Friday, 9 December 2016

Not only must Justice be done; it must also be seen to be done

Two things bother me about the Wilders-trial.
They have nothing to do with whether he is innocent or guilty according to law. That is not my area of expertise.
I have problems with the way the trial was conducted. This transcends the discussion about “guilt” or “innocence”.

For me one of the most important principles of the rule of law is that justice must also be seen to be done.
This means that the mere appearance of bias during a trial must be avoided. Otherwise the impartiality of the judicial process will become contentious, which in turn diminishes the legitimacy of the rule of law.

That is my first problem. 
There was the appearance of bias during the trial and the defense will certainly use this in the appeals process as an argument for overturning the verdict.
The appearance of bias was in the person of one of the three judges, Elianne van Rens.
In a television programme this judge had publicly criticized Wilders’ ideas and the earlier trial that had acquitted him.

During the trial the defense called a professor of jurisprudence at Leiden University as a witness. He explained why he thought that Wilders was innocent of a crime.
Ms. van Rens interrupted him constantly with remarks (sneers?) like “that is just your interpretation”. She did not interrupt any witnesses for the prosecution.
Unnecessary comments, because it was obvious that it was his interpretation as a professor of jurisprudence.

The defense requested the substitution of the judge. This was refused.

My second problem is with the conclusion of the trial.
After the refusal to substitute one of the judges, Wilders began referring to the trial in the terminology of a kangaroo court. At the end of the trial, the judges wrote that Wilders’ terminology was “unworthy” of a politician.
The judges were there to interpret the law not to pass moral judgments on the “worthiness” of politicians.

This reinforces my amazement at the general arrogance of the judges.
As if they did not care about the sensitivity of trying an elected politician for his political statements.
As if they had never heard of the expression: “Not only must Justice be done; it must also be seen to be done.”

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