We hear a lot of “democracy”, “the rule of law”, “freedom” and civil liberties being undermined. No, not in Africa, or the Middle East or Myanmar, but in Western Europe (according to the right) or Eastern Europe (according to the left). These involve 2 distinct narratives.
The left has argued for many years now that countries like Poland and Hungary have been engaging in democratic backsliding under their Eurosceptic and nationalist governments and that the liberal opposition parties (former governing parties), some “NGO’s” such as Amnesty International and the Helsinki foundation are bravely fighting to defend the rule of law with the support of the democracy protecting European Union.
While the right has argued that the Polish government has enacted proper reforms to democratize the judiciary while the EU is illegitimately intervening to support an elitist judiciary that has links to communist era, while Hungary is hypocritically being bullied for opposing mass immigration, Soros and the LGBT agenda.
Here I am going to be an annoying little centrist (contrarian). The narrative pushed against these countries is simplistic, selective and partially false, but it is true that both regimes have engaged in some authoritarianism that I very much dislike… but I lean more towards agreeing that the attacks on the Eurosceptics were hypocritical and biased (at least for the first couple of years).
Shifting definitions, self-serving biases and the ad hoc development of rule of law principles
The problem really starts with the fact that rule of law, like liberty and democracy, is a word that most people agree sounds good, but is pretty difficult to give a clear and consistent definition of.
Even worse, according to certain institutions that attacked Poland for undermining the rule of law, it means something different for Poland than for Sweden, Germany or France. According to the Swedish constitution, judges are appointed by the government.
Why is it considered acceptable that judges are appointed by the government in Sweden but not by a judicial council appointed by parliament and the president in Poland?
The Venice Commission has a justification for this inconsistency. Direct appointed of judges by the government in old democracies would be acceptable since it would be restrained by legal culture and traditions.
The problem with this double standard (aside from the fact that it creates unequal rules for member states in a union) is that it evidently not true. The Venice Commission’s view was evidently biased in 2010 but the many scandals in the Netherlands that have come out since, along with multiple independent and credible claims of voter fraud by the ruling party in Sweden during the 2018 election , reveal this justification for a double standard to be pure fiction.
But this was apparent even in 2010. The appointment of judges to appeals courts in Sweden by the government is blatantly political. You don’t read this on anti-Socialist fringe sites but one Wikipedia which provides:
“To be appointed as an appellate judge, a judge without Governmental support must have the correct balance of good academic scores, solid research papers, several years of ‘notable’ litigating practice at both district and appellate courts, and voluntary service as providing legal aid as well as guest faculty providing lectures at Law Schools. Appellate Judges with Governmental support may have considerable less experience, some with as little as only one year of Court experience but with other experiences such as two decades as a personal secretary of a senior politician of the Governing party at the time of appointment.”
If this is acceptable for Sweden, then why not for Hungary or Poland?
This double standard has in fact enabled populist leaders in these new democracies to attack defense of the rule of law as a form of globalist hypocrisy, which is indeed how it is sometimes used. With there even being double standards for different governments, of young democracies depending on whether there supportive of the EU or against it (more on that later).
If democratic backsliding is supposed to mean that an Eastern European adopt a judicial system similar to Western democracies then it suggests that equal standards for EU-member states are wrong.
This double standard regarding the judiciaries of countries, and as such about the rule of law makes a mockery of the concept. A mere partisan buzzword. On the EU level it simply means don’t depart from the judicial status quo.
It is conservative in the worst way, trying to preserve the status quo (which favours the EU, pro-EU judges and pro-EU parties, the organisations claiming the Polish governments isn’t allowed to act on its unusually strong democratic mandate to give the country a judicial system similar to the one West Germany adopted in 1949.
The judicial council of the Netherlands published a paper that admits that federal judges are appointed by the President in Germany as in Poland (though in Germany a minister co-sign) and that they’re not even nominated by a judicial council but by a committee that consists half of members of the lower house of parliament and half of state ministers. The state ministers are actually considered effective checks and balances. Though they add the fact that appointments can be judicially appealed and that there is respect for the independence of judges. No source is provided for that claim but hat the ruling parties who have been appointing judges for decades respect their independence seems logical, they’re largely on the same page aren’t they?
Civic Platform’s failed power grab
In 2015, when pro-Eu Civic Platform lost the presidential and parliamentary elections, they attempted to replace as many conservative justices on the constitutional court as possible. They had already appointed 9 members of the 15 member court and wished to replace 5 of the 6 members who had been appointed before they came to power, even though these justices would all retire after the Civic Platform controlled parliament would have its last meeting and 2 after the new parliament was seated. This blatant power grab was prepared by the president and vice-president Platform had appointed to the court who helped draft this law. A minority of 5 justices mostly appointed by Civic Platform still ruled the attempt to replace the 2 judges who would retire after the new parliament was assembled unconstitutional. This detail is often overlooked. They made a quick apology for that and that was it. But the court ruled that the law change to allow Civic Platform to fill 3 vacancies that were to occur a couple of days before the new parliament met was constitutional (maybe, but smacking of a court packing spirit).
This would still give them 12 of the 15 judges including 3 for the next 9 years. The president didn’t swear them in however and the new Sejm simply annulled the resolutions and passed new elections resolutions. Resolutions by the Sejm are an internal matter that the constitution doesn’t allow the tribunal the authority to rule on. Civic Platform had gone against the custom that the new parliament would fill the vacancies and enacted a new law to achieve their aims. They were validated by the tribunal (mostly their appointees) and the nominations stuck on a technicality. But President Duda simply didn’t swear them in and the new parliament annulled the nominations (which weren’t a part of the tribunal and therefore did not enjoy immovability yet) and therefore bypassed the tribunal with their own technicality. The principle of discontinuation where the act of the previous Sejm becomes void if it’s not finished (including by being confirmed by the president) before the new Sejm starts working.
Civic Platform was never taken to task for its blatant (failed attempt) to pack the Constitutional Tribunal, even though it was what started the constitutional crisis in Poland. Instead Civic Platform has been able to play the hero with support from the CDU.
The controversy regarding the 3 new nominees was even used by much of the anti-PiS faction and recently ECHR to declare the tribunal’s decisions invalid, thereby worsening the crisis.
This stance on the tribunal being invalid has been perfectly contradicted by the new (opposition nominated and critical of the government) ombudsman Marcin Wiącek. He actually wrote a very balanced article regarding the crisis that was neither the ant-EU narrative proclaimed by the likes Farage nor the typical one-sided leftist narrative. Instead he noted something I spotted when first learning of the crisis, that loopholes in Poland’s constitution contributed to escalation by both sides and he provided constructive suggestions on how to improve the system. One of the few people truly focused on preserving the constitutional system and improving the rule of law without partisan bias.
The entire anti-PiS reasoning concerning the constitutional tribunal crisis rests on two ideas:
Changing the law and appointment status quo to ensure you control to overwhelming majority of a court is acceptable.
The Constitutional Tribunal has a very broad authority not even based directly on the constitution.
Neither of these principles were applied when PiS changed the law to create a different appointing mechanism for its national council of the judiciary or when the Constitutional Tribunal ruled against the Supreme Court and in favour of the government.
That was only the start of the escalation where the Pro-EU parties, the old judicial elite, the EU, pro-EU NGO’s and the CJEU started to attack basically every major social policy decision made by PiS as an attack on the rule of law.
To be continued…
- NMR skrek slagord i vallokal” (in Swedish). Aftonbladet. 9 September 2018. Retrieved 17 September 2018.
- Förtidsröstningen försenad – valsedlar saknas i många lokaler”. Sydsvenskan (in Swedish). Retrieved 10 September 2018.