By Jackson Richman
While there is fear of nationalism amid a refugee crisis across Europe, there is a bigger issue not being addressed: judiciaries being squashed in countries like Romania, Poland, Bulgaria, and Hungary. What are the ramifications of this trend regarding the judiciary being undermined in these places?
“People who fancy themselves defenders of freedom and democracy have become apologists for practices that are pulling the region — Hungary and Poland in particular — in an unmistakably authoritarian direction,” European political and economic scholar Dalibor Rohac wrote in Foreign Policy. “Their chief error lies in assuming that the will of a parliamentary majority du jour can never be questioned. That is a mistaken understanding of democracy, which should always be embedded within a framework on constitutional rules constraining those who hold office.”
Rohac wrote that in Poland “the Law and Justice party has used its electoral mandate for sweeping reforms of the judiciary, described in damning detail by successive Venice Commission reports.”
“New legislation gives the justice minister the discretion to appoint, dismiss, and ‘discipline’ presidents of ordinary courts,” Rohac added. “The reforms bring the National Council of the Judiciary, a formerly self-governing body, under full control of the parliament.”
Rohac continued, “A new law forces nearly 40 percent of the Supreme Court’s judges into early retirement and creates a retroactive mechanism for “extraordinary review’ of final judgments. With the average age of judges now at around 40, the efforts to bring the judiciary under control of the rule of the majority cannot conceivably be about taking levers of power out of post-communist hands, as Law and Justice claims.”
However, Ioana Salajanu, an attorney who is running to be the first female Romanian-born judge in the United States, disagreed with Rohac’s negative forecast and said that the people of these countries can enact change. She said that in her home country, “People are reacting when there’s a crisis to the current status quo, and I think the voices are speaking as to what the ailments are and the necessary reaction is a reaction from every operating body in that specific system.”
“I think it will be a movement toward change,” Salajanu added. “Because people are responding and reacting to the current trends that are occurring.”
Considering that Romania, Hungary, and Poland are three of the four largest beneficiaries of European Union funding, their euros and EU voting rights should be suspended until they restore their judiciaries which will act as a check on their respective government’s other branches.
“The European Parliament is now debating whether to recommend suspending Hungary’s voting rights in the EU for systemic rule-of-law violations in an echo of a European Commission recommendation against Poland,” according to The Economist. “European lawmakers are entering the fray after the commission forced Hungary to change some of its disputed legislation since 2010, including parts of a judicial overhaul.”
The great philosopher Montesquieu wrote, “There is as yet no liberty if the power of judging be not separated from legislative power and the executive power.”
Unfortunately, what is happening in the aforementioned European countries is antithetical to Montesquieu’s words of wisdom.