Courts, Cabinet and Coalition Parties: The Politics of Euthanasia

in a Parliamentary Setting

BERNARD STEUNENBERG

(1)Historical background: euthanasia debate in the Netherland

(2)Main features of parliamentary system in the Netherlands

(3)Model of judicial-legislative interaction according to PPT

(4)Analysis of decision-making process on euthanasia in the Netherlands In view of two alternative PPT hypothesis

(5)Main conclusions: the role of the courts in the euthanasia debate

Outline

1980-s: courts started developing new interpretations of the prohibition of euthanasia, which allowed doctors to commit euthanasia without becoming liable to punishment

1984: Supreme Court acquitted the physician who committed euthanasia, stating that it was a reasonable choice under the circumstances and the physician committed it in a careful way. This decision influenced the development of legislation on euthanasia

1985-1990: courts permitted euthanasia under certain well-specified circumstances, wile political parties were unable to introduce new regulations on euthanasia

Historical background (1)

1993: after 15 years of political debate a new bill was accepted which conferred on the minister of justice and the minister of welfare, health and cultural affairs the power to set standards about the way a physician must report a case of euthanasia to the public prosecutor.

Act does not legalize euthanasia, but only aims to improve the prosecution’s ability to assess those physicians who have practiced euthanasia

Historical background (3)

LEGISLATURE RECONCILED ITSELF TO THE INTERPRETATION OF THE COURTS

Why courts were able to give new interpretations to the provisions on euthanasia?

Why legislature were not able to change those interpretations by introducing new regulation?

To what extend the lack of political consensus within governing coalition contributed to developing more liberal court interpretation of euthanasia ban?

WHAT IS THE IMPACT OF THE COURTS IN THE NETHERLANDS ON THE POLITICAL DECISION-

MAKING PROCESS IN THE CASE OF EUTHANASIA?

Research questions

SENATE HOUSE CABINETElected by members of Provincial Councils

Elected directly by voters

Formed based on coalition agreement

Can discuss the bill approved by the House, not allowed to amend it

Has right to initiate the legislation, to amend the bill initiated by another player and block legislation initiatives of counterparty.

Most representatives are members of a political party, none of those parties holds the majority, which requires the formation of voluntary governing coalition

Due to “informal” veto power will not introduce legislation which will not be acceptable by the Parliament

Policy making is based on the consensus between Cabinet and political parties represented in both chambers, thus it is not clear who has the last word. Each participant has a veto right.

Parliamentary system in the Netherlands

Three types of players are distinguished in the model: (1) the coalition parties represented in parliament; (2) the cabinet; and (3) the courts.

The players will decide on the extent to which euthanasia should be permitted, each player has a unique position on euthanasia one the player prefers most. This position is the player’s ideal point. The further away an alternative is from this ideal point, the less it is preferred

The cabinet’s (induced) preference will be a point between the ideal points of the most extreme members of the governing coalition, since the formation of the cabinet is the result of bargaining among coalition parties.

The decision-making process will be taken as a sequential game with politically sophisticated actors, having complete and perfect information. Players doesn’t want their decisions to be overturned

Judicial-legislative interaction. Main framework. (1)

Judicial-legislative interaction. Main framework. (2)

Court

Respond to

court’s

interpretation

by a new

legislationGive

new

interpret

ation of

existing

lawCabin

et

Cabinet

Parliament

ParliamentKeep the

existing SQ

Accept court’s interpretation

Keep the existing SQ

Propose

new legislation

Accept

Reject

Accept

Reject

New SQ decided by legislators Court’s interpretation

New SQ decided by legislators

Existing SQ

Cabinet as response to the court interpretation must choose a bill from the set of proposals that will not be vetoed by the coalition parties.

Set of politically feasible bills is the is the intersection of preference sets of veto players, more preferable than the SQ

If the set of politically feasible bills is not empty, then there exist a proposal in order to change court’s interpretation

If the set of politically feasible bills is empty, the statuary interpretation is invulnerable to legislative response

Feasible set is empty iff the court’s interpretation is equivalent to the ideal point of the most extremes coalition parties or any point between the most extreme two players (A,B) => Politically viable interpretations

Politically viable interpretations

SQ A B2SQ - APolitically viable interpretations

Set of politically feasible bills

Hypothesis 1 ( constrained policy

advocate hypothesis).

Hypothesis 2 (conserver hypothesis)

Have well-defined policy preferences, and they try to impose their preferences by giving a new and divergent statutory interpretation

Have originalist preferences. Courts are not so much interested in setting a new policy, but in maintaining the original legislation or legislative intentions

Select a statutory interpretation that results in an empty set of politically feasible bills and they most preffer => POLITICALY VIABLE INTERPRETATIONIf the courts behave as policy advocates, the statutory interpretation of the courts is found between the policy positions of the most extreme coalition parties, and is equivalent to, or as close as possible to, the preference of the courts.

If the courts behave as conservers, the statutory interpretation of the courts is found between the policy positions of the most extreme coalition parties, and is equivalent to, or as close as possible to the status quo.

Court Preferences and Equilibrium Outcomes. Two different views on courts’ preferences.

(1) When the status quo and the courts’ ideal point are found outside the set of politically viable interpretations and at different sides of the governing coalition. Then, a court that behaves as a policy advocate will select the policy position of the rightmost coalition party as the equilibrium interpretation, while a conserver chooses the policy position of the leftmost coalition party, or vice versa.

(2) When the status quo is found in the set of viable interpretations, while the ideal point of a policy advocate is not equivalent to the status quo. A conserver will not present a new statutory interpretation and adheres to the current statute. A policy advocate, however, will come up with a new interpretation that diverges from the current statute

Different equilibrium outcomes

Leftmost

RightmostSQ

(=Conserver Ideal point)

Policy advocate ideal point

Politically viable int-s

1978: a majority in parliament supported a motion in which the cabinet was asked to form a special committee to obtain advice about future policies on euthanasia, starting point of the euthanasia debate

1981: ruling of the court in Rotterdam, where the court pointed to a number of standards with which a physician had to comply in performing euthanasia (deviation from a common view at that time)

1984: opposition party D66 (Democrats’66) submitted a bill on euthanasia to parliament. Proposing to legalize euthanasia in those cases in which a patient, who was facing unbearable suffering without the possibility of any further treatment, asked a physician to end his or her life. The bill aimed to change the Code of Criminal Law so that a physician who performed euthanasia would no longer be prosecuted

The politics of euthanasia

Early 1986: Cabinet’s responded to D66 proposal that new legislation was not necessary and euthanasia should remain the criminal offence. It should be restricted to cases in which patient suffers unbearably as a result of an illness and whose death is to be expected. In general cabinet’s position was more restrictive compared to D66 proposal.

1986: After elections a new government was formed between Christian Democrats (CDA) and Liberal party, which opposed one another on euthanasia

1987: The cabinet introduced a new bill which proposed to change the Code on the Medical Profession adding standards with which a physician had to comply in performing euthanasia. No change in the Code of Criminal Law. A court still had to decide whether or not a physician was to be held liable to punishment. Relied completely on the existing jurisprudence.

The politics of euthanasia

1989: Government fell. New government was based on coalition between Christian Democrats and the Labour party. A committee was established to survey the practice of euthanasia by physicians. The bill on euthanasia from the precedent government was put on hold.

1991: Government withdrew the 1987 proposal on euthanasia and indicated that the assessment of physicians who perform euthanasia should be improved. A new bill conferred on the two ministers the power to set standards about the way in which a physician has to report a case of euthanasia to the public prosecutor.

1993: The new bill is adopted by the parliament.

The politics of euthanasia (2)

Christian Democrats + Political Reformed Party

(SGP) + Reformed Political League (GPV)

Liberal Party + Labour Party + D66 + Green Left

Reject legalization of euthanasia and insist on the maintenance of euthanasia asa criminal offence

Euthanasia should be permitted under well-specified circumstances

Individuals cannot freely dispose of their life, which is a gift of God

The individual has a right of to end his/her life

New legislation is needed only to reconfirm the status quo

In favor of new statutory regulation that allows physicians to carryout some of the euthanasia requests they receive.

Party positions and cabinet government

Policy positions of political parties on euthanasia (1990 survey)

Controlled 60% of votes

Parliament was not able to approve a liberal statutory regulation on euthanasia because of the domination of the CDA in various governing coalitions in the 1980s.

CDA were able to prevent any initiative from becoming law

Liberal party and the Labour party conformed with their coalition partner and did not support any opposition initiative, otherwise, the governing coalition would fall.

Why lifting of euthanasia ban was impossible?

Cabinet government and coalition parties, 1977-1994

CD dominated in government coalition

SC proposes to the House 6 candidates, usually anticipating the preferences of the House => The House selects 3 candidates and submits the list for approval to the Cabinet => The Cabinet officially appoints the SC members.

Given the various cabinets formed in the 1970s and 1980s between the CDA, the Labour party, and the Liberals, the preference of the SC is expected to be found between the most extreme policy positions of these three parties

1984-1987: SC interpretation of euthanasia legislation to some extent resembles the positions of Liberal and Labour party, while CDA strongly opposed to lifting a ban from euthanasia. SC’s position is seriously deviated from the euthanasia ban and is not identical to CDA’s position

What are the preferences of the Supreme Court (SC)?

Pro euthanasia

Anti euthanasiaLibera

lsLabour party

SC CDA

Where is the initial SQ?

Sets of politically viable interpretations

Following the conserver hypothesis If the Status Quo is equivalent to q1, there is no need for a new statutory interpretation because q1 lies in the set of politically viable interpretations. This clearly contradicts to empirical observation as the SC interpretation of euthanasia law shifted to more liberal view

If Status Quo is equivalent to q2, there should be expected a minor change to conform to CDA position, but the jurisprudence developed in the 2nd half of 80s yields a much more liberal view.

Conserver hypothesis application

This outcome of the euthanasia debate fails to support the conserver hypothesis

According to this hypothesis, the Supreme Court selects a politically viable interpretation as close as possible to its own ideal point.

The change in interpretation that occurred in the 1980s seems to be in line with this hypothesis. In its first euthanasia case, the Supreme Court changed the prevailing interpretation of the Code of Criminal Law to another point. Furthermore, as shown, the new statutory interpretation deviates strongly from the position held by the Christian Democrats. So the interpretation the SC selected turns out to correspond with the prediction based on the policy advocate hypothesis.

Policy advocate hypothesis application

Based on this analysis, the conserver hypothesis, which assumes that courts do not have substantive policy preferences and take the current statutory provisions as the starting point for their statutory interpretation, has not been supported by the outcome found for the euthanasia debate in the Netherlands.

The SC did change the statutory interpretation, and this interpretation was not proximate to the policy position of the CD, which coincides with the politically viable interpretation closest to the status quo. The outcome of the debate corresponds with the policy advocate hypothesis.

Differences in opinion between the political parties in a governing coalition allow the courts to select new statutory interpretations that cannot be changed by the legislature. Points that have this characteristic are found in the set of politically viable interpretations.

Conclusions

The extent to which the policy positions of the political parties change, and the frequency with which new cases are brought to the courts, constitute two additional conditions for the model’s successful application:

(1) If political parties have relatively stable preferences, and the judiciary is regularly confronted with new cases on a specific topic, which it can use to present new statutory interpretations, jurisprudence may develop permanently without legislative intervention;

(2) If party preferences change rapidly or if the frequency of cases that are considered is relatively low, courts will not always be able to give a new interpretation before new legislation has been initiated. Some elaboration of jurisprudence will be alternated with new legislation.

The analysis in this article shows that the courts may play an important role in the policy-making process. By interpreting

statutes, the courts are able to shift a statutory policy to a point that cannot be changed by the legislature.

Conclusions