Proposition 51K2829

Projet de loi sur la formation judiciaire et portant création de l'Institut de formation judiciaire.

General information ¶

Submitted by

The Senate

Submission date

Nov. 7, 2006

Official page

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Status

Adopted

Requirement

Simple

Subjects

vocational training magistrate judicial power

Voting ¶

Voted to adopt

Vooruit PS | SP Open Vld MR

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Discussion ¶

Jan. 25, 2007 | Plenary session (Chamber of representatives)

Full source

The following speakers were included in the general discussion: Mr Van Parys, Mr Laeremans and Mrs Marghem. I will determine the order later. First, Mr Marinower has the word for the report.

Mr. Speaker, colleagues, I have the honour to report to you on the bill and the bill that were discussed during the meeting of the Justice Committee on 16 and 19 January 2007.

Deputy Prime Minister and Minister of Justice Ms. Onkelinx first gave an introductory presentation. In this context, it highlighted a number of matters, including the fact that the bill is the result of a long-term effort undertaken since the beginning of the governing period in cooperation with various judicial and institutional actors competent in this matter, with the intention of the government to give a strong impetus to a more professional judicial training of high quality.

According to the Minister, the draft creates certain rights and, in specific cases, additional obligations in the field of training, with a clear definition of the concept of judicial training. These include initial training, continuous training and career guidance. The Government also decided to establish the Institute for Judicial Training, which is independent of the executive and judicial authorities, in which the Government also decided to devote a significant part of its budget to training, in which effort, as the Minister has cited, amounts to 1.9% of the wage mass and also provided that the budgetary collection movement will take place in various stages.

The Minister stressed that the Institute will be competent for both the magistrates and the judicial trainees as well as for the judicial staff, where, according to the Minister, the competence for the whole staff of the judicial system would provide multiple advantages, including the efficient use of the resources allocated and the training policy for these two groups could be coordinated and coordinated.

The Minister stressed that the Institute is federal, now that training is one of the constituent elements of the statute, and its organization also belongs to the federal level, now that the statute of the actors of the judicial system formed a federal matter. The Minister emphasized that the Government wishes to maintain the independence of the Institute as much as possible.

On the issue of federal competence, the Minister stressed that there was a lot of discussion in the Senate and summarized its reasoning as follows: professional training is a full element of the statute of the magistrate or of a member of the staff of the judiciary and since it is a federal statute, the training is equally. It referred to an interpellation addressed to the Flemish Minister of Education both in 2005 and on 20 December 2006 in which it referred to the response of the Flemish Minister of Education, which explicitly acknowledged that the training of magistrates was a federal competence and in which the Flemish Minister of Education acknowledged that the federal draft had a different purpose than education.

The system as it exists today, the minister thought was not really successful and brought with it many problems in daily practice.

The Minister stressed that for this reason the Government had decided to charge the Institute with the preparation of the training programmes and their implementation. She further emphasized that those programmes would have to be consistent with the guidelines provided by the High Council for Justice for magistrates and judicial trainees.

The Minister further emphasized that the bill confirms another essential decision, in particular an increase in credits in favour of vocational training. She stressed that the budget increase was justified for several reasons. The professionalization of the training is encouraged. The department takes on new obligations regarding training. The Minister stated that he was ⁇ satisfied with this and said that the necessary funds for this were released.

Following a description of the bodies that would include that institute, and for which I refer here to the report, she also thought it necessary to remind that in the Senate discussion numerous amendments were discussed and eventually adopted. She emphasized that most of the comments from the Senate Law Assessment Service were integrated, making the text sensitively improved.

She stressed that the approval of her design by the Chamber will be an important moment as it has been waiting for a long time—some are talking about 15 years—. She believed that when the institute will be installed one will only really be able to talk about a training policy to be implemented and an action plan to be defined and all this realized by competent persons. This will require the recruitment of specialists, and one should not be afraid to open the job profiles, which are drawn up in cooperation with the High Council for Justice, to certain specialisations that currently lack in the judicial system.

She decided by saying that, in her opinion, professional training will undoubtedly represent an essential carrier of that modernity. The current lack of training should be addressed as soon as possible.

Furthermore, colleague Wathelet provided further explanations on the bill he submitted to amend the Judicial Code in order to transfer the competence for the training of magistrates to the High Council for Justice. Mr. Wathelet said that the bill pursues the same goal as the bill, but proposes a different solution. He said that the draft law goes far beyond the proposal he submitted.

During the general discussion, Mr Courtois stated that the draft law meets the objective of the draft law no. 849 and therefore its approval can be withdrawn.

Mr Wathelet stressed that, in his opinion, the prerogatives of the High Council for Justice within the newly established institution are limited.

Afterwards, the speech was delivered by colleague Van Parys. Mr. Van Parys, I will shorten your speech a little. I know you will be speaking soon. To those who have followed the debates in the committee, it is unnecessary to remind you that you believe that the problem requires a thorough debate.

Mr Van Parys raised a number of fundamental objections to the draft law. This requires a response from the Minister. He stressed that the institute will have a considerable budget, 1.9% of the annual salary mass of the FOD Justice or more than 10.3 million euros. It will be able to provide ongoing training for lawyers, notaries and court enforcers. The funds allocated to this institute exceed, according to colleague Van Parys, the joint budget of all Belgian law faculties. He wondered if this was an efficient way to use public funds.

Collega Van Parys also took the floor regarding the position of director of the institute. It must be able to demonstrate knowledge of the second national steel only six months after its appointment. Collega Van Parys thus considered that this provision gives the impression that a candidate for this position is already in mind. According to him, it must be obvious that at the time of the appointment the person already meets all the conditions.

Furthermore, colleague Van Parys highlighted a number of observations concerning provisions which, in his opinion, were in conflict with, inter alia, Article 174, paragraph 1 of the Constitution, which provides for the principle of the one-year budget. He referred to Articles 127 and 151 of the Constitution.

Furthermore, colleague Van Parys emphasized the attention of the commissioners on unconstitutional practices that would have been applied in the matter. The training and training of the judicial staff is entrusted to the Institute. According to him, however, this is clearly a Community competence. It would therefore be contrary to Articles 127 and 151 of the Constitution, since only the formation of magistrates has been entrusted to the High Council for Justice.

Collega Van Parys also wanted to know what formative powers would still remain concrete to the High Council with the adoption of this bill. He summed up this by asking what the future would be for that High Council.

He stressed that, in his opinion, the role of the Communities and universities in the draft law is virtually nonexistent. It would testify to a forward-looking vision of entrusting the initial and continuous training of the magistrates to the second university centers. This would, in his opinion, give the Communities the unique opportunity to put their own accents in it. He concluded that point by saying that the bill leaves an excellent opportunity and will result in a huge fragmentation of resources.

Furthermore, colleague Van Parys strongly regretted that the task would be entrusted to the outdated structure of a parastatale B. He asked how the independence of the judiciary in that institute is guaranteed and wanted to know what the position of the magistrates was about the method followed. He also had questions about the role of the Parliament. In fact, the draft law provides that the institute must submit an annual report to Parliament. Colleague Van Parys wished to get an overview of all the reports that should normally be discussed in the committee. He emphasized that, according to him, the moments in which the documents were discussed are extremely limited.

Collega Van Parys concluded that the bill raises fundamental questions of a constitutional nature, as well as questions about good management and the involvement of those who have to work with it.

At the comments of the various colleagues, the Minister responded that the Constitution on training has not granted exclusive competence to the High Council for Justice and that in the current state of affairs, although the training programs come from the High Council, but their implementation is in the hands of the FOD Justice.

Regarding the conformity of the draft law with the constitutional provisions, the Minister referred to its introductory presentation and the discussion thereof in the Senate. She replied to colleague Van Parys, among other things, that the institute is not established as a competitor to the universities. In connection with his comments on the position of the director, the minister replied that he or she does not necessarily have to be a lawyer, but that he or she may, in her opinion, be perfectly bilingual, without that ab initio having to be confirmed by a certificate of bilinguality. She referred to the Council of State, which did not object to this procedure.

In connection with the role of the High Council for Justice, the Minister also noted that the High Council for Justice has drawn up guidelines for the policy on the training of magistrates and judicial trainees. These directives will, of course, be implemented. According to the Minister, the bill will strengthen the essential task of the High Council for Justice.

Finally, the Minister noted that the bill was adopted after trade union consultation. In the replies, colleague Van Parys noted that the syndical consultation does not concern the magistrates, since they are not syndicated. In the general discussion, colleague Van Parys concluded that the opinion of the high council was expressly negative. He emphasized that he strongly opposes the adoption of the draft law.

In the article-based discussion, among others colleagues Van Parys, Laeremans, Monfils, Taelman and Borginon spoke. Most articles were adopted with nine votes against three, some against two and one abstinence.

I would like to thank the rapporteur. I declare the general discussion open. I have currently registered three colleagues: Mr Van Parys, Mrs Marghem and Mr Laeremans. I will keep that order. I start with Mr. Van Parys, then a French-speaking and then again a Dutch-speaking colleague. Without a problem?

Mr Van Parys, you have the word in the first place, on behalf of the opposition and on behalf of yourself, of course.

Mr. Speaker, Mrs. Deputy Prime Minister, Mr. Secretary of State, colleagues, in this discussion I would like to speak briefly and limit myself to the essential, to tell you that this bill is actually a bill of the old political culture. In addition, the bill is manifestly contrary to the Constitution. It should therefore be almost obvious, colleagues, that the Parliament should never approve this draft law in this way and that therefore it should not be approved here.

This bill is unconstitutional because Article 127 of the Constitution confers competence in the field of education to the Communities. One exception is provided for in Article 151 of the Constitution, which provides that the formation of judges and prosecutors is the competence of the High Council for Justice. What are they doing now? This competence for the formation of judges and public prosecution officials is not to be entrusted to the High Council for Justice, as provided for in Article 151 of the Constitution, but rather to a newly established parestate B, a newly established judicial training institute. In this way, this bill is in flagrant violation of Article 151 of the Constitution, which entrusts this power exclusively to the High Council for Justice.

There are still provisions that are absolutely contrary to our Constitution. You should know that this Institute for Judicial Training, Mr. Speaker, is not only competent for the formation of magistrates, but also competent for the formation of the judicial staff, such as judicial trainees, staff of the office, prosecutors and all actors of the judicial order. This is in any case a violation of Article 127 of the Constitution, since Article 127 of the Constitution explicitly provides for the competence of the Communities in teaching. In this case, the exception for the High Council for Justice provided for in Article 151 does not apply, as it does not concern magistrates and public prosecutors. Article 127 of the Constitution applies. This means that it regulates a competence that is a competence of the Communities.

You will say that this is a formal position. It is also. We must, however, in the first instance in this House of Representatives, test the various initiatives, laws and draft laws to the Constitution. I think it is very clear from this that this bill does not comply with this.

It is much more than that. There are very important substantive objections that are the concretization of the fact that the Constitution had actually meant this differently. A first objection is the fact that it outlines the powers of the High Council for Justice in the field of training and training, including those of magistrates.

This is in absolute contradiction with the written opinion given by the High Council for Justice and explained orally following the Senate discussion. It was very explicitly stated that if a "magistrates' school" was to be established, it should be established in and with the High Council for Justice, which was completely overlooked and therefore not applied.

This is an important determination. I have the impression that the Supreme Council for Justice is being gradually dismantled in this way. I at least note that the key figures at the High Council for Justice have understood that there is still little future for this institution. We see that two of the four members of the Office of the High Council for Justice leave the sinking ship and look for other horizons, including looking for responsibilities in the training institute. This seems to me ⁇ strange and even deontologically very questionable.

The powers of the High Council for Justice shall be disguised and no role shall be assigned to the Communities. I want to emphasize this. The CD&V Group has always advocated that the competence for the training and training of magistrates and judicial staff should in any case be a competence of the Communities, irrespective of the fact that it is so stipulated by the Constitution.

This is primarily a competence of the Communities. It was therefore that, following the Octopus Consultation and the Octopus Agreement, we had explicitly agreed with the other partners that this training institute, this school of magistrates as it was called at that time, would be an interuniversity center in which the universities would play an important role. You understand that in the training of magistrates, among other things, universities should play a very important role.

If, at some point, the High Council of Justice was granted the competence for the training and training of magistrates under Article 151, it was intended to conclude an agreement of cooperation between that High Council and the Communities in order to establish that interuniversity centre and thus to make available all the know-how available at the universities and to serve a good training and training of the magistrates and judicial staff, which is so crucial for the quality of the administration of justice and for a good administration of justice for the benefit of the citizen seeking the right and of the person seeking a quick recovery.

It is nevertheless unthinkable that such a federal institution will be established at a time when everyone – yesterday even the prime minister, apparently – says that there must be an absolute and urgent state reform, in which homogeneous packages of powers must be established. At this moment, just before the important discussions related to the state reform should begin, a federal institution, a parastatal B, will be established, with the competence, training and training of the magistrates and the judicial staff. This is almost provocative! Only a few months before the important discussions on the state reform, before what should be addressed at least elementarly in those discussions, in particular the question of how to streamline some of the powers of the Communities and the federal government, only a few months before that important moment, this Parliament would very soon establish a federal parastatale B and thus even replace the Communities. Thus, the educational and training competence in that field would be situated in three areas, namely in that training institute for the magistracy or the judicial system, at the level of the High Council and at the level of the administration of the judiciary. This is truly unimaginable in the light of the ideas that everyone in this hemisphere has about that matter and the future powers in that matter.

I really cannot imagine that one can, with knowledge of the facts, approve this draft if one is even somewhat convinced that, within the framework of a future state reform, at least this matter should be regionalised, or that the State would at least be organized in such a way that that matter would belong to the homogeneous competence of the Communities. We now move on to the establishment of that institute, which will also be funded with significant public funds, in particular an annual amount of €10 million, which is more than all the budgets combined of all the law faculties in this country.

Imagine that somewhat! As soon as one becomes aware, on the ground, in the universities, in the law faculties, of that finding, the protest will start to sound!

It is in any case the point of view of the CD&V faction that this matter must be deferred. It is blasphemous and provocative that at this moment – the day after the prime minister in the royal palace said that we should be able to proceed to that state reform and that homogeneous powers packages should be realized – we are going to establish this parastable B. It is not only for those reasons that we say that, Mrs. Vice-Prime Minister, colleagues, but also because we today – suggest you, colleagues – are going to set up another old-fashioned parastatale B.

I wonder – Mr. Speaker, you have a good memory – how long has it been since this Parliament established a parestate B. At this moment, on 25 January 2007, we are going to do this here: establish a par-state B, a federal par-state B on a matter within the competence of the Communities, which have the know-how on universities and the various training centres. An old-fashioned parastatale B, colleagues! With everything on and on! So what it means: firm, politically embedded, with appointments that will happen in the politically suspected period. Colleagues, we are a few months before the elections, so this moment is not neutral at all. If one then looks at the composition of that famous parastatale B, there are two general directors – the general director of the judiciary and the general director of the training institute of the federal government – and the other ingredients, colleagues, are two government commissioners – two government commissioners, Mr. Borginon, who will receive a decent remuneration there – and then another direction for which the diploma requirements have been specially low profile. The only requirement for diplomas that the Director and the Deputy Directors will have to have is a university degree. Therefore, it will not even be necessary to have a diploma in law. A university degree, whatever, will be sufficient.

In addition, colleagues, the management of that institute will also be paid very well. The Director and the Deputy Directors are given the bet of a first Attorney General at the Court of Cassation and of a Attorney General. I assume that not everyone in this hemisphere is aware of what that concrete means, but you can read very clearly in the report to what fees that can give rise.

In short, it will be a firmly politically embedded parastatale B that will be approved by the majority of this Parliament, and that for such an important matter, the training and formation of the magistrates and of the judicial staff.

Furthermore, Mr. Speaker, colleagues, it is a completely unitary federal institution. That will probably give you a pleasure. The High Council for Justice consisted of a Dutch-speaking and a French-speaking investigation and advisory committee. In this federal parastatale B, this is not even the case. It is an absolute unitary institution, such as has not been created in recent years. So, colleagues, if you approve of this, you must be well aware of what you are doing here in a ⁇ important matter.

Then there is also the time when this will be submitted to Parliament. What will the government do about this judicial training institute? The only thing this government will do is the appointments. It will be up to the next government to provide the financial resources for the organization and all that is necessary for it.

That is why this bill is so rejected. At a suspicious moment, in a period when one must be especially careful in political decision-making, one will make important political appointments. We all know, or at least those who are familiar with this matter, that the names already circulate and are actually already known. This is the oldest political culture.

Under these circumstances, our group will not approve this bill. We explicitly ask you not to do this either. There is no objective reason, no added value to approve this orbole design. If you would do this – I can’t imagine you would do it if you have looked at it thoroughly – then the destruction of the draft by the Arbitration Court is predictable because of the flagrant violations of Articles 151 and 127 of the Constitution.

I can tell you that if this bill is approved, it will be so, insofar as and if CD&V would participate in the post-election policy, the first decision will be to abolish this old-fashioned parastatale B.

As far as I am concerned in the general discussion.

Mr. Van Parys, you surprised me by the briefness of your presentation. The word is to Mrs. Marghem.

Providing justice is an indispensable task and function in a rule of law. Who would doubt? International conventions and our Constitution guarantee everyone the right to defend their own subjective rights in court.

This guarantee implies that the magistrates called to hear disputes can hear them with all the competence and knowledge desired in order to make a verdict in accordance with law and fairness. The professionalization of judges is therefore necessary. The public service of justice is not carried out solely by magistrates: it is the whole judiciary and the professions that make up it that contribute to its quality. I think here of the staff of the greves and prosecutor's secretaries, the referendaries and other prosecutor's lawyers who all, already in the exercise of their daily tasks, strive to give their work the contours of a true profession.

It is this set of judicial actors who contribute to bringing justice closer to the citizen and who also deserve access to information that will help them to exercise this profession even better. We can therefore only welcome the recognition of a genuine right to training for all these judicial actors and the establishment of a judicial training institute.

We had already requested the establishment of such a body in a bill and, for our group, this measure could only be established at the federal level. Indeed, as the Supreme Council of Justice has always desired, only a federal institution is able to ensure a uniform training of all judicial actors in our country. This uniformity is essential to respect the equality of citizens before the law, of all Belgian citizens, and before the institutions responsible for enforcing them.

The bill submitted to you provides for a double structure taking into account the specifics of the function of magistrates, whose independence and impartiality are the master words, as well as other professions that do not directly participate in the judicial mission. The incorporation of the training of judges alongside that of other judicial professions therefore appears to us as an encouraging signal: it is the guarantee that the transversal and collegial vision of effective and equitable justice, which is based on well-trained professionals and tools at all stages, advances.

This also strengthens the image of cooperation, which is indispensable between the judicial actors who exercise the judicial function itself and all other actors who contribute to it.

Training is important, I just said, but the establishment of a true status respecting the responsibilities of each is equally important in the pursuit of professional and quality justice. It is indeed inconceivable to demand, on the one hand, a commitment and a professional conscience, as well as a continuous training and, on the other hand, not to establish a statutory recognition at the height of these obligations. We will therefore, in the framework of future bills, ensure that this balance is respected.

The financial and human resources to implement the big decisions and developments decided abstractly are essential, otherwise we could not translate these developments into a concrete and feasible reality. I am therefore pleased to note that the budget allocated to this institute is evaluated on the basis of the total wage mass of the staff concerned by the reform; after four years, it will constitute 1.9% of the reform.

Alongside these positive advances, some points seem to require greater caution.

First, the articulation of training competencies between the federal state and the Communities. The [...]

Mr. Van Parys, I have not finished!

For some, this articulation is not respected in the bill. You said it. For my part, I do not think that is the case. If the teaching itself is a community competence, I acknowledge it, the judiciary remains, rightly, the authority of the federal state. It is necessary to see in the creation of such an institute rather the fulfillment of the competence of management of the judiciary – and therefore also of the competence of this level of power – than the creation of a new branch of education.

Furthermore, this collaboration and coordination with the Communities is ensured through the presence within the Scientific Committee of representatives of the academic world designated by the Communities. This presence will enable the Institute to carry out its tasks in coherence with initiatives taken at the federal level, in particular in the development of training programmes.

So will the Minister of Justice designate the representatives of the Communities? So far have we come? This is provided for in this draft law.

It seems to me that prominent constitutionalists could look at the issue and on this controversy, if necessary. I think, for my part, that as regards the institute to be created, it must remain at the federal level.

Another controversial question is the respect or non-respect of Article 151, §3, 1° of the Constitution, which assigns to the Supreme Council of Justice the task of ensuring "the presentation of candidates for a appointment of judge (...) or of official of the public prosecution".

However, in the draft, the presentation of the magistrates intended to compose the board of directors of the future institute is entrusted to the Minister of Justice. Some see this as an unjustified interference of the executive in the judiciary. The situation must be brought back to its context: the task of the Supreme Council of Justice is provided in the framework of the appointment of judges in relation to their function as judges of the headquarters or the public prosecution. It is about appointing magistrates, who will have a different hat within this institute. They will no longer be forced to make decisions with respect to the prosecutors but to collaborate on the professionalization of the judicial world, a completely different task.

In other words, the guarantees of independence and impartiality, in particular with respect to the executive, are not directly challenged by this designation method. On the other hand, it is necessary to ensure that the prospect of such designations cannot be agitated by a scrupulous executive power in the form of a "carrot" in order to influence the jurisdictional tasks of magistrates. Such incitement or reward is indeed incompatible with the independence and impartiality of the said magistrates.

This same article 151 of the Constitution entrusts the Supreme Council of Justice with the task of training the judges of the seat and the public prosecutor.

It could therefore be thought that this rule is also not respected by the bill. But once again, beyond the letter of the text, it seems to me that the spirit of the Constitution is respected: the training of magistrates must be ensured by a competent body. Thus, it was allowed to bring together the training of all judicial actors within a large institute while preserving the know-how that the Superior Council has been able to develop.

There are many gateways between this new body and the Council, both in terms of the composition of the instances and participation in decision-making.

Finally, it is in relation to the component concerning the constitution of new judicial traineeship commissions incorporated into this new institute that it is necessary to be, in my opinion, the most circumspect. Through this, we are setting up the first stages of a reform of access to the judiciary, which is also the subject of another text that we are examining in the Justice Committee.

With this new structure, we break the direct link between the trainee and his trainee master, an important link if any, with regard to the control and evaluation of the course of the trainee, which could prove harmful for the trainee. On the other hand, we try to address the concern of the interns themselves, who feel insufficiently framed in their task.

However, other parameters must be taken into account in this debate: the reality of the chances of appointment presented by the different routes of access to the judiciary, the question of the status of trainees and the procedure of internship as well as other issues that we will address later in the debate currently taking place in the Justice Committee. It is precisely in this debate that we will ensure that a fair distribution between the obligations and opportunities that will be offered to the different candidates for magistrates is respected.

In conclusion, the MR group, which considers the purpose pursued by the text to be praised and who will remain attentive to ensure that these measures are not deviated from their purpose and are accompanied by other instruments necessary for the modernization of Justice, will support this text.

Mr. Speaker, colleagues, Mrs. Minister, the bill for the establishment of an Institute for Judicial Training is indeed a school example of how the unitary forces in this country are engaged in a recovery strategy, a school example also of word breaking. By the way, we have just heard the MR sing the praise of this draft, the most Belgicist party has made clear how Belgian this bill is.

The Octopus Agreement of 24 May 1998 was clear and unambiguous: there would be one school of magistrates per Community, that is, one for Flanders and one for Wallonia. On page 7 of that agreement we read literally: “There will be established a school of magistrates per Community in the form of an interuniversity center. For this purpose, a cooperation agreement will be concluded with the Communities, which will also provide for a functional link with the High Council for Justice. Colleague Van Parys, it is in this context that the constitutional role of the High Council should be seen and nothing more than that.

That separate school of magistrates was for some parties a very essential part of the Octopus Agreement, for example for the then People’s Union. Geert Bourgeois even saw it as a first step towards the regionalization of the judiciary. It was for him the motivation, together with the split or partitioned High Council, to defend that Ocotopus Agreement. But once more it is clear that in Flanders there are too many well-believing politicians who are constantly letting themselves in the clothes. After the double magistrates’ school, the Octopus parties allowed the double magistrates’ school to be inscribed in the Constitution or even to specify a legal framework.

Today we see the result of so much lightness. After a year of doing nothing under Dehaene and four years of treachery and counting by Verwilghen, we are at the exact opposite of what was agreed. We are seized with a unitary bastion in which the Communities have nothing, nothing at all, to say. There is not even a separate department, there is no division into two departments of this school of magistrates. It is a large unitary bastion.

We have predicted this. We had seen this absolute departure arrive, but we were worn out for doom-thinkers. We saw ghosts. We repeatedly questioned Verwilghen about the state of affairs, and on 23 October 2001 he answered me: “I cannot get rid of the impression that you see behind almost everything the ghost of the unitary institutions or intentions. Nothing is less true.”

That was what Verwilghen said then, colleague Borginon. Nothing is less true! No unitary institutions or intentions. "H ⁇ , let it be clear that the High Council for Justice does not develop unitary training. There can be no unitary recovery.” So he explained it here in the Chamber: there can also be no unitary recovery. Those are the words of your Minister Verwilghen, who is still a minister in this government. “It is no longer possible by involving the VLIR and the Conseil Directeurs des Universités Francophones de Belgique. This should be a reassurance.” And if we were reassured!

Eight months later, we questioned the Minister again. On 25 June 2002, Minister Verwilghen answered our question that an agreement had been reached with the Ministers of Education regarding the evolution of the training of magistrates. "The discussions are currently continuing unhindered," 2002, five years ago, "because we have now made a final proposal that could lead to an equalization. I can only hope that it will also result in an acceptable compromise in the coming weeks.” In the coming weeks, we will write June 25, 2002. But Verwilghen allowed himself to counteract and ringlore on all sides, including, of course, also by the Socialist Party. There was no further progress in this case, on the contrary.

The High Council for Justice became more and more a unitary Belgian machine and began to conduct an intense campaign, up to the Committee for Justice, for a federal institute for the training of magistrates that would even become part of that High Council. Collega Van Parys, the High Council went too far with this and wanted to become supreme by itself. The weak VLD’er Verwilghen – weak VLD’er, which seems to have become a pleonasm – let go and eventually threw the towel into the ring. Nothing came from what he had announced. The unitary ghosts, the unitary demons of Verwilghen, seem to exist. They picked up their battles even across the entire line at home.

Today, thanks to the active collaboration, Laurette Onkelinx can co-work, colleague Borginon, the active co-working of the purple poulains of VLD and sp.a with her unitary institute for judicial training. It is indeed an unprecedented disgrace that such an important turn can only take place, without a cane crawling, without the media paying any attention to it and, above all, without the Flemish parties in the Flemish Parliament standing on their lines and offering any weather.

However, there are reasons to give backwork. The establishment of the new Belgian Institute is, in the first place, completely unconstitutional. This institution directly opposes Article 127 of the Constitution, which assigns the basic powers in education exclusively to the Communities.

This Parliament, this Chamber, is today the authority of the Communities. This Chamber takes the place of the Communities. It is incomprehensible that the Flemish parties tolerate this and even actively cooperate in doing so. You tolerate, ladies and gentlemen of VLD and sp.a, that an institution is being created here, about which this minister, who looks so misguided at “Flanders” – so she says it when she means Flanders – has not even concluded a cooperation agreement with the Communities. The Communities are not even given a worthy place in the governing bodies of this school. All they can do is, through the universities, submit people to the scientific advisory committee. However, they must be appointed by the Belgian Minister of Justice.

The Flemish Community is humiliated today, but no one dares to offer any response. It is even worse than that. The new institution that is being created today will become a real competitor for the Flemish universities in the field of continuing education. This new Belgian institute will become a mastodont. The figures have already been mentioned. It will be much more than a regular magistrates’ school, with an annual budget of as much as 10 million euros. This Belgian, unitary bastion will even be able to apply for European subsidies for its studies and thus personal, people, resources and cents from the Flemish universities. It is high time for the Flemish rectors to take action against this Belgian recovery.

Colleagues, the Flemish Interest had submitted a proposal for a conflict of interests in the Flemish Parliament but to our astonishment there was no serious debate and the proposal was rejected, also by CD&V and N-VA. The manifest excess of power and the abstinence of power by the federal level should not even be prosecuted. It has come to such an extent that CD&V and N-VA are involved in the plight of purple and at a crucial moment the Flemish interests are shifting aside for the purple interests. That promises for the tripartite that awaits us after 10 June.

I would like to finish, colleagues, with a question to CD&V. Namely the question to CD&V, when she comes into the federal government tomorrow, whether she will cancel this misconduct of Onkelinx. I am surprised by the very concrete statement of colleague Van Parys, namely that this is the first thing you will abolish if you come to power federally. We will remind you, colleague Van Parys, of these very important words.

Mr. Speaker, Mrs. Minister, dear colleagues, for many years, we have supported the creation of an institute for the training of magistrates and I have asked the minister many times about this. This was the wish of everyone, especially the magistrates who wished to be able to benefit from a training specific to their profession.

Today, it is difficult not to acknowledge that the sharing of competencies between the SPF Justice and the Supreme Council of Justice has not promoted the development of a coherent training policy. This is one of the reasons that justified the government’s submission of the bill. It is also for this reason that I submitted a bill, co-signed by colleagues from the MR and Ecolo, which aimed to entrust the competence in the training of magistrates to the CSJ alone.

The reunification of these powers within an organ independent of the executive and legislative power seems to us indeed indispensable. This is in line with the recommendations of the opinion delivered at the level of the Council of Europe by the Advisory Council of European Judges.

But was it necessary to create a separate institute or to bring together the training competencies within the Supreme Council of Justice? This seems to me to be a fundamental question. We responded to this in the framework of a bill. Just recently, I heard Mrs. Marghem, who had also co-signed the proposal mentioned above. We had entrusted all training subjects to the Supreme Council of Justice. Why Why ? Simply because Article 151, §2, 4° of the Constitution states that the Supreme Council of Justice exercises its training powers in relation to judges and public prosecutors; this competence is implemented with the assistance of the SPF Justice which has an executive and logistical role in this matter.

If concordance and consistency do not exist, let us respect at least the prescribed and the text of the Constitution and entrust the whole of this task to the Supreme Council of Justice.

According to Article 259bis-9 of the Judicial Code, the Supreme Council must not only prepare the directives and programs for the continuous training of magistrates and the judicial internship, but also and above all approve the directives and training programs, subject only to ratification by the Minister of Justice.

The execution of the training is entrusted to the SPF Justice.

In the bill, the Supreme Council of Justice sees its competences diminished as it is the only training institute that establishes the training programmes for magistrates and judicial trainees. The Supreme Council of Justice is deprived of its power to approve programs, while the Constitution requires it to approve these various programs.

It only develops guidelines which the Institute will take into account when establishing training programmes. The Institute ensures the practical implementation of the programmes. Approval of programs by the General Assembly of the Supreme Council of Justice as well as ministerial ratification disappear. It is therefore clearly a decrease in the powers of the Supreme Council of Justice, contrary to what was intended within the framework of the Constitution and transcribed in Article 259bis of the Judicial Code.

Even if the influence of the Supreme Council of Justice in the new institute is guaranteed – it was not possible to put it completely aside – its role is marginalized in this area of competence that is training. One may wonder what the explicit mention of a competence in the Constitution may well serve, given that the first thing that is done when entrusting a competence within the Constitution is to remove it. Bis repetita: even when the Constitution is ⁇ clear, one is allowed to violate it later.

As the State Council has recalled, the Judicial Code was adopted by the legislator simultaneously with this constitutional revision that resulted in this article 151 of the Constitution. It should be deduced from that that legislative provision faithfully corresponded to that Article 151.

We therefore share the view of the State Council that it should be restored to the Supreme Council of Justice the power to approve these directives and programmes, this only with regard to magistrates and judicial trainees. It is true that the Institute concerns both magistrates, judicial trainees and judicial staff. As regards judicial staff, the fact that this competence is entrusted to an institute is not a problem. In any case, this must not necessarily depend on the Supreme Council of Justice, but in any case, with regard to magistrates and judicial trainees, the Constitution obliges us to entrust all these powers to the Supreme Council.

We find it appropriate that the reunification of these competences should take place within an institute created with the Supreme Council of Justice.

If the Institute is established outside the Supreme Council of Justice, it seems to us essential that the Supreme Council retains its constitutional prerogatives – which is more normal – in regards to directives for the initial and permanent training of magistrates, in regards to the establishment of training profiles and in regards to the assessment of the implementation of these directives and their impact on the functioning of the judicial order.

Therefore, our proposal was intended only to respect the Constitution.

With regard to international cooperation in training, the project also compromises the powers of the Supreme Council. Indeed, the draft does not mention that the role of the Institute at the international level must be exercised within the limits of its competences, while the Higher Council remains an actor at the international level for what falls within the competences assigned to it by the Constitution.

Thus, we do not respect the Constitution, nor the prescriptions of the Judicial Code, nor the spirit of the various reforms that we have wanted to evoke. The Constitution says it, and the Council of State only repeats it. Despite all these elements, we do not respect a proposal submitted, which seemed to me, however, to fall into the sense.

Regardless of this fundamental problem of Constitution, the budget component remains. On the principles, everything is impeccable; I would almost congratulate the government since the calculation of the training budget is made in terms of percentage of the salary mass of the staff. It is superb! The funding will ⁇ follow the professional wage mass. Great to the point that we did not want to do it immediately, because we may not have enough money. Looking forward to 2008! Thus, the principles of the budget component are magnificent as long as they come into force. This is scheduled for 2008, so for the next government, which makes it easier to write beautiful funding principles.

On the other hand, as regards the appointments and the independence of this institute from the executive power, it is immediately a matter of appointments. In its opinion at the Council of Europe level, the Advisory Council of European Judges insists on the independence of the training body, which must be independent of the executive and legislative powers. We say it – but we are only the opposition – the Council of State reminds it and it is also reminded at the level of the Council of Europe. What can be more natural than having this independence?

For the government, the Institute of Judicial Training as designed in the project sees its independence sufficiently guaranteed because it has legal personality, because the management has two divisions, because it has a guaranteed own budget – only from 2008 –, because four magistrates are members of the board of directors and four magistrates are members of the scientific committee. This is true, but we say, in vain, that the State Council notes that the members of the management are appointed by the King, by royal decree, deliberated in Council of Ministers, on the proposal of the Minister and only upon the opinion of the Commission of Appointment and Appointment of the Higher Council.

So, on paper, the appointments appear to be done in independence, but when they take place, this will not necessarily be the case, because sufficient measures to guarantee it have not been taken.

The draft also allows the King to appoint a seat magistrate to a salary position while Article 155 of the Constitution aims to prevent the executive power from attaching the judge’s loyalty in the hope of a reward. According to the State Council, in this case, the draft does not comply with the constitutional text. This point has already been raised by Mr. Van Parys and Mrs. Marghem like myself. This seems to me fundamental: again, a constitutional provision is not respected. It would obviously be quite different if these magistrates were appointed by the Supreme Council of Justice. What is more normal than to respect the Constitution and independence that must be one of the foundations of this institute?

The project is also not very explicit about the qualities required to be director of the Institute and the Scientific Committee. I must admit that Mr. Van Parys has spoken enough about it recently. It would have been much healthier to detail these qualities clearly. This applies to the management of a training institute; it applies to ⁇ important functions that require a number of qualities and quite sufficient independence.

In principle, we are obviously agreed that this training of magistrates should be provided. We submitted a proposal on the subject, we defended it, we asked you a whole series of questions. Unfortunately, I find myself forced to repeat that again, the prescribed very of our Constitution is not respected. At the budget level, the intentions are good but are postponed to tomorrow; on the other hand, when it comes to bringing into force this existential independence for this type of institute, we allow ourselves to defy them by allowing the executive to appoint and by not respecting the Constitution. That is why we will not be able to support this project.

Mr. Speaker, colleagues, I remain on my couch because I have my computer at hand. This is useful for my speech.

I will briefly address three elements. First, where does the debate about the magistrates’ school come from? Let’s be honest: when the Octopus Agreement then sought a different way of appointing the magistrates, at some point the proposal was also launched, as is the case in a number of other countries, to provide additional training to people who have just graduated. After they have completed that additional training, they can go through a kind of training scenario to immediately become a professional judge. If one chooses to do so, it is logical that, given the situation of the Communities in our country, such training would be organised at the level of the Communities. In the middle of the Octopus Agreement, however, a different way of appointing magistrates was provided, as it exists today. Therefore, the debate is no longer about the magistrates’ school, but about the training of the existing magistrates. That is a first point.

Second, I give you a small anecdote. Mr. Van Parys was talking about it being a federal institution, while the High Council for Justice has already been divided for its operation. That is true, that is a lack of the present draft. I agree with that. I remember that at that time, on my proposal, in a meeting at which I was present, in the article on the Constitution the division of the High Council for Justice was inscribed. My proposal was then followed and not the original texts on the high council, in which there was no mention of the division, as it is now stated in the Constitution.

Third, for a time, colleague Laeremans is not entirely wrong. The Flemish Parliament has indeed held a debate on a motion of the Flemish Interest on the draft, in order to invoke a conflict of interest. It was rejected by a clear majority. In the speech of Mr. Caluwé, group leader of CD&V in the Flemish Parliament, there is a very different version of the CD&V position than what Mr. Van Parys has come to explain here at the tribune. Mr. Caluwé has literally stated: “In itself there is nothing wrong with the legislation.” Mr Van Hauthem had argued in the debate that the case would go to the Arbitration Court, based on the fact that it would be a violation of the competence in the field of education. Well, Mr. Caluwé replied, “The Arbitration Court will send us walking. There is only a problem when the law is not implemented in accordance with the powers.” The position of the CD&V group in the Flemish Parliament is therefore entirely different from what Mr Van Parys says here on the tribune. In the Flemish Parliament, CD&V and N-VA – because they voted in the same way – say that there is actually nothing wrong with the legislative text in terms of competence. Only in the implementation of the law – and I fully agree with the position which they have interpreted there – one must be careful that one does not enter into the field of competence of the Communities. This would be the case, for example, when one no longer focuses on the training of the magistrates and the secretaries, but on one for the wider public, which is of course a competence of the universities.

I will not go back to the controversies that led to our discussions. This has been discussed extensively in the committee. All the arguments were exchanged. Furthermore, with regard to conflicts of interest and competence with the Communities, the Flemish Parliament itself decided and recognized that the establishment of a continuing training institute for members of the judicial staff was indeed within the federal competence.

Essentially, the realisation of this continuing education institute is expected with impatience on the ground and will be at the heart of the modernization process of Justice. This project represents the conclusion of a long work, carried out since the beginning of the legislature with the various actors interested in training. If it allows to support all the staff of the Justice, it will also be important for our fellow citizens because tomorrow the magistrates and staff who assist them will be better trained. The quality of the services provided will be improved.

You know my will, repeatedly expressed, to modernize Justice. This project is the key to this modernization process. The modernization of the judicial system includes the reform of the careers of staff members. We attach to it. A first law, that of 10 June 2006, which came into force last December, concerns levels B, C and D. A second project for level A and secretaries/secretaries is under consideration in the Senate. Alongside the careers, there is the modernization of the working tools, the strengthening of the organizational and structural capabilities of the jurisdictions; these are the links with "Themis" and "Phenix".

But what would these reforms be without a training policy to support them? It is necessary to ensure the acquisition and transfer of knowledge, know-how and technologies through continued training for the benefit of all members of the courts of the Kingdom.

The Institute of Judicial Training, independent of the executive and legislative powers and with a significant own budget – we have imposed on ourselves the same obligation as that imposed on the private sector, i.e. 1.9% of the salary mass devoted to training – will determine and fix, under the control of the Supreme Council of Justice, the policy of training.

The skills of designing and executing training programs are therefore finally reunited in his hands. It is also a guarantee of efficiency.

The Institute was conceived with openness to the world of degree programs. This translates into the composition of the Board of Directors and the Scientific Committee.

It was also given powers that enable it to conclude cooperation and agreement protocols with other training providers.

We need professionals in training and management. I emphasize the need for the multidisciplinary nature of the powers of future leaders and members of the Institute.

It is a commitment of format to the judiciary, as professional training and the development of a tailored training policy are undisputed bearers of modernity.

Through this bill, the legislator provides a performant and adapted tool to the third power.