This is a unique statement, says Paul Bovend’Eert, professor of constitutional law at the University of Nijmegen. ‘Usually judges stay away from political conflicts. I cannot recall any other instance of such interference.’
The judgment of the Amsterdam court in the Gündogan-Volt case is a cause of great surprise in academic circles. Due to the separation of powers in the Netherlands, the judiciary is expected to exercise restraint in political matters. The debate has still not subsided about the judgment of the Supreme Court in the case that Urgenda had brought against the Dutch state about climate targets.
The preliminary relief judge ruled on Wednesday that Volt had acted unlawfully by expelling MP Nilüfer Gündogan from the faction because of complaints about transgressive behaviour. The judge found no legal basis for a suspension in the party statutes and the group regulations. The party also failed to provide Gündogan with an opportunity to rebuttal. The judge’s ruling only related to Volt’s procedure to expel Gundogan from the faction. The complaints themselves were not the subject of the verdict.
Party leader Laurens Dassen stated on Wednesday that Volt will accept the verdict, will include Gündogan back in the group and that he wants to start a mediation process with her. It is also discussed how the investigation into the complaints can be continued. On Thursday, the party reconsidered this decision. Volt is still considering appealing, a spokesperson said.
great surprise
‘I read the verdict with great amazement,’ says Tom van der Meer, professor of political science at the University of Amsterdam. ‘What surprises me is the lack of restraint on the part of the judge. Whether someone is part of a faction is purely the domain of the people’s representatives themselves. I don’t understand what gives the judge the competence to make a statement about this.’
The judge applied association law in this case, but a faction is not an ordinary association, says Van der Meer. ‘As Members of Parliament, politicians are part of a group, a role that they must be able to perform without any burden. Then a judge’s restraint is appropriate.’ The word fraction is not mentioned in the Constitution. Fractions also do not constitute an independent legal entity. As a result, they do not have a clearly defined status in the state system.
Tom Louwerse, senior lecturer in political science in Leiden, believes that the ruling opens the door to more involvement by judges in politics. He does point out, however, that Volt’s conflict is not politically substantive, like that of Geert Wilders with the VVD parliamentary party, or of the later Members of Parliament with the PvdA parliamentary party. Louwerse: ‘To date, a substantive conflict has usually led to a split. Will this also be submitted to the court in the future? I don’t believe this is the desired direction.’
Soil procedure
Failure to appeal the verdict would mean Volt’s failure to answer all questions about this lawsuit. Bovend’Eert believes that in that case it should stop there. “If two parties themselves do not want to appeal, you should let the case rest.” Van der Meer considers it a missed opportunity if there are no proceedings on the merits, because the judge did not even mention the dilemma of her involvement.
Volt hired an integrity firm to investigate complaints about Gundogan’s conduct. Because she had no confidence in that office, Gundogan refused to cooperate. According to Bovend’Eert, Volt would have done better to involve the integrity committee of the House of Representatives. ‘That is a neutral party that can check reports about transgressive behavior against the code of conduct for MPs.’