Lands of settled government: Poland and what really matters for the rule of law

The Polish Government’s ongoing quarrel with the European Commission over changes to the Polish judicial system has attracted widespread attention and condemnation of the ruling Law and Justice Party’s (PiS) actions. Across Europe, the public is increasingly being prompted by media outlets to expect an imminent slide into autocracy in Poland as a result of the government exercising greater control over the appointment of judges. Whilst this is undoubtedly a cause for concern, it is worth remembering that we know comparatively little about how the nebulous concept of the “rule of law” is achieved and maintained in democratic societies; to start writing the eulogy for judicial independence in Poland now would not do justice to how complicated the situation there really is.

It has long been an axiom of political and economic discourse in the West that countries need the rule of law in order to thrive as societies. In such societies, fundamental human rights are upheld and the fruits of success are fairly and predictably distributed amongst the entire population. The enduring importance of this idea can be witnessed everywhere today. The European Union regards the consolidation of the rule of law and its spread across the continent as one of its central achievements. The authoritarian regimes of the planet are (unevenly) criticized and reviled for their failure to adhere to the same standards, while strengthening the rule of law is frequently presented as a condition for financial assistance to struggling countries by international institutions, as is happening now in the IMF’s lending programme to Ukraine.

Rule of law, or rule by law?

All of this makes the rule of law the holy grail of politicians and publics around the world. Yet despite unanimous approval on all sides for the idea of the “rule of law”, agreeing on what exactly it consists of is harder than you might think. For one thing, it is not enough that simply all of the laws of the land are scrupulously adhered to and consistently enforced; what if a government successfully passes and enforces a series of repressive laws that restrict some of the most fundamental rights of its citizens? Some academics have described such a phenomenon as rule by law rather than the rule of law. Indeed, if the rule of law means anything to us, this meaning is surely more normative than technical, and is bound up with the various rights and safeguards against tyranny which we believe that every citizen ought to possess: the right to assemble, the right to private property, the right to protest loudly and on media against the government, and so on. Even so, there is hardly one single, universally agreed upon conception of what kind of rights and obligations a rule of law society entails.

Weighing up the faults and merits of any particular legal system becomes even more complicated and ambiguous when the dispute revolves not around what rights citizens should enjoy, but more technocratic issues such as who should appoint judges and through what kind of process. Let’s be honest: most of the voting public (this writer included) would not claim to be an expert in this field. Yet in Central and Eastern Europe, questions surrounding the rule of law have come to our attention with particular urgency as a result of the Polish government’s two-year long quarrel with the European Commission over changes that PiS introduced to the country’s constitutional tribunal and judiciary in 2016 and 2017. The common line being held in Western media about these reforms is that they represent a grave threat to Polish democracy by increasing the government’s control over the country’s judicial system to an intolerable degree at both the national and local level. The temptation to simply take this view for granted, and share the concerns of the Polish opposition along with the numerous international legal experts who support it, is strong. It may, in fact, turn out to be justified. Yet this issue is not all as clear-cut as it might seem in most media outlets. Additionally, if we are being asked to be outraged and concerned, it’s best to be as certain as we possibly can of what is at stake.

Making changes

Now, it is undoubtedly true that the judicial reforms currently being fought over in Poland constitute a rather blatant attempt by PiS to shape the judicial system as much as possible to their own liking. The original draft of one of the 2017 laws allowed the Minister of Justice to hire and fire presidents of the common courts as he saw fit without any possibility of review or requirement to justify his decision. Further, the law lowering the retirement age for Supreme Court judges, which came into force in July of this year, cleared away 22 judges from the Supreme Court. The National Judicial Council, the body responsible for the selection of judges, has been reformed so that its members are elected not by their peers (as is customary in most other European countries) but by a 3/5ths majority in the Polish Parliament. However, amidst all the indignation, we should avoid apocalyptic predictions of a slide into outright autocracy and maintain as critical an idea as possible of exactly what kind of threat these actions could pose to the rule of law.

Who controls judiciary?

Firstly, it should be stressed that a degree of control over the judiciary by the executive is perfectly normal in many of the world’s strongest democracies. More interestingly, cross-country studies have suggested that there is in fact no firm correlation between the level of control enjoyed by governments over the process of appointing judges, the strength of the rule of law and the degree of corruption in any given country. That is, increased executive control over the nomination procedures for the judiciary per se is not a sure indicator of the decay of the rule of law and the decline of democracy. Different democracies have varying degrees of executive supervision over the process of selecting judges; in the US, for example, the President nominates judges for the Supreme Court, and the Senate decides whether or not to approve of his choices. Meanwhile, many post-communist democracies, such as Romania, have struggled to establish a properly functioning judiciary despite their judicial systems being structurally based on European models. We should not, therefore, automatically assume that because the Polish government is strengthening its control over the selection procedures of the judiciary, it is inevitably tilting towards autocracy. Judges can be independent and apply their own critical and dispassionate interpretation of the constitution, even if they owe their seat to a particular politician or political party.

The other important dimension of judicial reform in post-communist countries is the political and legal philosophy that underpins it. This is, in many ways, more critical to the rule of law than the technical details of any reform. Unfortunately, many Central and Eastern European countries are still struggling to come to terms with a poisonous judicial legacy from the communist period; the courts used to be largely regarded as a subordinate arm of the ruling party tasked with enforcing its will, and judges who dissented were unable to overturn the government’s decisions. As a result, levels of public trust in the judiciary in countries like Poland remain very low, and political parties such as PiS have seized on this as a justification for reform of the courts in order to extirpate the last remnants of the former communist regime.

The example of Hungary

There is a danger, however, that in seeking to achieve this the authorities in Poland and elsewhere will end up reverting to a position vis-à-vis the judiciary that is not so different from their communist forebears. In recent years, there have been worrying flashes of this phenomenon, especially in Hungary. From 2015 to 2016, for example, the post of chief justice of the Hungarian Constitutional court was held by Barnabás Lenkovics, a judge who, in describing his legal philosophy, emphasized that in times of political and economic uncertainty the constitutional court should not go too far in obstructing the work of government. Such a conception of the role of judges in a democratic society, were it to prevail among the ranks of any country’s judiciary, would arguably be even more harmful to the rule of law than a government with a strong hold over nominations to judicial posts. Commentators are right to warn of the hostility towards an independent judiciary harboured by the Prime Minister of Hungary, Victor Orbán, who seems to regard recalcitrance from the courts as an underhanded personal insult. Yet there is evidence to suggest that the Hungarian courts are still capable of defying the government on important issues when it has breached the constitution, and that judicial independence in Hungary is proving quite resistant even after the government’s efforts to bring it under administrative control. Shortly before the 2018 parliamentary elections, for instance, the Hungarian Supreme Court ruled against the government in a case of absentee voting that cost the ruling Fidesz party votes in parliament and led the Prime Minister to complain of the “judicial state”.

The future

The judicial reforms being undertaken by the Polish Government, and indeed the threats to judicial independence in Hungary, are undoubtedly a cause for concern. Yet we should not be misled into believing that it is the structure of national judicial councils and the formal level of control exercised over the judiciary by parliaments that determine whether a society is headed towards the rule of law or autocracy. What exactly produces a strong and independent judiciary willing to hold the government accountable is still a bit of a mystery to most academics and politicians. What is clear is that it matters greatly what kind of vision judges have of the requirements of their role when they take up their post – whether they see themselves as a tool or a check on government  – and whether the public approves of this vision. We can only wait and see what PiS’s new judges will have in store for us. Like Thomas Becket, who took the role of Archbishop of Canterbury more seriously than his king could have imagined, they might surprise us.