Judges are fired. Courts are expanded to tip the majority...

The Supreme Court and Norwegian courts must be protected from abuse of power by politicians. The tracks from Poland and the United States are frightening.

That is the opinion of the Judicial Commission. It is appointed by the government to assess the independence and organization of the courts.

– The courts are under pressure in some European countries, such as Poland and Hungary. In Norway, there is a strong political culture to ensure the independence of the courts. But also with us there is a need to secure the rule of law better, says judge Oslo District Court, Yngve Svendsen.

He is the head of the commission that recently submitted its final report.

– Developments in Europe have created increased awareness of the importance of protecting the courts also in Norway against short-term political currents, says Svendsen.

The Commission therefore proposes to give the Supreme Court and Norwegian courts protection in the Constitution.

Today, the principle of the independence of the judiciary is enshrined in the Constitution. But working conditions, appointments and administration etc. are regulated in general laws. These can be changed quickly through a narrow majority in the Storting.

– There is a need to modernize the Constitution’s provisions on the courts, and enshrine some important principles in the constitution, says Svendsen.

The Commission is concerned with protecting the principle of distribution of power, which was enshrined in the Constitution in 1814. According to this, we have three state powers:

• The Storting
• The government
• The courts

The Storting is legislative and granting power. The government is it executive power that implements the Storting’s decisions. The courts are judgmental power and judges according to the laws passed by the Storting.

The courts also decide whether the laws passed by the Storting are not in conflict with the Constitution.

Ensure that changes in the courts have broad support

By lifting the most central laws that ensure the independence of the courts into the Constitution, a political desire from the Storting to change these will take several years:

– A constitutional protection will prevent rapid legislative changes from a narrow political majority. This ensures that changes that are made are well thought out and have broad political roots, says Svendsen.

There is a built-in slowness for changes to the Constitution: A bill that is submitted, at a given time, can not be adopted before after that a new election has been held.

The proposals must be submitted in one of the first three years of a parliamentary term. The proposals can then be processed in the first, second or third year in next period in four years. Amendments to the Constitution also require a 2/3 majority. And 2/3 of the representatives be present in the hall when decisions are made.

What is happening in Poland, Hungary and the United States?

In Poland and Hungary, the government has attacked the country’s Supreme Court and tried to remove more judges. In an interview with Aftenposten, the head of the Polish Supreme Court told about a series of reforms that she believes are intended to take political control of the courts.

The EU has activated Article 7 of the EU Treaty against both Poland and Hungary. Article 7 is called the “nuclear button” in EU cooperation. It signals the start of criminal proceedings which could ultimately result in Poland and Hungary being deprived of the right to vote in the union if they do not remove the stranglehold on the courts.

In the United States, so-called “courtpacking” has become a hot potato in the election campaign ahead of the presidential election.

The US Supreme Court has consisted of nine judges since 1869. But now the Democratic presidential candidate Joe Biden is opening up to increase the number of judges, ie what the Americans call “courtpacking”.

It comes after Donald Trump probably succeeded in getting Conservative Amy Coney Barrett approved as a Supreme Court justice before the election. With Barett in place, the Supreme Court will have a majority of conservatives, 6 to 3.

Whether the majority are conservative or liberal judges can be decisive when politically disputed value issues are to be decided.

Several in the Democratic Party have spoken out to counter the Conservative majority by appointing a sufficient number of new “democratic” judges to tip the majority.

This is possible because the US Constitution today does not say anything about the number of judges in the Supreme Court.

Svendsen and the Judicial Commission will enshrine the following in the constitution:

• Independent administration of the courts
• Independent appointments of judges
• Judges must, as a general rule, be independent
• Maximum number of judges in the Supreme Court
• Establish a court hierarchy

Fears demonization of judges

Peter Frølich has long been concerned with giving Norwegian courts constitutional protection. He is the justice policy spokesman for the Conservative Party. He has submitted proposals for amendments to the Constitution – just within the deadline (third year in this period) – on the same topics that Svendsen is concerned with.

The Storting can thus adopting the amendments to the Constitution that the Commission proposes after the election – if the Storting so wishes.

Frølich believes the courts must be equipped to stand in the way of politicians who want to pursue “illiberal policies”.

– It’s just looking at the world around us and what is happening in Poland and Hungary. But also the discussion about “courtpacking” in the United States.

He says Norway is well prepared for traditional constitutional crises, such as Quisling’s coup in 1940. He believes that future attacks on democracy will start with attacks on the courts.

– It can start with a delegitimization of the courts and an attempt to make the judges enemies of the people.

He says it will start “in the small”, with “demonization of judges”. That judges are branded as an elite who abuse their power.

– It invites in the next round to replacements, as seen in Poland and Hungary, he says.

– But do you see any examples of this in Norway today?

– We have no politicians today who are so populist that they deal with such. And that is the point: we must take action in good times. And ensure us a framework when storms threaten.

The Labor Party has not taken a position

The chair of the justice committee, Lene Vågslid (Labor Party), says the proposals from the commission are important. And that it is important to ensure the independence of the courts

– We will carefully review the report and look forward to discussing this in connection with the constitutional proposals that were put forward this autumn by Frølich, she says