AIJA Half-Year Conference Interview: Upholding judicial independence

APRIL 26, 2018

The independence of the judiciary will be one of the topics discussed at the Human Rights Session hosted during the AIJA Half-Year Conference on 24 May, in Warsaw.

To find out more, we continue our series of interviews with Przemysław Tacik, Assistant Professor at the Institute of European Studies, Jagiellonian University in Kraków, and strong promoter of Human Rights in various dedicated projects.

To see the full programme and register, visit the dedicated event web page.

Q1: What are the challenges to the independence of the judiciary in today’s world? And why is judicial independence important?

Judicial independence remains a keystone of liberal democracy. The existence of objective and impartial courts guarantees civil rights and liberties which otherwise may be easily infringed by the executive or the legislative. Moreover, the public recognition and authority of independent courts promote equality, the Rule of Law and legal certainty. Without the independence of the judiciary, (1) rulings in criminal cases turn into a public vendetta, often of a political character; (2) rulings in civil cases will not be respected by the losing party and will be treated with suspicion of corruption or extra-judicial motives; (3) rulings in administrative matters will not be based on equality of arms between the administration and the citizen.

The independence of the judiciary is enshrined in most national constitutions and in human rights protection acts of international law: Art. 10 Universal Declaration of Human Rights, Art. 14 (1) International Covenant on Civil and Political Rights and Art. 6 (1) European Convention on Human Rights. It is also well-embedded in the EU law and explicitly guaranteed by Art. 47 (2) Charter of Fundamental Rights of the EU.

In the transforming public sphere of the early 21st century, independent courts remain one of the few stable points of reference. To quote Ronald Dworkin, they are assigned the task of “the public use of reason”. In times when authorities collapse, and the public discourse is getting dominated by persuasive, but shallow arguments, the courts may have the chance to defend the culture of the argument and reasoning. Independence of the judiciary involves a selection of candidates for judges who are highly qualified and able to conduct in-depth analyses of the case. The stability of their positions guarantees broad perspective and “long breath” of arguments. Without proper independence of the judiciary, the system of law is more prone to incoherence, narrow positivism and abstraction from democratic values.

It is, however, one of the reasons for which the judiciary often comes under attack from anti-liberal or, to use a vague, but perhaps indispensable term, “populist” movements. As recently reminded by Jan-Werner Müller in his study What Is Populism?, these movements draw their political force from a sharp distinction between “the elites” and “the people”. Much as this distinction is fuelled by economic discrepancies, it is also projected onto state apparatuses. In this perspective, the independent judiciary is by definition a seat of “elites”. Preservation of independence against populist (un)reason and adequate response to justified criticism are two main challenges that the contemporary judiciary must face.

Q2: In your view, how can countries increase or preserve the true independence of the judiciary?

Firstly, the independence of the judiciary depends on institutional guarantees that have become a democratic standard, well-embedded in human rights protection acts of international law. In this regard, their maintenance is a necessary condition of independent judiciary.

Nevertheless, apart from these institutional guarantees the true independence of the judiciary requires an appropriate legal culture, which cannot be safeguarded by purely formal means. This culture includes authority of courts and their rulings, as well as perception of the judiciary as vital part of the democratic society. Naturally, a major part of responsibility for developing such a culture lies with courts themselves. Only through issuing well-justified and impartial rulings can they inculcate respect for the independence of the judiciary.

The independence of the judiciary is not autotelic. It is a means for safeguarding civil rights and liberties, as well as administering justice. Judges need to bear in mind that the independence of the judiciary may be effectively defended and developed only if it has observable effects for the society. Therefore, it might be argued that especially in the times when the independence is challenged, courts must be vigilant to consider the social impact of their rulings.

Q3: What are the main trends in the judiciary across Europe vs. globally?

Naturally, given the current complexity of the globalised world and diversity of legal systems it is hard to outline general trends in this area. There are countries with authoritarian regimes, where the judiciary faces completely different challenges from the one in developed democracies. Nevertheless, it could be surmised, although with great circumspection, that the judiciary in all parts of the world face two fundamental problems. The first is the increase in the complexity of legal systems. Modern law is characterised not only by a fast growth of the number of norms that are in force, but also by a growth of the number of sources they flow from. In the globalised world the myth of a positivist system of law which would be coherent, reasonably extensive and could assure decidability of each case, has been superseded by the postmodern and pluralist vision of an excessive, overdetermined and unkempt field of competing norms. Courts can no longer be just “mouth of a law”, as in Montesquieu’s vision. They need to plough through massive normative material, consider various sources of norms and elaborate interpretations that will establish relations between them. Consequently, the workload of courts seems to increase.

Secondly, we can refer to the defence of the independence of the judiciary against attempts of the executive to control it. Naturally, concrete realisations of this trend differ in various countries. It seems, however, that throughout the world liberal democracies are on the wane, whereas authoritarian trends gain ground.

The situation in Europe does not differ substantially from these trends. The complexity of legal systems is even greater in Europe due to advanced integration. European courts tackle legal pluralism on a daily basis, because they have to combine norms of national origin, the EU law, general international law and regional instruments of international law, such as the European Convention on Human Rights. As to the defence of the independence of the judiciary, the problem is particularly acute in the Eastern part of Europe, especially Poland and Hungary. Nevertheless, Western Europe is not free from it: the anti-systemic culture which arose in the UK in the wake of the Brexit is responsible for a widely popular contest of the judiciary.

Q4: What is the situation in Poland and how can the country overcome the current assault on the judiciary?

The general prospects for the independence of the judiciary in Poland are currently dim. Since 2015, Polish judiciary is under constant pressure from the executive, which undermines its independence, effectiveness and authority.

In the years 2015-2016, the current ruling majority undertook some unconstitutional reforms whose clear aim was to introduce its nominees to the Constitutional Court and gain control over it. Three of the new nominees were unconstitutionally elected for the places which had been already occupied by judges to whom the president of Poland refused swearing-in ceremony and thus precluded them from taking office, even though they had been elected lawfully by the lower chamber of Polish Parliament. Moreover, the current president of the Constitutional Court was elected in a procedure which was questionable from a legal point of view. The current vice-president of the Court was revealed to be a former member of secret services, which he concealed during hearings before the Parliament commission. The law on the Constitutional Court was amended a few times within this short period to facilitate the process of gaining control over it. As a result, the Court was dominated by judges who expressed explicit support for the ruling majority. Before that happened, the executive had usurped a de facto power to assess validity of the Constitutional Court rulings, because it refused to publish in the official journal those rulings which found reforms of the Constitutional Court Law unconstitutional. These rulings remained unpublished and the Constitutional Court sits currently in unconstitutional formations.

In 2017, the ruling majority undertook far-ranging attempts to gain control over the general judiciary. After massive social protests in July 2017 and the subsequent veto of the president of the Republic, a few major reforms were finally adopted in December 2017.

In 2018, the ruling majority pursues with the work on amendments of the Supreme Court Law, with an explicit view to have sway over the Supreme Court after some of its current judges, including the First President, will reach the mandatory retirement age. The new project of the Law envisages that after the seat of the First President is vacant, the President of the Republic will be entitled to nominate an acting First President who is not stipulated by the Constitution. It will allow the ruling majority to directly influence the person in charge of the Supreme Court.

As a result, a part of the Polish legal system functions currently in the state of exception. Clearly, unconstitutional laws are still in force because either the Constitutional Court’s rulings which declared them unconstitutional were not published, or because the new Constitutional Court – sitting in unconstitutional formations – does not declare them unconstitutional. Moreover, the Constitutional Court in its new composition ignores the unconstitutionality of the laws which led to its formation. In this respect, Poland significantly differs from Hungary, where the undermining of the position of the judiciary was generally carried out with the use of constitutional amendments. In Poland, the Constitution was not amended, but effectively rendered inoperative. The current assault on the judiciary can hardly be overcome, because in most respects it has either already happened or will happen within a few months. The whole process of overtaking the Supreme Court will have been probably finished by July, when new judges will be appointed and the new chambers will become operative. It cannot be stopped by the Constitutional Court, because it is clearly dependent on the ruling majority. Most of the amendments that will undermine the independence of the judiciary are already in force; it is only a matter of time before the process of appointing new judges is complete. It remains an open question whether and how this process could be reversed in the future. Given the entanglement of legal matters concerning the Constitutional Court and the Supreme Court, it will probably not be enough to simply apply the Constitution to declare some laws unconstitutional and return to the status quo ante. The continuing functioning of unconstitutional formations of the Constitutional Court has created a legal chaos, in which separating valid from invalid acts will be extremely difficult. Moreover, unconstitutional acts will have their consequences which may be irreversible. What might be needed is adopting a new constitution which will re-establish the Constitutional Court and the Supreme Court. Nevertheless, the process of subjugating general courts to the executive will be hardly reversible – not only because new political nominees will be already appointed as judges, but because the chilling effect on the independence of judges will have long-lasting effects on the legal culture of the Polish judiciary.