by José Igreja Matos, President of the European Association of Judges/Vice-President of the International Association of Judges

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Populism and Judiciary

Judicial independence faces today, particularly in Europe, new threats emerging from populist political regimes.

Accepting the fundamental axiom that in a State based upon the Rule of Law, it is always up to the Courts to guarantee the effectiveness of human rights, and there is a strong operative connexion between the exercise of human rights – or the correspondent imposition of duties – and the mission conducted by the judicial systems.

This detected closeness explains the present decline of judicial independence in different regions, particularly within EU geographical space.

One the most interesting findings when analysing those countries deriving to populist and authoritarian policies is the immediate option, since the very early stages, for an vigorous attack on the independence of the judiciary propelled by surgical legislative reforms in the area of Justice. Recently in Poland, for instance, three different laws discussed in Parliament focused in nuclear foundations of judicial careers – Supreme Court, High Judicial Council and Presidents of First Instance Courts.

According to Professor J.J. Gomes Canotilho, after the suggestion of JL Weiler in the book “The geology of international law”, constitutional science is matured through the phenomenon of accretion that supposes a process by which it is gradually accumulated, in extension or volume, sedimentary material. In this metaphorical sense, the accumulation of sediments develops new stratifications making Constitutional Law evolve. With the risk of over-simplification it will be significant to add to the concept of accretion the notion of digenesis as a change in the sediment after its initial deposition more profound and durable than a mere wear and tear. Mainly on the international stage, the new emerging populisms attracting potential dictatorial regimes along with phenomena like the post-trust politics or the “epistemology of tribalism” sparked by the uncritical bias stimulated by social media are seen as indications of a emergence of a larger occurrence – that of digenesis – which grows more intensively and profoundly than a simple accretion.

Adding to the described dangers it should also be listed the assumed “divorce” between courts and citizens in different judiciaries across Europe characterized by a wear and tear in the relations with the community that definitively alienates the value of trust, indispensable to the harmonious functioning of any judicial system.

Zygmunt Bauman alerted that the solutions for these disturbing times can never arise by the handling of magic wands; they require “a cold head, nerves of steel and a lot of courage: above all, we will need a truly long-term vision – and a lot of patience”. Underlining the relevance of dialogue as claimed by Pope Francis (“if there is a word we should never be tired of repeating is the word dialogue”), in this long-term, patient and challenging combat, judicial professions – judges, academics, lawyers – associated on a transnational scale, exercising a cosmopolitan citizenship, must definitively assume an almost inevitable guidance; with resilience in the affirmation of our shared civilizational achievements.

This commitment for jurists is now becoming imperative especially since it is clear that the actual role of fundamental rights within the European policies, including those connected with the “genetic code” of judiciary like judicial independence, has probed to be more negligible than in the past.

The reaction of EU authorities towards the Hungarian judicial reforms some years ago established a discernible benchmark that defines this apathy; now in Poland raises a unique opportunity to react differently.  A crucial test to Europe lies ahead.

Picture credits: Sprectrum demolotion… by Rhys A.