Judges in central and eastern Europe are under attack.
The most frightening thing about this is that the judges are under attack from their own governments. The authoritarian, populist style governments arising across the region have repeatedly shown that they seek to curtail and control judicial independence, subjecting judges to direct governmental control and limiting their ability to act independently. As an independent branch of the state, the judiciary poses a potential obstacle to those bent on the consolidation of power. The assault on an independent judiciary is part of a larger trend, documented across the region, to stifle dissent, whether it comes from civil society, the media, opposing political factions, or judges acting as an independent check on government actions.
The one positive development in the face of these attacks is that, despite government attempts to camouflage their assaults on the judiciary, civil society in the region has noticed, and reacted forcefully. Surprisingly, the public has taken to the streets in cities like Bucharest and Warsaw to defend the role of independent judges in their societies.
Judges are an easy target for a government seeking to consolidate power and increase authoritarian tendencies. They do not have an obvious constituency ready to support them, and their independence can be restricted through arcane and complex legislative moves, not easily understood by the public.
The kinds of proposed legislative changes being advanced in the region are often hyper-technical, but they usually involve shifting supervision of the judiciary away from autonomous judicial bodies, such as a Council of Justice, back to a government body, usually the Ministry of Justice. This undermines the independence of the judiciary because judges lose control over such matters as court administration, performance evaluations, job assignments, promotions, and retirements. Taking control over the judiciary makes it much easier for the government to punish or sanction judges, either individually or as a group. This makes it difficult for judges to function independently, and without fear of reprisal for unpopular decisions or decisions that may go against government policies and objectives.
A Judiciary Left at the Mercy of Governments
To best understand how easy it is to undermine judicial independence, it is important to understand the function of two key institutions involved in the administration of justice—one judicial and the other governmental. The first is the Council of Judges; it is generally an independent body comprised predominantly of judges themselves, and charged with handling issues of judicial administration. Without oversimplifying, a strong Council of Justice is a positive indicator of an independent judiciary, especially in newly democratic or transitioning states. The other key body is the Ministry of Justice, which is part of the government, and which is responsible for justice sector issues, such as drafting legislation, developing policy, and perhaps even overseeing the prosecution function. Problems arise, and judicial independence is potentially threatened when the Ministry of Justice tries to assume powers from the Council of Justice. The result is a judiciary that may be left to the mercies of the government, which can control salaries, resources, appointments and assignments—and which can easily punish an ‘offending’ judge via the manipulation of such administration mechanisms.
In Romania, for example, the government’s justice minister has proposed a variety of controversial ‘reforms’ to the judicial system including some that directly increase the government’s ability to control the function of judges. The changes appear technical on the surface but have the effect of reducing the independence of the Council of Judges (in Romania, known as the Superior Magistrate’s Council), by shifting some powers over the administration of judicial affairs directly to the Ministry of Justice. For example, the Romanian ‘reforms’ would move control of a unit responsible for auditing and inspecting judges over to the ministry, meaning judges would no longer self-police their behaviour. When judges lose these kinds of powers, they end up looking—and functioning—more like civil servants than like an independent branch of the state. And offending civil servants can be easily disciplined.
In Poland, the government’s judicial ‘reforms’ are also fairly technical on their face. They include changes to the composition of the Judicial Council (known in Poland as the National Council on the Judiciary) so that parliament would effectively control the Council, through the selection of a majority of its members. Other proposals would shift control of the retirement process at the Supreme Court to the government, such that the government would effectively control membership of the highest court; a third proposal would transfer the control of the appointment of the heads of the lower courts to the Ministry of Justice approval. Still, other proposals would give the Ministry of Justice control over case assignments.
All of these changes sound technical in nature, but they are insidious. A judge who feels like he or she may at any moment be demoted, reassigned or fired by the government, is not an independent judge. That judge is subject to the government’s bidding. And another nail is hammered into the coffin containing the Rule of Law.
The amount of public outcry and civil unrest caused by these proposals is, therefore, both surprising and reassuring. This is in part due to the fact the proposals against the judiciary have often been part of broader campaigns to consolidate power and stifle civil society and dissent. For example, because the technical reforms proposed in Romania have also been coupled with more obvious efforts to gut successful anti-corruption agencies and officers, it has been easier for the public to understand the overall package as an assault on broad civic protections, such as government transparency and an independent judiciary. Hence the protests in the streets, including daily protests that continue in Bucharest in front of the Victoria Palace, the seat of the government.
In an era of ‘fake news’ and manipulated media, it is encouraging to see that the public across the region seems to understand that technical changes to the laws matter and that a shift in the balance of power away from the judiciary directly undermines the rule of law.
When people take to the streets in Bucharest and Warsaw, it has primarily been not to protest the actions of judges, it is to protest on their behalf. The popular demonstrations seen across the region over the last six months are not, contrary to western media reports, by reactionary elements, and are very much in support of an independent judiciary. This is a point that sometimes gets lost and confused in the western media, which hypes the rise of populism in Eastern Europe.
But public support is fickle, and judges will have to work hard to build and retain public trust. They can best do this by living up to the public’s expectations that they act independently of outside influence, and apply the law in a fair and transparent manner. They must avoid even the appearance of conflicts of interest. Judiciaries that fail to live up these high standards, and which are perceived as simply executing governmental directives risk losing public support. In that case, government moves to rein them in will become a fait accompli. The challenge ahead lies as much with the judges themselves as with the public they serve.
The views expressed in this opinion editorial are the author’s own and do not necessarily reflect Emerging Europe’s editorial policy.