Dissolution ’progressive’ Dutch East Indies high court in 1901 offers lessons for today

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In 1901, the House of Representatives agreed to dissolve the Supreme Court in the Dutch East Indies: this was a remarkable example of political interference in colonial jurisdiction. But what makes it even more remarkable is the fact that the constitution still fails to regulate anything that pertains to the abolition of courts of justice, writes Rowin Jansen in an article that appears this week in Rechtsgeleerd Magazijn Themis.

Legal and political state powers are supposed to operate independently of each other, but Jansen explains that over a hundred years ago, the Netherlands experienced a remarkable clash between the two. In 1901, the government decided to dissolve the Supreme Court of the Dutch East Indies; this was the colony’s highest legal authority and was comparable to the Supreme Court of the Netherlands. Although the court was reconstituted on the very same day, the new slimmed-down format was characterised by the dismissal of several judges and the reduction of a number of duties and responsibilities.

Heavy workload, or too progressive?

The Supreme Court of the Dutch East Indies played quite a notable role: it was tasked with overseeing all’of the colony’s judicial decisions, and literally read all’of these decisions because the level of the lower courts was deemed to be too low for the Indonesian population. "This led to miscarriages of justice, cases that had to be completely reheard by the Supreme Court, which resulted in a consistently heavy workload and long waiting times." By dissolving and reforming the Supreme Court, and giving the lower courts a higher budget and more responsibility, the government in the Netherlands hoped to improve the quality of the administration of justice.

However, Jansen notes that other sources have suggested that there was more to it than this. "This may also have provided a means for sidelining a court that was somewhat too progressive. This involved a number of very vocal judges who cared about the legal position of people that had legally been called ’natives’. Such conduct was not always so well received in the House of Representatives, where some decisions were openly discussed and reviewed. What is certain is that the administration of justice in the Dutch East Indies regularly failed to conform to the views held by the House of Representatives. The mindset was that the colony merely needed to conform to the wishes and thoughts of the homeland."

It is difficult to ascertain which of these reasons was decisive in the decision to dissolve the Supreme Court. Because the archives of the Supreme Court in the former Dutch East Indies were eaten by white ants, Jansen had to rely on parliamentary records, journal contributions and newspaper articles from this period.

Continuing risks: Is vigilance necessary?

According to Jansen, the fact that the politicians in The Hague proceeded to dissolve an independent court in the East Indies could in and of itself be described as remarkable. From a constitutional standpoint, there was nothing to prevent this political intervention from happening at that time. But Jansen claims that it is all the more remarkable that more than one hundred years later, there are still no constitutional or statutory provisions that pertain to the dissolution of courts. "It’s not possible to simply dismiss a judge, but a court can still be dissolved. This means that a judge can remain appointed, but that he will subsequently no longer be assigned any work."

"Even now, a court can be dissolved if a majority of politicians in The Hague so wishes. This is a cause for concern, and certainly not an unrealistic one when you look at developments in such countries as Poland, Hungary and the United States. Politicians from various levels of government in these countries also chose to sideline critical judges. Vigilance is not an unnecessary luxury, so it would be advisable for the Dutch legislature to introduce a serious safeguard against such ’chicanery’ with the judiciary."

Literature reference

https://www.uitgeverij­paris.nl/n­l/reader/2­000000002/­2000000039 . Beeld via Leiden University Libraries Digital Collections.