27 July 2017
Poland In Court
The Law and Justice party attacks law and justice.
by Neil Tidmarsh
It was touch and go. The political establishment was determined to give itself power over its country’s judges. The independence of the judiciary – its separation from the executive – is of course the cornerstone of democratic freedom and the rule of law; to undermine it is to open the door to corruption and tyranny. But the parliament didn’t care. It wanted the power to remove judges from office by a simple majority of MPs. And it would have secured that power were it not for one man and the long, hard battle he fought for the liberty which his country, Scotland, now enjoys a generation later.
No, not Poland. Scotland, in 1997.
The Scotland Act of 1997 originally included a clause which would have given the devolved Scottish parliament the power to sack judges. It wasn’t until the Act was going through the Lords that this clause was challenged, ironically by one of the architects of Scottish devolution, Lord McCluskey, the lawyer who had been Harold Wilson’s solicitor-general for Scotland in the 1970’s. John Herbert McCluskey eventually won his battle (against fellow Lords and his own Labour party); he proposed that only an independent, non-political body led by a privy councillor should be able to remove a judge, and in the end the proposal was accepted.
Lord McCluskey died a week ago, coincidentally just as Poland was engulfed in an almost identical constitutional dust-up. This dust-up is shaking Europe to its core, in a way that the mysteriously-forgotten Scottish episode of exactly thirty years ago strangely did not.
Polish MPs and the Senate voted this week to give politicians the power to appoint and remove judges. The country’s human rights ombudsman told parliament that the vote would deprive citizens of the “right to an independent court”. The Polish judges’ association condemned the vote as an attempt to undermine the rule of law and the democratic separation of the government and the judiciary, and described it as a ‘coup’, as did the head of the main opposition party Civic Platform. The public took to the streets in massive demonstrations to protest. The Czech Republic, Germany, England, the US state department and the EU all criticised the proposal. The European Commission threatened to invoke Article 7 of the EU treaties for the first time (this is designed to counter human rights violations and would suspend Poland’s voting rights in the Council of the European Union, effectively ejecting it from the EU) if the Polish president signed the votes into law.
President Duda, thankfully, vetoed the two bills which would have given the government the power to hire and fire supreme court judges. It would be nice to think that his hand was guided by the spirit of the very recently deceased Lord McCluskey. But the president did sign into law the bill enabling the government to hire and fire the heads of lower courts. And the governing nationalist Law and Justice party said that it will nevertheless continue with its plans to assert itself over the supreme court, regardless of the vetoes.
The EU now has to decide what to do about it. Invoking Article 7 would require a unanimous vote by all EU member states; this is unlikely to happen as Hungary has declared its support for Poland. But there are other sanctions it could impose on Poland for turning away from the democratic standards it expects from its members.
The Polish government insists that it needs to reform the judicial system for the sake of law and order in the country, but the suspicion remains that it’s using the issue to stick two fingers up to the EU for its heavy-handed insistence on migrant quotas and its relentless push towards political union, both of which Poland opposes. But the fact is that a government which has the country’s courts and judges under its thumb is a government free to enrich itself through corruption and to increase its power by putting its political opponents in prison and riding rough-shod over its citizens’ rights. Nobody should be above the law, not even politicians. Especially not politicians.
Talk of “the separation of the judiciary and the executive” and “the independence of the legal system from the government” might sound abstract and academic, but a glance around the world today will show just how important it is and just how disastrous it can be when it breaks down.
In Venezuela, the president appoints all Supreme Court judges, and has thus been able to use the Supreme Court to govern the country ever since elections two years ago gave opposition parties a majority in parliament. This by-passing of democratic processes has resulted in economic collapse, the break-down of law and order, impending revolution and accusations of corruption levelled at the president, his government and his family. The authorities in China and Russia have been accused of using the courts to remove political rivals and troublesome activists, as reported last week: Alexander Navalny’s supporters insist that his conviction for fraud earlier this year was trumped up by the authorities to put him out of next year’s race against Putin for the presidency; and in China, Sun Zhenghai’s detention by the Central Commission For Discipline Inspection has raised similar questions.
On the other hand, events in Brazil have shown just how essential a ferociously independent judicial system is to a free and fair society. Judges, prosecutors and the police have uncovered massive fraud and corruption involving the state-run oil company Petrobas and members of the highest ranks of the country’s political and business worlds. “Operation Carwash” has fearlessly pursued and prosecuted everyone involved – irrespective of their power, wealth, influence or political orientation – including ex-presidents and serving presidents.
In the USA, judges have challenged and over-turned on legal grounds the executive orders with which President Trump has attempted to by-pass the democratically-elected Capitol. In 1973, President Nixon tried and failed to impede the Watergate investigation: he ordered the attorney general Elliot Richardson to sack the Watergate special prosecutor – but Richardson refused, and resigned; Nixon then ordered the deputy attorney general to sack the special prosecutor – but the deputy also refused and resigned; Nixon himself was brought down the next year. There’s a lesson in there somewhere for President Trump, whose persistent criticism of his attorney general Jeff Sessions this week suggests that he is trying to force him out of office. President Trump is annoyed that Jeff Sessions quite rightly removed himself from the investigations into allegations of collusion with Russia in the presidential election; does this mean that here’s another president looking for an attorney general who would be prepared to interfere in the processes of law and order on behalf of the government?
Such events may seem to be taking place in distant countries which have different traditions and histories to the UK; and England’s national myth of Robin Hood and his merry men taking to the greenwood may well be a perfect metaphor for the necessary separation of the judiciary and the executive; but that clause in the Scotland Act of 1997, and Lord McCluskey’s brave fight against it, prove that the British have no reason to feel smug and that complacency is always dangerous.
Here’s to the memory of John Herbert McCluskey, 1929-2017, and to the independent judiciary he championed.
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