Editorial of October 2018

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 by Vlad Jurje, PhD candidate and Lecturer at Universidad Rey Juan Carlos


Poland v. Fundamental Rights?

A new episode concerning to the Rule of Law in Poland has recently taken place and the European Commission is very concerned. After the recent reform of the National Council of the Judiciary[i], the Polish Parliament has the capacity to decide when to appoint the member judges that compose it. A fact that seriously undermines the norms and international standards on which the independence of the judicial power in Europe is regulated.

We also highlight the instability that has arisen from the reform of the Constitutional Court in Poland because the interference that the Executive and the Legislative branches have committed put at risk the independence of the judicial power. According to the new law which has come into force, out of the 72 current members that form part of the Supreme Court 27 could be forced to retire, since the retirement age was changed: instead of retiring at 70, the new law would remove men at 65 and women at 60.
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Editorial of February 2018

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

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.
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Editorial of September 2016

Pepper Police @ Dresden Nazi Frei

by Mariana Canotilho, Editor
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Democracy at the crossroads

A little over one month ago, the European Commission advanced its disciplinary procedure against Poland, after accusing Warsaw of failing to address concerns over democracy and the rule of law in the country. The Polish government reacted harshly, stating that this is not the kind of presence in the EU they have agreed on, and affirming that the procedure goes beyond the Treaties and the Commission’s competences.

The situation in Poland is serious but it is not unique. Hungary was the precursor in the authoritarian drift. The Tavares report on the country, published in 2013, denounces the weakening of checks and balances, especially the actions against the Constitutional Court, the Parliament and the Data Protection Authority, the undermining of the independence of the judiciary, the restrictions to the rights of persons belonging to minorities and the interference with the media and the right to freedom of opinion and expression.

The Union has strong reasons to fear the dissolution of the rule of law in the East. But the process of re-engagement with it is long, difficult and complex. One of the more obvious difficulties, from a constitutional law point of view, is that the EU’s own track record concerning democracy and the rule of law during the last ‘crisis years’ is at least fuzzy.

The ongoing crisis has been used to contest the steps taken during the last 15 years towards the parliamentarisation of the EU. In fact, there is a remarkable institutional change within the Union – both at national and European levels – promoted in the framework of an ‘emergency politics’ that tends to enhance the powers of executive authorities and of informal, non-accountable, decision mechanisms, in detriment of democratic representative institutions.

Furthermore, the EU has promoted necessity over democratic consent and effectiveness over deliberative reason as decision’s criteria. It has allowed, justified and sometimes even actively furthered the weakening of constitutional mechanisms that control and limit the exercise of power. This has clearly limited the space for well-minded critics, for alternative proposals, for self-reflection and correction of mistakes. Paradoxically, it has also, as the cases of Hungary and Poland sadly demonstrate, opened the floor for the true enemies of European integration and European democratic values. Will the Union still be able – and willing – to save them?

Picture credits: Pepper Police  by MonteCruz Foto.