Courts, Cabinet and Coalition Parties: The Politics of Euthanasia in a Parliamentary Setting

1. Courts, Cabinet and Coalition Parties: The Politics of Euthanasia in a Parliamentary Setting BERNARD STEUNENBERG

2. Outline Historical background: euthanasia debate in the Netherland Main features of parliamentary system in the Netherlands Model of judicial-legislative interaction according to PPT Analysis of decision-making process on euthanasia in the NetherlandsIn view of two alternative PPT hypothesis Main conclusions: the role of the courts in the euthanasia debate

3. Historical background (1) 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

4. Historicalbackground (3) LEGISLATURE RECONCILED ITSELF TO THE INTERPRETATION OF THE COURTS 1993: after 15 years of political debate a new bill was accepted which conferred on theminister of justice and the minister of welfare, health and cultural affairs thepower 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 aimsto improve the prosecution’s ability to assess those physicians who havepracticed euthanasia

5. Research questions 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?

6. Parliamentary system in the Netherlands

7. Judicial-legislative interaction. Main framework. (1) Three types of players are distinguished in the model: (1) the coalition parties represented inparliament; (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. Thisposition is the player’s ideal point. The further away an alternativeis 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

8. Judicial-legislative interaction. Main framework. (2) New SQ decided by legislators Respond to court’s interpretation by a new legislation Accept Parliament Reject Court’s interpretation Give new interpretation of existing law Cabinet Accept court’s interpretation Accept Propose new legislation New SQ decided by legislators Court Parliament Cabinet Keep the existing SQ Reject ExistingSQ Keep the existing SQ

9. Politically viable interpretations Set of politically feasible bills SQ A 2SQ - A B 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

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

11. Different equilibrium outcomes Politically viable int-s Leftmost Rightmost Policy advocate ideal point SQ (=Conserver Ideal point) (1) When the status quo and the courts’ ideal point are found outside the setof politically viable interpretations and at different sides of the governing coalition. Then, a court that behaves as a policy advocate will select thepolicy position of the rightmost coalition party as the equilibriuminterpretation, while a conserver chooses the policy position of the leftmostcoalition party, or vice versa. (2) When the status quo is found in the set of viable interpretations, while theideal point of a policy advocate is not equivalent to the status quo. Aconserver will not present a new statutory interpretation and adheres to thecurrent statute. A policy advocate, however, will come up with a newinterpretation that diverges from the current statute

12. The politics of euthanasia 1978: a majority in parliament supported a motion in which the cabinet wasasked 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

13. 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.

14. The politics of euthanasia (2) 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 aphysician has to report a case of euthanasia to the public prosecutor. 1993: The new bill is adopted by the parliament.

15. Party positions and cabinet government

16. Policy positions of political parties on euthanasia (1990 survey) Controlled 60% of votes

17. Why lifting of euthanasia ban was impossible? Parliament was not able to approve a liberal statutoryregulation on euthanasia because of the domination of the CDA in various governing coalitions in the 1980s. CDA were ableto prevent any initiative from becoming law Liberal party and the Labour party conformed withtheir coalition partner and did not support any opposition initiative, otherwise,the governing coalition would fall.

18. Cabinet government and coalition parties, 1977-1994 CD dominated in government coalition

19. What are the preferences of the Supreme Court (SC)? Pro euthanasia Anti euthanasia Liberals Labour party SC CDA 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 theCDA, the Labour party, and the Liberals, the preference of theSC is expected to be found between the most extreme policypositions 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

20. Where is the initial SQ? Sets of politically viable interpretations

21. Conserver hypothesis application This outcome of the euthanasia debate fails to support the conserver hypothesis 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.

22. Policy advocate hypothesis application According tothis 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 1980sseems to be in line with this hypothesis. In its first euthanasia case, the SupremeCourt changed the prevailing interpretation of the Code of Criminal Law toanother point. Furthermore, as shown, the new statutory interpretation deviatesstrongly from the position held by the Christian Democrats. So the interpretationthe SC selected turns out to correspond with the prediction basedon the policy advocate hypothesis.

23. Conclusions Based on this analysis, the conserver hypothesis, which assumes that courts donot have substantive policy preferences and take the current statutory provisionsas the starting point for their statutory interpretation, has not been supported bythe outcome found for the euthanasia debate in the Netherlands. The SC did change the statutory interpretation, and this interpretation was notproximate to the policy position of the CD, which coincideswith the politically viable interpretation closest to the status quo. The outcomeof 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.

24. 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: If political partieshave relatively stable preferences, and the judiciary is regularly confronted withnew cases on a specific topic, which it can use to present new statutoryinterpretations, jurisprudence may develop permanently without legislativeintervention; If party preferences change rapidly or if the frequency ofcases that are considered is relatively low, courts will not always be able to givea new interpretation before new legislation has been initiated. Some elaborationof jurisprudence will be alternated with new legislation. The analysis in this article shows that the courts may play an important rolein the policy-making process. By interpreting statutes, the courts are able to shifta statutory policy to a point that cannot be changed by the legislature.