A few months back I wrote the article, Democratic backsliding: What exactly does it meant at this point? I am going to have a boring rant! I promised it would be continued. Now it shall be.
A lot has happened and a lot hasn’t happened since then. I had unused material back then which I was planning to use for the sequel article. I will leave that in its original form and start this article with it. That way we can see the amazing evolution of the insane legal uncertainty that dominated the EU a few months ago into the same insanity now compounded by polarisation and controversy regarding Ukraine and Russia today.
Nostalgia for 2021 insanity
Does the Netherlands have a constitution? Its caretaker government doesn’t seem to know (or care). Rutte appointed 3 new members to his caretaker cabinet. Never before in the history of the Netherlands have this many new members been appointed to a caretaker government. The real problem however, is that they kept their seats in parliament in violation of the Dutch constitution. Various experts including the Montesquieu Institute quickly spoke out against this.
A violation of the constitution by a temporary government may seem odd, but what is even stranger is that the government headed by Mark Rutte had resigned last January in response to a massive corruption scandal the so called ‘toeslagenaffaire’ (benefits scandal), during which the government covered up how the Tax and Customs Administration falsely accused more than 25.000 parents of tax fraud, ruining entire families, and intimidated members of parliament who asked critical question.
This turned out to be only the tip of the iceberg. Some others anti-democratic or anti-constitutional scandals include:
•The government unconstitutionally withheld information from parliament during the benefits scandal
•Vice-premier Huge de Jonge recently decided that he could ignore a court ruling
• Minister Grapperhaus violated the corona restrictions he was in charge of enforcing
• He refused to pay back unjust fines levied on citizens who had violated the restrictions
• D66 leader Kaag involved her ministry in influencing a documentary about her shown on public media shorty before the election. Another minister was lied to
You might expect the European Union or the Venice Commission to speak out against these numerous attacks on the constitution, rule of law and impartial media, but then you’d be forgetting that Rutte is strongly pro-EU, as are his coalition partners D66 and CDA.
In fact, VVD and D66 have been at the forefront attacking Hungary for violating the rule of law (even though Orbáns coalition won more votes than both these parties combined 3 times in a row).
Now to be clear, multiple changes of the constitutional system by Orbán, specifically more recent ones, have indeed weakened constitutionalism in that country; the recent 2 amendments to the constitution to make the appointment of Varga as Chief Justice possible are perfect examples.
Others have been at least questionable; expanding the numbers of judges on the constitutional court from 11 to 15 as a part of the new constitution (enabling a form court packing through constitutional reform but that was a one-time thing) and the abolishment of the consensus model for the nomination of justices to the constitutional court by use of a committee that had one member of each party in parliament.
Yet these changes only removed check and balances that were unusually strong in Hungary anyway. Hungary’s Constitutional Court was unusual in that it meant the majority of parties in parliament had to support a nomination who then also needed approval by 2/3 of all its members, which ensured a very balanced court with each party having a judge to its liking. Such consensus democracy is. Orbán abolishing off it is a shame but doesn’t make Hungary different from most liberal democracies. Most constitutions don’t have the high requirements for a Chief Justice that Hungary’s did either. Similarly, Orbán made it that not just any ordinary citizens can appeal tot he Constitutional Court directly but that was another rarity few countries have.
Most of Orbán’s worst constitutional reforms just made the Hungarian system less exceptional and more like an ordinarily good constitutional state. Which is disappointing, but Hungary can’t be judged by its own extra high standard, just a general one. Orbán’s consistent 2/3 majority (now for the fourth time) has eroded quite a few safeguards though, which is why I wish he’d lose that 2/3 majority already.
But one of the really got things he did was expand constitutional court judges from 9 to 12 years and making the terms non-renewable, thereby greatly strengthening the independence of the court.
Hungary still has its Constitutional Court that can rule laws and executive decrees unconstitutional of which the members are still appointed by a two thirds majority in parliament, meaning it is still better than the nomination system Poland has had all throughout its democratic existence (including under Tusk). The Dutch constitution still forbids any form of constitutional review of law and the VVD wishes to keep it this way.
Why is it acceptable for certain member states of the EU to continue to prohibit constitutional review? I have previously talked about the inconsistent standard regarding the appointment of judges (this double standard also favours the Netherlands where only half of the members of the judicial councils are judges and all government appointed) but a ban on constitutional review is another level of extreme nowadays generally only seen in the worst dictatorships like North Korea and Cuba.
Readers are free to interpret this whole rant as some kind of paleoconservative or reactionary defense of Orbán, but before you do this, please consider the possibility that it is an expression of frustration about anti-constitutionalism and illiberalism in the older Western democracies being ignored by the left (since the countries lean much more left) and the right (who care more about the leftism than the anti-constitutionalism).
Why don’t right-wing parties demand Sweden and Finland introduce proper constitutional review or exit the EU (hey that rhymes)? They asked it from the Netherlands after the horrific benefits scandals, but no deadlines or threat of sanctions. Maybe they could ensure that Norway’s Barnevernet stops stealing kids from their parents. Until every Western country is like Austria, this talk of soft authoritarianism in Eastern Europe is just a bit silly, especially when the opposition plans to purge the judiciary and reset the constitution in its favour “to restore the rule of law”.
Well… here we are now
Well now Rutte’s caretaker government is officially the new government and their governmental agreement has promised they’re looking into constitutional review. During the outgoing days of Rutte III Minister De Jonge withheld a critical advice by the judicial council from parliament so he could have them vote on a discriminatory law without even knowing about the judicial council’s misgivings.
But Hungary is under fire now because the people voted for the wrong party, I guess. At the same time, Poland is being rehabilitated fast though. Its right-wing government got to do an elaborate I told you so dance. They’ve been warning for Russia for so long now. They’re enjoying an immense rallying to the flag momentum as the opposition has become paralysed, while the European Commission appears willing to release corona recovery fund to Poland if it abolishes the disciplinary chamber of the supreme court, the so-called muzzle law and reinstates judges who were suspended under this system.
This has had activist groups upset. They want something far more extreme. They still want to undo all the judicial reforms enacted by Law and Justice since 2017.
Abolishing the overly powerful and concentrated disciplinary chamber is a good thing. Judges being able to handle cases without fear of political punishment for the content of their rulings is also extremely important. But the demands by the lobby groups surrounding the ‘rule of law in Poland’ team are far more extreme and based on a very selective narrative.
The (European sense) Liberal victim narrative since 2015.
I have previously commented on the Venice Commission’s double standard regarding judicial appointments by the government or by judges themselves for ‘old’ and ‘new’ democracies.
But the Venice Commission did acknowledge that the Polish constitution doesn’t require the 15 judges who serve on the National Council of the Judiciary to be elected by sitting judges, that the constitution specifically leaves this matter to be settled through regular law. But liberal lawyers in Poland have tried to argue otherwise and that the constitution implies co-optation (while specifically not describing it).
The Constitutional Tribunal rejected this creative interpretation of the constitution however, so the old judges on the Supreme Court had to turn towards the CJEU. The CJEU wasn’t prepared to rule on such internal reforms in a member state directly, so they left it up to the judges themselves to interpret. This has resulted in further internal judicial chaos but an unclear stance of the EU towards Warsaw regarding the neo-judges.
While the CJEU was smart enough not to escalate further on these points (disappointing the left opposition) the European Court of Human Rights decided to do exactly this and fully embraced the one-sided Civic Platform narrative:
‘The constitutional Tribunal contains double judges and as such its interpretation of the constitution can now be ignored in favour of the old judicial elite.
Nominations by the ‘neo-national council of the judiciary’ aren’t valid because the judge members were politically appointed and this is contrary to the Polish constitution (according the old judges usurping the Constitutional Tribunal’s role) besides such political appointments aren’t allowed for Poland because it is a new democracy and doesn’t have rights the same as Germany.’
In all honesty, this double standard is even extremely offensive towards the victims of biased pro-government judiciaries in the so-called old democracies.
More than a thousand children removed from their parents, some who were abused and even raped (rape victim tried to kill herself and was locked up in an asylum and put in isolation) others killed themselves.
Judges admitted to failing them, admitted to deferring to the state. But an apology after the fact doesn’t undo the damage of years of blind subservience to corruption. This was systematic. Judges who didn’t blindly support the authorities in their illegal actions were a small exception. So, let’s not pretend as though the old democracies have strong and independent judiciaries free from political influence.
Ironically the Netherlands took a lead in lecturing. Specifically, prime minister Mark Rutte, the one who had a leading role in silencing critical members of parliament and perpetuating the corruption.
Finally, the idea that new democracies (former communist states) should have judges appoint their own successors, has tended to result in judicial co-optation in countries where judges were a part of the communist regime. This has been one of the main propaganda angles by Poland’s right-wing government to justify its reforms.
That and the various problems that made Polish courts rather disliked amongst the people before Law and Justice came to power that old judges have failed to really acknowledge, such as how slow civil cases tended to be.
But regardless, Civic Platform, its old judge allies and NGO allies have been trying to bolster their narrative in favour of the old judicial guard in order to justify completely ignore the Constitutional Tribunal’s interpretation of the constitution and justify removing all the ‘neo-judges’ from the Supreme Court to restore it to its original pure liberal judge (with a succession line back to the communist era) state.
The ECHR even set a new precedent specifically outlining that constitutional courts and tribunals are included amongst the courts established by law in certain human rights treaties, to even be able to justify it attacks on Poland’s Constitutional Tribunal. Its exceptionally high proportion of Soros-organisation appointed members make its use of selective arguments against Poland, in cases that relate to disputes in which Soros has been an important opponent of the government, appear even more biased.
Very recently however the CJEU accept a submission by a neo-judge serving on one of the old chambers of the Supreme Court as admissible (despite objections by the ombudsman) asserting a presumption of validity regarding the neo-judges. Whether this was influenced by the Warsaw-Brussels thaw over Ukraine… of course.
As such the CJEU has failed to endorse this narrative and even contradicted the ECHR. This has made the position easier for the government and the goals of the liberals less realistic. It seems like their monopoly on the judiciary can no longer be restored. Another thing which these people would like to forget is: even Germany and Italy regularly ignore ECHR rulings with support of the national judiciaries.
The future of Poland: the coming elections
But it PiS wins for a third time in 2023 these will all likely become moot issues. If PiS has a majority in the Sejm for the 2023-2027 period, the terms of the 3 liberal judges who were nominated in 2015 but not sworn in by President Duda will expire during that period, and the so called double judges will also see their terms end and be replaced with undisputed right-wing judges. As such PiS’ dominance over the constitutional tribunal will become legally uncontroversial and without a doubt in accordance with the Polish constitution. A majority of right-wing PiS judges would continue to serve even throughout the 2027-2031 period and they will almost certainly hold all judgements made by the tribunal with the involvement of double judges to have been valid. This would likely make them retroactively valid even to those who disputed the legitimacy of the double judges.
The undisputed constitutional tribunal will once again find the law changes regarding the appointment of judge-members of the National Council of the Judiciary from 2017 to be constitutional and all the nominations made by it to be valid. They will likely rule those judges once appointed by the President are unremoveable and it will be hard for old judges to ignore such a judgement.
Moreover, by 2027 so called neo-judges will constitute at least 40 % if not around 50 % of all the regular judges, and are majority even in the old chambers of the Supreme Court, possibly even a supermajority, and the presidents of the criminal and labour chambers will likely even be ‘neo-judges’ as well, and even a new first president of the Supreme Court will have been nominated by a 6 year term.
This assumes the PiS candidate will win the presidency again in 2025, in which case the opposition probably won’t even be able to push through any judicial reform bills till at least 2030 (even if they win a majority in 2027) since overriding a presidential veto requires a 60 % majority.
The prospect of Ziobro’s judicial regime continuing in Poland does scare me but the solution is not a complete reversal of all the judicial reforms and a return to the situation of 2015.
I would hope that a proper review by the Supreme Administrative Court of the nominations by the National Council of the Judiciary could be ensured when it has close to a balance between old and new judges. Maybe instead of fighting over reversing the reforms they could ensure a fair nomination process under the new system.
Or better yet maybe the constitution could be amended through a joint effort from both Law and Justice and the opposition. If the new judges make up and old judges make up roughly equal portions of the judiciary, a new system could ensure more consensus by constitutionally defining how judicial self-government and appointment of the new judges by previous judges (including neo-judges) will work.
If any form of judicial co-optation remains suspect to the right in Poland due to perceived links to the communist past, I hope they’ll at least institute an absolute 60 % requirement for nominations to the National Council of the Judiciary similar to Spain.
Similarly, I hope that the EU will develop consistent rule of law standards, but I’ll elaborate even further on that at the end.
Inconsistency: The death of any concept
I will have to keep hammering on the issue of consistency. Only consistent principles are objectives. Flexible definitions tend to be weaponised against enemies yet softened for allies. This appears to be why the EU let’s countries like the Netherlands or Spain get away with corruption or attacks on civil liberties.
‘Rule of law in Poland’ allies supported Hungary’s independent prosecution office (whose head has to be approved by a 2/3 majority in parliament) be instead placed directly under the (political) influence under the ministry of justice, in case the opposition won, so that an opposition minister could use it against Fidesz. If it’s fine for the ministry of justice to politically influence the opposition in Hungary, then why the push for a completely independent prosecution office in Poland? Why the push for an unconstitutional referendum to bring about a regime change in Hungary?
Rule of law seems to mean a return to the 2015 situation for Poland (when Civic Platform was at the height of its power) and to 2010 for Hungary (before the socialists were ousted) but then with greater EU influence and the semi-conservative policies of that era replaced with 2022 EU values.
Rule of law means undoing election results that were too right-wing.
It’s really a shame. I value the rule of law and constitutionalism a lot. The subversion of constitutionalism angers me and some of the actions by Fidesz and PiS have bothered me, especially those by the latter. But the EU, Venice Commission and even many judges have cried wolf too much and called any judicial reform by national conservatives an authoritarian assault on the rule of law.
This allows populists to claim with some truth that rule of law is just a Europeanist word meant to oppress popular nationalist governments.
A constructive attitude for the future
Simple solution suggestions for the EU and pro-European parties and groups within Poland as well as the ECHR:
1. End the ridiculous (and obviously outdated) notion that new democracies cannot be trusted as much as old democracies regarding their judiciaries. Don’t let Germany lecture Poland on a political appointment system when it has one itself.
2. Start demanding proper constitutionalism and democracy everywhere.
3. Stop pretending that the current Constitutional Tribunal of Poland is invalid and accept its ruling within the previously established norms thereby preventing an all or nothing power struggle.
4. Stop threatening to purge the judiciary of all the judges by the new national council of the judiciary thereby preventing an all or nothing power struggle.
5. Stop tying rule of law discussion to obvious partisan political discussions regarding sexual morality and abortion.
6. Just stop being power hungry, partisan hypocrites who are selective at best with the truth!!!!
7. I am going to go for just one extra point here, stop misusing terms like the rule of law to attack reforms when pushed by Eurosceptic populists, all you’re doing is discrediting these terms and concepts and increasing support for the most extreme authoritarian tendencies amongst those who dislike hypocrisy by certain pro-EU parties. It’s time to stop!
Let’s make constitutionalism and rule of law truly mean something again.