How can a state under the rule of law be defined? Is there a set of minimum criteria for a state to be recognized as a state under the rule of law?
A state under the rule of law is one which complies and continuously seeks to uphold the following set of interconnected principles: Legality; legal certainty; prohibition of arbitrariness; independent and impartial courts; effective judicial review including respect for human rights and finally, equality before the law. These are the six fundamental principles at the core of the rule of law according to both the EU Commission and the Venice Commission, an advisory body of the Council of Europe. The latter has also produced a “rule of law checklist” which offers a well-informed and helpful overview of how these minimum criteria should be understood and compliance with them assessed.
Similarly to the rule of law, the notion of democracy may be understood as requiring compliance with a set of minimum and interconnected elements. To borrow the list of essential elements adopted by the UN Assembly General, democracy requires not only respect for the rule of law as understood above but also respect for the separation of powers; governmental/state/institutional accountability and transparency; a pluralistic system of political parties and organisations; free, independent and pluralistic media as well as well respect for human rights, and in particular, freedom of association and expression, the right to vote and to be elected at genuine periodic free elections by universal and equal suffrage and by secret ballot.
There is not always a clear threshold at which point a state ceases to be a democratic one, and become instead an autocracy or a dictatorship. We are for instance currently witnessing a refinement of the process whereby a previously democratic regime progressively stops being one. Instead of an obvious tipping point such as a coup d’Etat, the new autocrats tend instead to run for elections and once in a position to govern, they slowly but surely capture, hollow out or dismantle existing checks and balances. Their primary aim is to consolidate power and in particular reshape the electoral framework and capture the media before the next elections. You then end up with ostensibly free but entirely unfair elections which the ruling party would struggle to lose. And should the worst happen from the point of view of this new breed of autocrats, they can always rely on a friendly judiciary, which would have been previously strategically purged, to cancel or minimise inconvenient electoral results.
To borrow the title of a recent book, the new autocrats have learned how to steal elections in broad daylight. In most cases, there is no longer a one-off unconstitutional moment, an obvious tipping point when democratic regime may cease to be one. What we are seeing at work instead is the “boiling frog” strategy. In other words, would-be autocrats tend to implement in a progressive but not always visible way an interconnected set of formal but also informal measures which aim to undermine democracy and the rule of law on a step-by-step basis without the people always perceiving the danger. When people eventually do so realise, it is too late. Democracy and the rule of law are dead.
What about Poland today, in July 2018? As a lawyer, perfectly aware of the changes that are taking place in its legal system, can you say that Poland is a State governed by the rule of law? Is it a democracy?
The short answer is that Poland is no longer a state governed by the rule of law. I am for instance in full agreement with the diagnosis offered by the European Commission and many other international respected bodies. In essence, Poland’s so-called “judicial reforms” are not reforms at all but rather a set of deliberate systemic attacks on the independence of the Polish judiciary. Their cumulative impact means that Poland’s ruling party is now in a position to violate the Polish Constitution at will without consequence. It has done so on multiple occasions by adopting laws which, to borrow from the analysis of the European Commission, has allowed it “to politically interfere in the composition, powers, administration and functioning of the judicial branch”. Poland will also cease to be a genuine democracy once the ruling party, as seems likely, introduces “electoral reforms” so as to essentially ensure that it will not lose power – no matter what.
All these changes (reforms) in Poland’s judicial system are being introduced by a government and a majority elected in an uncontested free election. Isn’t it enough to justify their reforms?
No and these are not “reforms”. The changes adopted and being implemented by Poland’s ruling party should be described instead as aset of coordinated attacks on Poland’s judiciary. The Venice Commission in this context spoke of changes which have a striking resemblance with the institutions which existed in the Soviet Union and its satellites. The irony, of course, is that these changes are officially motivated in part by a goal to “de-communise” Polish courts.
Genuine democracy demands much more than merely holding regular elections. Majority rule should also not be confused with tyranny of the majority especially when the “majority” view is in fact expressed not to say manufactured by the ruling party without the citizens having any say in practice. Having a legislative majority is also no licence to violate one’s constitution and to undertake what the First President of the Supreme Court of Poland described as a coup d’Etat against the judiciary. It is not surprising to see the “will of the people” claim being used, however. This is what autocrats and despots do when they are seeking to establish electoral autocracies and bully critics into submission while they do so. Violating one’s constitution and acting in defiance of one’s international obligations are furthermore not compatible with EU membership.
What could be concrete consequences of Poland’s current judicial situation for ordinary people’s lives in the country?
The concrete consequences of the ongoing annihilation of judicial independence in Poland will not be clearly visible at first for most citizens. Those who have had experience with the Polish judiciary seem in fact to have fallen for the bogus claim that the so-called reforms will improve the efficiency of Poland’s courts especially when it comes to the time needed to resolve a case in court, which tends however to be a genuine issue in most systems. But the so-called “judicial reforms” will not help in this respect and I should add that the average time needed to resolve civil and other claims in Polish courts is actually better than the average time in most EU countries. What we will see instead is strategic but discreet interference by the ruling party with the functioning of courts either when the applicant or defendant are connected with it or conversely, when they are considered adversaries of the ruling party, or when the interests of the ruling party are considered to be threatened in one way or another by pending litigation. Then a phone call is all that will be required to allocate the relevant case to the “right” judge or convince any independent judge to do the “right” thing.
In addition, the effective control of the Polish Constitutional Tribunal means that Polish democracy is being subject to the boiling frog strategy via the adoption of unconstitutional legislation without, however, any risk for the ruling party as effective constitutional review has now been neutralised. When Polish citizens eventually wake up to the damage done, it is likely to be too late as the overall constitutional system would have been captured making any transfer of power extremely difficult if not impossible in practice – there will be little or no opposition go vote for in an unfree election, and no independent judiciary to whom to bring a legal complaint.
What consequences at the international level? in the European Union? Could the “Celmer case” be an example?
In addition to activating for the very first time a procedure which is asking the Council of the EU to determine whether there is a clear risk of a serious breach of the rule of law by Polish authorities, the European Commission has launched several procedures. Most recently, the Commission has urged the Polish government not to go ahead with its law on the Supreme Court, which among other things, will result in a purge of its membership in obvious breach of the principle of judicial independence, including the irremovability of judges, a principle which is guaranteed by both the Polish Constitution and EU law so as to protect the courts from political influence. The problem is that time is of the essence and the EU tends to move at a glacial pace. By the time the Commission eventually involves the European Court of Justice, the Polish Supreme Court is likely to have been purged, replaced by new, docile, qualified or unqualified judges sitting on the bench.
The important Celmer ruling from the European Court of Justice, issued on 25 July is worth noting in this respect. In a nutshell, the Court has strongly emphasised as never before the importance of judicial independence and the obligation for EU countries to maintain and respect the independence of their courts. In practical terms, this ruling essentially means that national courts are now entitled to refuse to give effect to European Arrest Warrant requests originating from Poland if they consider that the independence of the Polish judiciary has been so seriously, systemically compromised that the individual subject to a European Arrest Warrant is bound to suffer a breach of his fundamental right to an independent court which is at the heart of the right to a fair trial.
Is the European Commission’s response to the situation in Poland strong enough? Will it be effective?
Strong enough yes, quick enough no. Because the Commission tends to meaningfully act once the frog has been boiled to death, by the time the different EU procedures have concluded, Poland would most likely have ceased to be a genuine democratic regime based on the rule of law. The Commission should, however, be commended for acting, albeit arguably too late, while the national governments meeting in the Council have been doing their best to ignore the problem hoping that it would go away. Worse, some governments have played a counterproductive role and undermined the Commission’s efforts, with not only the usual suspects supporting Poland’s “reforms” such as the Hungarian Prime Minister but also the UK government which at least once argued that countries should be entitled to pursue “their own democratic agenda” regardless, one must assume, of the country’s constitutional safeguards and international obligations. The depressing reality is that we are looking at the likely consolidation of another hybrid “democratorship” in the EU after Hungary, to borrow the concept devised by Professor Scheppele.
In this context, can Poland still be fully considered as a EU Member state?
No country wishing to join the EU can hope to be able to do so unless it shows sustained and high degree of compliance with the rule of law and democracy. However, once in the EU, the Hungarian precedent and the ongoing seemingly ineluctable deterioration of the rule of law situation in Poland suggest that national authorities can get away with violating the EU’s foundational values without serious consequences. There is, for instance, no procedure allowing for an EU country to be kicked out from the EU, which is not, however, a course of action which would be wise in any event. And the available procedure to eventually sanction an EU country in a situation of a persistent and serious breach of the rule of law requires unanimity. With two “rogue” governments in the EU, this provision has essentially lost all dissuasiveness. One possible outcome of this apparent impossibility to hold a “rogue” government to account is that “resistance” will come in a diffuse manner from national courts through the suspension of mutual trust/mutual recognition based mechanisms. I believe it is also only a matter of time before the Court of Justice is given the opportunity to directly assess the compatibility of Poland’s “judicial reforms” and hold the Polish authorities in total breach of their Treaty obligations and in particular the obligation to maintain the independence of Polish courts.
Laurent Pech is Professor of European Law, Head of the Law and Politics Department at Middlesex University London.
Opinions expressed in View articles do not reflect those of euronews.
Read on EuroNews