Murray Hunt is the Director of the Bingham Center for the Rule of Law at the British Institute of International and Comparative Law.
Imagine a day in the not-too-distant future. A new U.S. president has just been elected. Hugely popular, he enjoys a comfortable majority in both houses of Congress. His first legislative measure: something called the “Federal Courts Independence Act,” which stipulates the mandatory retirement of 40 percent of U.S. federal appeals-court judges (unless the president decides to let some of them stay on). The president will also have a role in determining the courts’ internal organization and rules of procedure, as well as in the disciplining of judges. The act sails through Congress on a wave of popular support. Voters have been persuaded that it is an obvious and patriotic answer to the problem of courts packed by previous presidents getting in the way of the new president’s long-overdue reforms in the name of the people.
Such a scenario could easily be dismissed as scaremongering. But this is, in fact, exactly what’s set to happen in Poland, in the heart of civilized Europe, on July 3. The Polish government, vowing to restore public trust in the judiciary by purging it of alleged communists appointed under the previous regime, will use the new “Act on the Supreme Court” to remove 27 judges — including the president of the Court — and replace them with new judges sympathetic to the current governing party.
The move has been condemned by all the international monitoring mechanisms for breaching long-standing and internationally agreed-upon standards for judicial independence — including the European Commission, the Venice Commission for Democracy through Law, the United Nations’ Special Rapporteur on the Independence of Judges and Lawyers. Lech Walesa, a Nobel Prize laureate and former Polish president, has warned of the danger the act presents to the rule of law.
None of it has made any difference. Unless the Polish government backs down in the face of the infringement proceedings launched on Monday by the European Commission, the judges will be removed and the Polish Supreme Court effectively subjugated to the government. This move follows a similar round of equally destructive “reforms” imposed on the Polish Constitutional Tribunal and the ordinary courts. The rule of law is under serious and systemic attack.
Poland is merely the most extreme example of a more general trend. Judicial independence is under strain in democracies everywhere. Chief justices have recently been removed, or forced to resign, or are facing proceedings for their removal, in a number of countries: Bangladesh, the Philippines, India, Lesotho, and the Seychelles. Of course, judges are not above the law and, without question, there must be procedures to deal with judicial misconduct.
Yet there is no doubt that elected politicians around the world are increasingly targeting courts. Even in Britain, the land of the Magna Carta, the judges who ruled that Parliament must be consulted by the government before initiating the formal process for withdrawing from the European Union were condemned by newspaper front pages as “Enemies of the People.” It took several days before the government minister with responsibility for upholding the rule of law mounted any defense of the judges, following pressure to do so from Parliament.
The undermining of judicial independence should concern everyone who cares about constitutional government. This bedrock rule-of-law principle is vulnerable, and not just to assaults by governments intent on removing all possible sources of constraint on the implementation of their policies. It is also endangered by the complicity of legislatures that are sympathetic to the democratic critique of judicial power, and are afraid to assert their own independence in the face of powerful executives; by the hostility of the media — including social media — with its ever-growing ability to reach huge audiences with vilifying invective; and by the indifference of the public.
When we imagine the death of the rule of law, we usually envision some dramatic scenario, such as the edict of a military dictator who has usurped power by force. Yet the same end can also be pursued through more mundane actions, in the familiar constitutional forms of statutes passed by parliaments in a climate of hostility towards unelected judges, eroding constitutional norms such as judicial independence in the name of democracy itself.
Today’s threats to judicial independence come from across the political spectrum. Illiberal democracy can appeal as much to populists on the left as it does populists on the right. We urgently need a vigorous bipartisan defense of this most fundamental principle.
Paradoxically, the requirement that judges remain politically impartial means they are not well-placed to speak out against the erosion of their independence. It is time for everyone who shares a richer conception of pluralist democracy, in which the legitimate power of elected governments is subject to checks and balances, to stand up for judicial independence. Otherwise we may one day wake up to realize that this crucial bulwark of liberal democracy has been lost.