September 20th, 2019. The President-Elect of the European Commission receives a letter from the presidents of the judicial organizations of the European Union. They fear for the judicial independence and the Rule of Law, as there are certain Member States who use the judicial system for their own political profit. And this, the Presidents say, is not only dangerous for the citizens of the Member States, but will also harm the trust on which this Union is built on, which may hurt the willingness to protect it. The Union is in danger, as long as the independence of the judicial systems is not protected, nay fought for, or so they say. Are they right?
In 2015 the Polish president adopted a law which severely invades the power and the independence of the Constitutional Court. Before that, five new judges were nominated who carry a strong preference for the current governing party, PiS, but the new law affects the decision-making process in a serious manner. The only means of control on the government, is now in the hands of that same government. The next reformation took place in 2017, when it became possible for the government to not only nominate, but actually appoint judges. And now, just a few days ago, President Duda signed one of the most terrifying laws I have ever read. As of February 4th, 2020, it is possible for the government to fire and punish judges, when the judgements clash in any way with the government and its ideas. Judges who criticize the government or other, by the government appointed judges, run the risk of being punished.
In 2018 the European Parliament agreed to a article 7-procedure against Poland. This procedure could lead to permanent loss of the right to vote in the European Council, but since several Member States have already confirmed to support Poland, the chance that it will lose its right to vote is small.
Unfortunately, Poland is not the only Member State that, by a dubious arrangement of its constitutional state, threatens the norms and values of the European Union. Also in Hungary and Malta the constitutional state is under attack. The Trias Politica in Malta is not arranged as it is supposed to be. The prime minister has a lot of power in naming government officials, there is a lot of nepotism and the extent of corruption in the Maltese government is particularly high. Two years ago, the monitor for the Council of Europe Pieter Omtzigt started an investigation into the murder of a Maltese journalist Daphne Caruana Galizia. She got murdered after she wrote piece after piece about the Maltese corruption and the wrongdoers got unpunished. This week, Omtzigt traveled to Malta again, to check if they have made any progress to fight the corruption.
At the end of 2018 a law passed in Hungary that makes it possible for the government to put together a court that deals with governmental issues like taxes and elections. Judith Sargentini, the Hungary reporter, advised to start a article 7-procedure against Hungary. After consideration, the European Council accepted this advice.
The norms and values of the European Union are under attack. Even if there was only one, there are multiple Member States that injure the constitutional state, the Trias Politica, the judicial independence. As a law student, it hurts that there are judges who are being punished for applying the law, and therefore possibly criticise the government, but that should not be important. Judges apply the law, and as long as there is another power that has any influence on that decision, the system is not working as it should. And that is dangerous as a hungry lioness.