particular Article 151, one will here build a system of evaluation in which the Chairman of the Court of Cassation, of whom in any case it cannot be assumed that he holds a party-political position in this and who is a man of great loyalty, says that it is a very time-consuming, formal and meaningless activity that is completely superfluous.

It is for these reasons, Mr. Speaker, Mrs. Deputy Prime Minister, colleagues, that I would like to urge those in this House who are interested in a good relationship between the state powers to disagree with the evaluation of the mandates of the head of the headquarters of the headquarters of the headquarters, because all the bodies that we have consulted on this matter, all the bodies that can be found in the report of Mr. Courtois, have expressly stated that this arrangement is unconstitutional and does not comply with the spirit and letter of the Constitution. If you would like that, colleagues of the majority, then you only have one option, namely to amend Article 151 of the Constitution. It is impossible for the sake of a decent relationship between the state powers to introduce an assessment which those who know it and who must live with it say is purely formal, meaningless, time-consuming and completely superfluous.

I think it would really be a totally wrong policy choice to seat the magistrates with such an assessment. We must give the magistrates space and time to make judgment, this for the sake of a good administration of justice and a good service to the applicant. You have been warned, my colleagues. When you approve this bill, you will first approve an unconstitutional provision and secondly approve an evaluation that is meaningless, time-consuming and completely superfluous. There is no need to argue that this approval would of course be meaningless.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. Courtois perfectly translates the discussions in commission. Like the mr. Courtois, I have no claim in constitutional law, I do not pretend to master it better than others, I also do not have the experience of Mr. Courtois. Van Parys and does not control the past of these Octopus agreements.

In addition, I must confess to you that intuitively, I find that evaluating magistrates, whether they are heads of bodies or not, whether they are seated or not, is rather a good thing. I said this before in the committee. No one should be safe: it is healthy to be able to evaluate the work of all magistrates and make them accountable, whatever they are and whatever their position. But I also obey other principles, principles of law which I find fundamental when it comes to the Constitution.

Like the mr. Courtois, not being a constitutionalist myself, I tried to inform myself, to read, to see the hearings and to feed my reflection with the opinion of certain specialists. We talked about professors, but I also read the opinion of the Supreme Council of Justice and that of the State Council: they all go in the same direction. This only confirms my instinct and my position. When reading the text of the Constitution and this paragraph 6 which speaks of the evaluation and which clearly states for whom the evaluation is permitted, I think that if it was a positive injunction, that one had meant to say for whom it was necessary, if one had no need to enter it into the Constitution and that there was only to organize it, the fact of placing it in the Constitution and the fact of saying exactly to whom it applies demonstrates that for the heads of corps and the heads of corps sitting, there can and must be no evaluation. The Constitution cannot be clearer on this subject.

One can try to interpret it in the desired sense, one can try to make it say anything but give it an interpretation contrary to all convergent opinions...

Try to find the excerpt from the opinion of the Supreme Council of Justice on the subject.

This was discussed in the committee. I can go and look for it if you want.

Go to!

It was taken from the Senate hearings, Mrs. Minister. We passed through the committee.

It was on an individual basis... One member said that maybe well that... The Supreme Council of Justice has never ruled on the subject. and OK .

We went through the passage.

I say this simply for the historical truth!

For the historical truth, I say that this discussion was held in a committee, that the text of the hearings that took place in the Senate was read again.

But no, you have not read the text of the Supreme Council of Justice. He has not commented on the subject. You read the excerpt from an audition of a person from the CSJ.

On the State Council, do you agree?

of course !

I was afraid that, even on this subject, you would not agree!

Mr. Wathelet, I don’t like you taking it this way!

That you cite the Permanent Conference of Chiefs of Corps does not cause me any problem. I also agree with the State Council. But for the sake of truth, I don’t want one to quote an opinion from the Supreme Council of Justice when it doesn’t exist. It is a member of the Supreme Council of Justice who was audited individually who said that, ⁇ , a problem would arise. This is very different from an official opinion of the Supreme Council of Justice! That is all I mean.

As for the rest, you are right: there is a controversy in this matter.

Mr. Speaker, I think it is of course not comfortable for the Minister that everyone who has been consulted in some way has confirmed that the provision is unconstitutional. I would like to remind you of what the State Council said. Furthermore, during the hearings in the Senate – I refer to the Senate report – the representative of the High Council for Justice explicitly confirmed the State Council’s position. I would also like to point out that during the ⁇ busy hearing in the Chamber’s Justice Committee, Mr De Riemaecker expressly confirmed the problems raised by the State Council.

I also refer to the report of the Senate, where this was expressly cited. In that regard, Mrs. Minister, you have made that choice and you must take responsibility for it and not shift it to others. Everyone who was consulted, as well as all constitutional experts have explicitly said that it is not in accordance with Article 151 both in the letter and in the spirit of the law.

In addition, I would like to reaffirm here that following the Octopus Agreement it was very clear what choices were made. It was Mr. Landuyt himself who demanded that it be anchored in the Constitution, in particular in Article 151. There is no constitutional provision in the other Member States of the European Union that speaks about the evaluation of magistrates. So precisely, so clearly and so ready it had to be inscribed in the Constitution. This cannot be ignored.

One is of course with an official problem, namely that one here as Minister of Justice proposes a legislation that is unconstitutional. Of course, one tries to get out of it, but one bears responsibility for the things one does, and one should not put them on anyone else. The Supreme Council and the State Council and the professors and the actors and the Standing Assembly of Corps Chiefs all said it was unconstitutional, all.

Mr. Speaker, what Mr. Speaker said. Wathelet is very interesting. I say and I repeat.

( ... )

You were talking. He wanted to support you, he is somehow your collaborator in this regard. He had already spoken to the tribune.

I simply say that what is said is not true. There is controversy about constitutionality. There is no problem recognizing it. That the will of some is to hide behind a certain interpretation of the Constitution in order not to evaluate the heads of bodies, it is obvious! I heard Mr. Van Parys in commission; this came to say: "especially let them be quiet, above all do not evaluate them, above all do nothing and do not modernize!" This system works, not modernize it. First of all, let us not judge and do not shake the heads of bodies!

It is not in this way that I see the need to make our judicial system work better.

If the minister starts screaming, then there is a problem.

The minister says that the representative of the High Council for Justice spoke in his personal name, but the minister clearly does not know her dossier. I refer to Act 1707/4 of the Senate, which contains the opinion of the Supreme Council. I quote from there: “He – the Council – still considers that an evaluation is not desirable and points out that the State Council, supported in this by a certain legal doctrine, considers that the introduction by law of an evaluation for the corps commander is unconstitutional, in any case with regard to the corps commander of the seat.”

This is an opinion on behalf of the entire High Council for Justice. When the minister says that it is only one person of the Supreme Council, he does not know his own file.

You blame me for my approach to the debate. I did nothing but give you my point of view. Personally, I think that an assessment is positive and that everyone should be evaluated. I just try to analyze this text as objectively as possible, based on the elements in my possession, namely your position...

The [...]

The Constitution itself does not in any way represent your position, but when I say your position, it is of course that which is related to the project you submit and all other elements, namely the opinion of the State Council, the statements collected in the hearing that took place in the Supreme Council of Justice, the opinion of certain professors and the text of the Constitution. There is nothing to do, when I go to the commission – we will just go through it together – when I return...

The [...]

Can I continue my reasoning? When I go to committee, what do I do? I am aware of the text of the Constitution, as every member is supposed to do. And when I read that "In the manner determined by the law, the judges and holders of the functions referred to in §5, paragraph 4, and the officers of the public prosecution are subject to an assessment," it literally and expressly refers to §5 in paragraph 4, whereas in paragraph 3, it is the head of corps. The Constituent Assembly would have wanted to exclude from an assessment the heads of bodies whom they could not have better written! When I read this text for the first time and when I re-read it, I am strengthened in my point of view, especially since I am obviously not the only one who thinks it, regardless of the opposition thesis, which would be an easy argument. You cannot blame a majority person for thinking as the majority thinks. On the other hand, one accuses an opposition person of thinking as the opposition thinks!

The [...]

You have nevertheless blamed me for approaching this matter in this way, while I try to be as constructive as possible and to analyze these texts in the most objective way. I find it so much easier to say that I am rather in favour of an assessment. It is not because one is in favor of an assessment that one can, through a law, specify something other than what is stipulated in the Constitution. You will never let me say that! There is a Constitution and it is necessary to change it. We can do it! I have no problem in this regard! I would, of course, vote in favour of a possible amendment to the Constitution. But there are a minimum of rules. I know, it’s not what obsesses you most: rules, compliance with procedures, the opinion of the State Council, the Court of Auditors, the Constitution. Personally, I still attach a minimum of importance to these rules of law that I find fundamental.

I come to the second point that I wanted to mention. From the moment when one decides to conduct an evaluation in a constitutional manner – I put aside the fundamental principle that one cannot go against the text of the Constitution – I would have wanted to go to the end of the logic. If one evaluates; if someone is in a good position, that he performs his function optimally, that he works well, that he is competent, that he has a good evaluation, let us leave him in his position. This is what was done for the heads of bodies at the level of the police. When an individual is good, that he is the subject of a positive evaluation, that he is the ideal person to fill the position of head of body, let us leave him in his place. Why deprive yourself of all those people who work well, who have had positive reviews, who have been the best? Why are they not left in their positions? I confess that I have a small problem with the idea of leaving someone in a position without having proceeded with its evaluation, without knowing whether it is suitable, if it works well, whether in legal matters, human resource management or financial management. But – I repeat it – if, after assessment, we come to the conclusion that the people concerned are working well, let us leave them in their positions. It would seem more appropriate to go to the end of the logic.

I will not return to the evaluation as such. The Supreme Council has given its opinion. It is true that the presence of the executive within this assessment cell raised a number of questions. This has been discussed in the committee.

However, I would like to return to an argument that has been the subject of many discussions in the committee. I mean talking about the intermediate situation of people who were appointed between April 2000 and the new law. It seems to me that these people are subject to a truly discriminatory treatment. I explain myself: in April 2000, we are fundamentally changing the system. It is about mandates. For body heads, these are mandates without evaluation at the end of the term. They cannot be renamed. From April 2000, corps heads were treated differently. This could be justified. Why Why ? Because we had decided not to evaluate them, doing so, they had to have a fixed term term of seven years. There is a logic here. The problem here is that the system is changed again. Indeed, the argument, which had been given to corps heads that their seven-year term of office would not be renewable because they could not be evaluated, falls. Indeed, today, rather than having a fixed seven-year term, the term of office covers twice five years or, if applicable, five years with the possibility of renewing it for five years.

The argument that was used in 2000 to prevent these people from being reinstated to their office falls today. The justification of the differentiated treatment from April 2000 falls today too!

That is why, Madame the Minister, the situation of all those people who have been appointed since April 2000 is truly discriminatory. The justification that was correct in April 2000 is no longer today. Why Why ? They will have a seven-year term of office and this term cannot be renewed. And we push the vice to the end because we will evaluate those who will end their mandate after 31 August 2008, without yet being able to renew their mandate. Therefore, the justification given to them for not renewing their mandate from April 2000 comes from 31 August 2008. However, mandates cannot be renewed. I think the situation is really discriminatory and that the Arbitration Court, as well as the Council of State, could deal with it. I hardly dare to mention it, but the State Council says it too.

That is why I had submitted an amendment which seemed to me quite proportionate, which would have allowed the persons who will be evaluated after these seven years, and for whom the system will be changed, to be reinstated in their office. The amendment also proposed to align us with the current ten years (seven plus three). This proposal seemed to me really reasonable, correct and allowed those persons who are in a transitional situation between April 2000 and the date of entry into force of the law not to suffer discrimination. In fact, it must be possible to effectively justify the difference of treatment imposed on these persons.

First of all, I have a real problem with the Constitution. I think this project goes against the spirit, the text and the interpretation of the Constitution.

Secondly, I regret, given that you have not respected the Constitution, that you have not gone to the end of your logic and that people who receive a good assessment cannot be left in their place.

Third, I think there is, within this bill, a discrimination against persons who were appointed or who will be appointed between April 2000 and the date of entry into force of the new law.

For all these reasons, we will not be able to vote on this text.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. I can fully contribute to their analysis.

In fact, the evaluation of the chiefs of corps by a new body, in which the executive power is also represented, is completely unconstitutional.

The assessment of ordinary magistrates was admitted in the Constitution several years ago as a novum, but at the same time also as a limited exception. The fact that the evaluation was not included in the Constitution, neither for the ordinary chiefs of corps nor for the magistrates of the Court of Cassation, was not a negligence or forgetfulness, but a conscious choice of the constituent, precisely in order to continue to ensure the independence of the judiciary.

The fact that the evaluation is introduced today, completely contrary to the Constitution, is directly contrary to the principle of the separation of powers. From now on, the highest magistrates of our country will have to live with a Big Brother at the Ministry of Justice, who can follow and let their actions and have a decisive voice in their further functioning.

The bill demonstrates a fundamental distrust, calculated from the Minister of Justice, in the highest judges. Today she puts her grip on the top of the magistrature. More than ever, in the future, the Minister of Justice will be able to let the magistrates dance to her pipe.

The case shows once again how omnipotent the current Minister of Justice is. Its draft is against the Constitution and against the basic principles of our democracy. Its draft receives devastating criticism from the State Council. The Corps Chiefs rejected the design with emphasis. The Chairman of the Court of Cassation and the Attorney General at the Court of Justice – in Parliament – broke the draft to the ground. The draft is shot down by the Supreme Council of Justice and the legal scholars do the same.

I quote Professor De Corte, who wrote at the end of his memorable piece in The Juristenkrant of May 24, 2006: “Such a proposal tires every imagination and raises serious questions about whether who is responsible is in the right place. The Constituent had the wisdom to withdraw any control over magistrates from the executive power. He has largely entrusted this constitutional protection to the legislator. One may wonder whether the path chosen in this bill is not the ultimate revenge of the executive power.”

Such a quote can count.

In short, colleagues, anyone who has exercised advisory power on the draft confirms that the draft is unconstitutional and gives a dangerously excessive power to the executive.

The minister himself can cry out loud, but he has not yet been able to make a single quote, not even a quote from a professor, which claims the opposite, not even a quote from professor Uyttendaele.

Nevertheless, this Minister of Justice succeeds in bringing her draft ne varietur through Parliament. Nevertheless, this minister finds the necessary disciples who want to follow her in her extremism. We must ask ourselves in the long run who is listening to Onkelinx. Which herb has been washed against the fanaticism of Onkelinx? Why is it that everyone weighs for that dangerous woman, for that femme dangereuse, or should we say femme fatale?

Again, we must note that there are hardly any critical minds around among the majority parties. We see only docile follow-up, yesterday in the Committee for Justice, where in a few hours time more than a hundred articles were hunted at a record pace by the committee, and today with the bill that puts the independence of the magistrates, especially from the top of the magistrates, completely on the slope.

We can only hope that in the foreseeable future the voters will put an end to this lamentable political crumbling. We especially hope that there will be magistrates who will show the courage to challenge the unconstitutional law before the Arbitration Court. We wish them all success in any case.

Mr. Speaker, Mrs. Deputy Prime Minister, colleagues, I will try not to make it too long since there has been much said, but I would still like to return to the essence of the debate.

For me, the central question in this file is whether we choose a 21st century justice or a 20th century justice, otherwise a 19th century justice. Of course, it is the task of the opposition to lead the opposition. It is a duty, without a doubt. Regardless of their arguments such as the opinions of the State Council and the like, I would also like the opposition members to know what they want, where they want to go with Justice. For me, this discussion is actually much more than just one article as such.

This is a fundamental discussion that we also see in the Themis project. What kind of justice policy do we want? Do we want a policy in which the Minister of Justice, the Government and the Parliament, are the notaries of what the High Council for Justice, the Orders and the magistrates prescribe to us? And then we need to act on that and preferably put a blank cheque next to it. Or do we choose a different course, where the legal seeker is our primary focus? That person who seeks justice wants a functioning judicial apparatus, which, preferably in the short term, comes to conclusions, which comes to a just judgment, and which comes into contact with him in a human, accessible and understandable way.

In all companies, in all government agencies, in all municipal governments, all officials, all staff members from the highest to the lowest rank, are evaluated and it is seen as an expression of good governance, good personnel management. Why, then, within the magistrateship, would a certain group – I would even dare to dare from a certain caste – escape an evaluation process? Why should these people not be held accountable? It is too easy to assume that an evaluation would be a negative tool for sanctioning people. No, an evaluation can also be a positive tool to guide people in their function, in their functioning, to encourage them to do better and this can have a positive impact, both for the evaluated and for the evaluating.

Mr Courtois has also stated that, in addition to their judicial duties, chiefs of corps also have important powers in the fields of personnel policy, financial management and capacity management. Apparently, many magistrates still find it ⁇ difficult to prioritize the handling of files and also to consider how they can use their ever-limited resources to properly serve the applicant.

I see that there is a problem with the fact that the higher magistrates are evaluated. It reminds me a little about my student period. Hugo Vandenberghe, who undoubtedly knows Mr Van Parys well, will remember that. During the period when I was a student, experiments were conducted with students evaluating professors. At that time, the professors were absolutely against it. Imagine, a stupid student who would evaluate a professor! One would probably only positively evaluate the professors who gave many points and imposed little work. Practice has shown that it is very different.

In practice, it has been shown that other people, even lower skilled, are best able to evaluate in a good and sensible way. If I hear the argument here that the magistrates should only be evaluated by higher rankers, in what society do we live? Who should then assess the first chairman of the Court of Cassation or the Attorney General of the Court of Cassation? It depends on whether they are believers or free-minded: God or no one? I do not know. This is at least a practice where I have certain questions.

I also hear that an evaluation would be of no use, since the term of these people cannot be extended. I think this is not correct. Those persons can also seek another mandate after that mandate or they can receive special assignments from the Minister of Justice. Therefore, I think that evaluation, also “on the job”, is ⁇ important.

We also heard during the discussions that one is apparently disturbed by the presence of a specialist in human resource policy, because this would be contrary to the separation of powers. This would undermine the independence of the judiciary. I have the impression that the independence of the judiciary has become a passe-partout in the last ten years to stop many things. It reminds me a bit of the renowned therapeutic freedom of doctors. Whenever one wanted to take certain measures in healthcare, including budgetary, to modernise healthcare policy, one always came with the therapeutic freedom to reject the measures.

A human resource policy specialist is apparently regarded as an envoy or a vassal of the Minister of Justice. This testifies to an intention process in which I cannot find myself. It also shows a lack of self-confidence among some in the opposition, as they apparently assume that this Minister of Justice and this majority will remain the same for the next few years.

I look forward to what they may say about this in the future.

For me, therefore, it is a fundamental discussion, namely, what kind of justice we want. Where do we want to go with justice policy? For whom do we carry out a justice policy? Do we pursue a justice policy for the actors of justice or do we pursue a justice policy for the legal seekers? For me, the legal seeker is the most important thing.

Colleagues, I would like to ask you to step a little away from a scary, yet some conservative view of justice. Society is not silent. Justice has not been silent, not even since 1998.

Mr. Laeremans, I may have been most disturbed by your reasoning. That is clear. I notice that you in the Justice Committee have begun to resemble more and more in the shadow of Mr. Van Parys in recent months. I don’t know who should bother it the most. I notice that.

I read an article from The Standard of 16 November 2004. I read a statement by Mr. Annemans at a congress of the Flemish Interest: "The names of all the legal protagonists from that trial are forever written in the memory of this lawyer. They are warned. We will never forget that, until the end of our days."So I find it strange that the same lawyers are apparently now being empowered by you in an intimate embrace, bien étonnés de se retrouver ensemble.

Ladies and gentlemen, I will decide here. For me, the central question in the file is whether we want a modern justice of the 21st century or whether we want to continue to hang with justice in the past.

by Mr. Borginon is the last registered speaker. We will then be able to pass on to the responses of the Minister.

Mr. Speaker, Mrs. Minister, colleagues, I wanted to say a few things first on my bench, but since my electronics just burned, I do not dare to do so and I still get to the speaker’s floor.

I would like to highlight two other elements.

I have already said the first thing in the committee, but I would like to reiterate my position, especially with regard to Mr Wathelet’s argument regarding the unlawful discrimination that would arise between different persons, depending on the time when they were appointed. Surfacingly, it could be assumed that there is a certain inequality of treatment. But I think, if we penetrate Mr Wathelet’s reasoning, that he inevitably says that Parliament can never change a law again, because every time Parliament changes a law and therefore has to regulate existing situations a little differently, Parliament creates an unequal treatment that is discriminatory. I am, therefore, a little disturbed by Mr. Wathelet’s explanation. I think, if we penetrate this reasoning, we will undermine some of the basic pillars of democracy. Parliament, the legislature, has the right to change the law. If that means that for some people the situation changes, then that is not necessarily a discrimination, even if there is a different treatment here and there than in the past or in comparison with some people who have been in a certain position for a much longer time.

Mr. Borginon, I did not say that Parliament cannot decide to treat people differently. In April 2000, when Parliament decided to treat corps heads differently by giving them a mandate with a fixed term, it justified it. Indeed, invoking the transition to the system of mandates and the inability to evaluate the heads of corps, a fixed mandate was needed.

Today, I am embarrassed because this assessment is imposed on them and, at the same time, they cannot be renewed in their function. And this system applies only to those who were appointed between April 2000 and the entry into force of the new law. My proposal is therefore not very far from what exists today! I propose that those who were appointed between April 2000 and the end of 2006 may have a seven-year term, undergo an evaluation and be renewed for at least three years. This approaches the new system, namely five years plus five years.

I believe that changing the treatment of those in this particular situation is not proportionate. Indeed, they are now imposed an assessment but they are not allowed to collect the profits and to be renewed as is permitted to those who do five years plus five years. This differential treatment is not justified.

Mr. Speaker, I think the freedom of the legislator to change things is greater than that. If one introduces a new system that implies a number of consequences, one can perfectly – as in the current texts – distinguish it. We differ in this opinion. So much is clear. I only want to emphasize that if one penetrates your reasoning, one very quickly ends up in a system where the space for the legislator to interfere with existing rights and to change things in society becomes very small.

A second element to which I would like to return is the whole debate about the unconstitutional or unconstitutional nature of the text that is now present. Indeed, a superficial reading of Article 151 may raise the question of why the corps commanders are not included in the list of mandates for which an evaluation is allowed. Is this a reason to argue that therefore this law cannot pass through the beugle? The history of Article 151 shows, in my opinion, the opposite. The text submitted at the time as a proposal for the revision of Article 151 makes it very clear that it must be read together with the bill that would regulate the rest of the matters.

What has happened? There have been political negotiations on the content of the new system. It has been concluded that an evaluation must be possible at a certain point. There was some pressure, especially from the judiciary. She believed that an evaluation was completely impossible and that evaluations would in any case be contrary to the separation of powers. In order to prevent one from falling into all sorts of procedural layers, the constituent legislator at that time was so wise to make it clear in the Constitution that evaluation is indeed possible in the cases that were included in the ordinary bill for which an evaluation was provided. If the legislator at that time had involved the chiefs of the corps in the evaluation, Article 151 of the Constitution would have long since stipulated that evaluation for these people would be possible. Does the Constitution stipulate that evaluation is prohibited for all those who are not listed nominatively in the text? I do not think. This is not the history of the text as it came into being.

If it is now concluded that, under certain circumstances and with a view to an extension – which in the past was not possible – for corps commanders an evaluation can be undertaken – although with a whole set of safeguards to ensure that it becomes a decent evaluation – then this is not contrary to the Constitution. Something different is that at a certain moment for the proper reading of the text, we will also not have to adjust the article of the Constitution to make any misunderstanding about this impossible.

Mr. Borginon, we must remember the “ratio legis” of the imposition of the evaluation for some. From the moment when the mandate was renewable, it was logical to impose an assessment to just protect the independence of power of the executive. Obviously it is not forbidden to do the evaluation for others but, if you make renewable mandates, it is obviously necessary to protect independence, that the decision on the renewable character depends on an evaluation. From the moment when corps heads have renewable mandates, it makes sense that we can use this instrument that is evaluation. Neither more nor less! We must also take into account the spirit in which this is written in the Constitution.

I will conclude by referring to the text of the proposal as it was submitted at the time and the explanatory note contained therein. It does not say that one wishes to limit the evaluation to these two categories and therefore it is written in the Constitution. No, one simply writes that one wants to introduce an evaluation system and then one actually proceeds quite sec on the fact that an evaluation system is introduced. It does not mean at all that this text is intended to prevent it from making it impossible for other categories, which are not mentioned today, to carry out an evaluation. This is not in the text as it was submitted at the time.

Colleague Borginon, you are opposing yourself. First, you say that there was a lot of opposition to the possible idea of an evaluation. There was a whole discussion on this subject and eventually a constitutional article was introduced which very clearly limits it to those categories. The rest is not provided. You are turning things around.

[...] the contradiction. There was then criticism of the principle itself, namely that there would be a form of evaluation possible for magistrates at all. This debate was resolved by Article 151 of the Constitution. That is why Article 151 of the Constitution generally mentions the evaluations. In this sense, this principle is acquired. At that time, the Constituent had no reason to assume that something should be arranged for the simple reason that in the texts, which were discussed at the same time, there was no mention at all of the evaluation of corps chiefs. If the Constituent had known that at that time, he would ⁇ have modified the text differently.

In short, I honestly think that it is indeed a balanced text that is constitutionally in order. It may not be unreasonable to adjust the text in the course of the coming years to make any doubt about it impossible in superficial reading.

A piece of paper.

Mr. Speaker, I would like to conclude the recent intervention by quoting the text on which I am based to say that the Supreme Council agrees with what the State Council says. It is the opinion of 5 July 2006: "(The Supreme Council) remains of the opinion that an assessment is not desirable and signals that the State Council is of the opinion, supported by a certain doctrine, that the introduction by law of an assessment for corps heads is unconstitutional, in any case for corps heads of the headquarters."

The [...]

The Supreme Council of Justice (...).

Basically, the debate is “exhausted”, but you asked me the word, Mr. Annemans, for a personal fact.

Personal Fact