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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2965

Poland to Remove Supreme Court Judges: an unprecedented move in a major democracy in the EU

Hemantha Abeywardena writes from London…

The ruling Law and Justice Party (PiS), which is hell bent on taking on the Supreme Court Judges, is slowly approaching their desired goal of a complete overhaul of the Judiciary, starting from the apex court.

In an extraordinary move, the upper house of parliament approved the highly-controversial Supreme Court Reform Bill, setting off alarm bells across the European Union (EU) and other Western democracies.

What the bill spells out is not rocket science; nor is it substance for legal eagles to scratch their heads in making out its sole purpose. It simply allows the removal of all Supreme Court judges with a stroke of a pen, except those who are appointed by the Justice Minister and selected by the President.

Understandably, some members of the EU, an avowed bastion of democracy, are worried; so are almost all the major Western democracies, despite the degree of unease ranging from very low digit to that of a moderate one, on a scale of political anxiety.

In a rapidly-evolving, global, political climate, we still take for granted that the form of a government in a functioning democracy consists of three branches; the executive, the legislative and the judiciary. In addition, we are led to believe that they, at least in theory, are mutually exclusive and work completely independent from one another.

The argument for their completely separate existence, we are told, has been maintaining checks and balances in such a way that no branch oversteps its respective domain in order to become totalitarian, while harming the noble concept of democracy.

In practice, however, that is not the case even in the ‘model’ democracies. The uproar that usually breaks out in the US, when it comes to appointing Supreme Court judges by the elected president is a case in point. Even those who have long been in place often come under criticism over the way they interpret – or misinterpret - the constitution in certain cases, especially with strong political connotations.

In the US, the liberal Supreme Court judges, who treat the Constitution as a living and breathing document with a room for dynamism, often come under fire by more conservative elements in the society and the seam between the two camps has been growing opaque over the years.

The fact that the democratically-elected Polish government brought in measures to rein in the Supreme Court judges reflects the unease among the elected representatives of the legislative branch of the government over the functioning of another layer of the same – very unprecedented, indeed.

The dissent between the government and the Supreme Court judges has been brewing for some time in the cauldron of mutual suspicion. In proportion to the rising ‘temperature’, protests did break out in almost all major cities, but to no avail. The upper house of the parliament, in a confident move, approved the bill, paving the way for radical judicial reforms.

In defending the move, the ruling party of the government said the changes are necessary to ensure that the government institutions serve all Poles, not just the elites - a popular slogan to sell the concept to masses.

Those who oppose the move at international level want the government to go back to the drawing board – in order to interpret the constitution. The United States, for instance, urges one of its main allies on the Eastern front of the Nato, follow this route. The EU expressed similar sentiments, without coming down very hard on Poland, an influential, geographically-significant member of the block.

Obviously, there is a cause for concern. The ruling Law and Justice party (PiS) has rushed through its complete overhaul of the apex court: the bill was not subject to any public consultation and adding insult to injury, it was passed by the lower chamber in just nine days after it was first submitted. In short, the modus operandi shows all the hallmarks of an unusual rush.

Although, senior judges denounced the move on Friday, branding it as an attack on rule of law, their criticism does not have the potential to stir up a public revolution against the move. Although, the president of Poland can still veto it, the fact the development grew this far means his last minute intervention is highly unlikely.

Hypothetically, the EU can hand down punitive measures against Poland over the move. Poland, however, is not without allies, notably Hungary. They all have one thing in common; they are run by Eurosceptic governments.

Since the EU is still reeling from the far reaching effects of Brexit, the union cannot afford to antagonize the remaining members at a crucial time, which could easily be interpreted by the nationalistic politicians as trampling over their freedom. So, the EU will have to walk the right rope while holding the pole of stability in the hands.

The move by Poland against its own Supreme Court Judges could set a precedent in other democracies as well in due course, especially where there are simmering discontents between the legislative and judiciary branches over range of issues that stem from the interpretation – or lack of it – of the constitution.

In states like the United Kingdom, however, the threat for such a move is very low despite the absence of a written constitution, because plenty of independent mechanisms are in place to ensure the judicial appointments are made purely on merit. In addition, rigorous checks are in place to guarantee that everyone is equal before the law.

The startling interest shown by the Western democracies over the issue, despite being pretty feeble in its scope and gravity, however, indicates that this could snowball into a real issue in due course in other parts of the world as well, unless it is nipped in the bud.

- Asian Tribune -

Poland to Remove Supreme Court Judges: an unprecedented move in a major democracy in the EU
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