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Parliamentary democracy vs judicial activism: not just a Polish or Hungarian issue!

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European Union – The issue of parliamentary democracy versus judicial activism is not just about Poland and Hungary, even though the focus of the European Commission and the Court of Justice of the European Union (CJEU) seems to have been largely centred on the two Central European countries during the last decade (and more specifically since 2010 for Hungary and since 2015 for Poland). Furthermore, limitation of the powers of democratically elected parliaments by means of checks and balances between the executive, the legislative and the judiciary is not a necessary condition for democracy, as is shown by the ancient principle of unlimited parliamentary sovereignty in the United Kingdom. In that respect, let us not forget that one of the key points put forward by British Eurosceptics and Brexiteers was that making their country subject to the decisions of supranational or international courts such as the Court of Justice of the EU and the European Court of Human Rights (ECHR) increasingly infringed on parliamentary sovereignty and was therefore undemocratic. Although for the time being Britain does not plan to withdraw from the European Convention on Human Rights and free itself from the jurisdiction of the ECHR, the issue may arise again following the report published in February by the European Centre for Law and Justice (ECLJ), which shows strong links between a significant number of ECHR judges and George Soros’ Open Society Foundations, and which therefore questions their impartiality in many key judgments. Under the Treaty of Lisbon, precedents set by the ECHR affect EU law, and thus place clear limits on the sovereignty of nation states, just as in the case of the CJEU. The latter, being an institution of the European Union, itself has a history of interpreting the European Treaties in such a way as to favour the drive towards a federal Europe, and the current hot issue of Polish judicial reform, submitted to the CJEU by the European Commission, is giving the Luxembourg judges the opportunity to extend the powers of Brussels as never before.

The EU sides with rebel judges in Poland for the sake of the rule of law and democracy

Indeed, by the end of March or beginning of April (just one month before the Polish presidential election) the CJEU is due to respond to the European Commission’s request for a temporary ruling ‘freezing’ the Disciplinary Chamber created within the Polish Supreme Court as part of the judicial reforms introduced by the current parliament, where a majority is held by Jarosław Kaczyński’s Law and Justice party (PiS) and its United Right coalition. The conflict over that Disciplinary Chamber is part of a broader conflict concerning the way the fifteen judges sitting on the National Council of the Judiciary (KRS) are appointed, as it is the KRS which put forward a choice of candidates to the Polish President. Since the 2018 reform of the KRS, those fifteen judges (out of 25 members of the KRS in total) are appointed not by other judges but by Parliament, which means that the PiS parliamentary majority now has a clear majority of its own appointees in the KRS, and those new appointees had a decisive voice in proposing to President Andrzej Duda (also from PiS) candidates to sit in the Disciplinary Chamber. To put the record straight, while the Polish Constitution states that there should be 15 judges sitting on the 25-member National Council of the Judiciary, it leaves it to Parliament to decide how those judges should be appointed, and the Polish Constitutional Court confirmed in March 2019 that the current KRS members were appointed in accordance with the Constitution.

Yet some Polish judges question the legitimacy of the reformed KRS and the new Supreme Court Disciplinary Chamber. The Supreme Court First President, Judge Małgorzata Gesdorf, who since 2017 has been actively resisting the reforms of the judiciary passed by Parliament, publicly asked her fellow judges sitting in the Disciplinary Chamber to suspend all sentencing. The chairman of the Iustitia judges’ association announced for his part that he would not appear in front of the Disciplinary Chamber, in spite of having been summoned for his political activism (judges are forbidden to engage in politics). Even worse, some low-ranking judges sitting in local courts now claim to have the right to question judgments delivered by other judges whose appointment was proposed to the President of Poland by the reformed KRS, because they consider those appointments not to have been made in a valid manner, the reformed KRS lacking the necessary legitimacy in their eyes. Even though under the European Treaties the organisation of the judiciary is normally a sovereign matter for each member state, in August 2018 a group of rebel Polish judges sitting in the Supreme Court’s Labour and Social Insurance Chamber referred those questions to the CJEU, in a case which had no direct link to the referred matter. In a judgment delivered in November 2019, the CJEU stated that it is for the referring court, and in the present case for the Labour and Social Insurance Chamber of the Supreme Court, “to ascertain whether or not the KRS [and hence the Disciplinary Chamber as well] offers sufficient guarantees of independence in relation to the legislature and the executive”.

Although according to Polish law only the Constitutional Court has such power, based on the CJEU’s November decision the Supreme Court First President Małgorzata Gesdorf called – on January 23 – a meeting of three of the Supreme Court’s five chambers, including about half of all Supreme Court judges, and they passed a resolution by which all decisions taken by the Disciplinary Chamber were deemed invalid and all judges appointed by President Duda based on candidacies put forward by the reformed KRS should stop rendering judgments, finding that the reforms voted into law by Parliament in 2017 were in violation of European law (namely of the principle of independence of justice referred to in the European Treaties). At the same time, the speaker of the Sejm brought the question of the respective competences of Parliament and the Supreme Court before the Constitutional Court, and the latter suspended the Supreme Court’s January resolution and will soon decide whether three chambers of the Supreme Court can question laws approved by Parliament. It is to be expected that the answer will be that it cannot, since the Polish Constitution does not provide for such a possibility, reserving that competence exclusively to the Constitutional Court.

However, just like the Juncker Commission before, the Von der Leyen Commission is siding with the rebel Polish judges who, as mentioned before, are asking the Court of Justice of the EU first to temporarily ‘freeze’ the Polish Supreme Court Disciplinary Chamber and then to pronounce a judgment on the validity of the disciplinary system introduced by the Polish Parliament, in the light of the general principles of the rule of law and independence of judicial courts stipulated in the European Treaties.

The EU vs Hungary

In much the same way, when in 2011 Viktor Orbán’s constitutional parliamentary majority introduced a new constitution restricting the competences of the Hungarian Constitutional Court and lowering the age of retirement for judges to 62, so as to eliminate those judges who had begun their careers under the communist regime, the European Commission stood on the side of those who saw such reforms as a threat to the rule of law and, therefore, to democracy itself. It took the issue of the retirement age to the CJEU, which stated in November 2012 that “The radical lowering of the retirement age for Hungarian judges constitutes unjustified discrimination on grounds of age”, and Hungary had to raise the retirement age for judges to 65, which was the standard retirement age in that country. In June 2011, the European Parliament itself adopted a resolution criticising the new Hungarian Fundamental Law for “putting the independence of Hungarian judiciary at risk”, in particular because of “the provisions concerning the new Hungarian Constitutional Court”. Even as recently as June 2019, the European Commission sent to the Council a recommendation on Hungary in which it states that “Checks and balances, which are crucial to ensuring judicial independence, have been further weakened within the ordinary courts system. The National Judicial Council faces increasing difficulties in counter-balancing the powers of the President of the National Office for the Judiciary. This gives rise to concerns regarding judicial independence.” Unsurprisingly, while the members of the National Judicial Council are judges appointed by other judges, the President of the National Office for the Judiciary is appointed by Parliament. So once again the European Commission, just like the European Parliament, is seen to attack Hungary for having put parliamentary checks on appointed judges, as if the rule of law and democracy could only be guaranteed with a totally independent judiciary, and as if an unchecked judiciary was in itself the best guarantee of democracy.

Why has the EU never questioned the British principle of unrestrained parliamentary sovereignty?

If this were so, then EU institutions should have put the United Kingdom under the spotlight as soon as it joined the European Union in 1973, or as soon as the Treaty of Lisbon entered into force in 2009, as that treaty incorporated into European law the Charter of Fundamental Rights and the obligation to adhere to the European Convention on Human Rights. True, Protocol 30 of the Charter of Fundamental Rights explicitly states that “the Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms”. But then, as per this Protocol, what applied to the United Kingdom until Brexit should apply to Poland as well, which clearly is not the case in the eyes of the European Commission and the CJEU (see the November 19 judgment concerning Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to the Republic of Poland and to the United Kingdom: “it should be recalled that it does not call into question the applicability of the Charter in Poland, nor is it intended to exempt the Republic of Poland from the obligation to comply with the provisions of the Charter”).   

While Warsaw and Budapest are reproached for reforms which are described as being an abuse of power by parliament and as calling into question the system of checks and balances and separation of powers, and hence the rule of law and democracy, parliamentary sovereignty in one of Europe’s oldest democracies is defined in the following way: “Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.

Half of the Polish Supreme Court’s judges and its first president claimed in January the right to invalidate a law passed by the country’s Parliament, based on a November CJEU judgment stating that European law is above national law and that as per the second subparagraph of Article 19(1) of the Treaty on European Union “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” Unfortunately, the European Commission overtly supports that clearly unconstitutional stance (in Poland only the Constitutional Court has the ability to invalidate laws approved by Parliament) in the name of the principle of direct application of European law. At the same time, in another country that belonged to the EU until January 2020, Parliament “can create and end any law” and “the courts cannot overrule its legislation”, and that never bothered the current European Commission or any previous one.

It is also to be noted that the UK has no Constitutional Court and that its Supreme Court, which is regarded by many commentators as contrary to British parliamentary tradition, was only created in 2009 by a law enacted by Parliament under Tony Blair’s Labour government. Since according to the British constitution “no Parliament can pass laws that future Parliaments cannot change”, the Supreme Court could easily be abolished by the current parliamentary majority. As it happens, the new Attorney General for England and Wales appointed by PM Boris Johnson in February, Suella Braverman, is of the opinion that for the sake of democracy Parliament must seize back control not only from the European Union but also from the courts. Braverman wrote in January that last September’s judgment by which the Supreme Court ruled Johnson’s suspension of Parliament unlawful was one more example of “chronic and steady encroachment by the judges” into political territory. She criticised “judicial activism” and said: “Yes, courts should operate to curb abuse of power by government but if a small number of unelected, unaccountable judges continue to determine wider public policy, putting them at odds with elected decision-makers, our democracy cannot be said to be representative. Parliament’s legitimacy is unrivalled and the reason why we must take back control, not just from the EU, but from the judiciary.” As Attorney General, Braverman is now the chief prosecutor for England and Wales and chief legal advisor to the government.

In an article titled “Fixing the Supreme Court should be Boris Johnson’s constitutional priority”, The Telegraph’s editor Charles Moore derides the vision of Brexit as “a contest between ruthless ‘populists’ and righteous persons determined to resist anything which could have ‘an extreme effect upon the fundamentals of our democracy’”, the last words being a quote from the September Supreme Court decision to invalidate Johnson’s prorogation of Parliament when the Remainer opposition, helped by anti-Brexit Speaker John Bercow, had taken control of the Order Paper of the House of Commons while refusing new elections. In order for this not to happen in the future, Boris Johnson has promised to repeal the Fixed-term Parliaments Act of 2011 in order to restore the government’s ability to call general elections at its own discretion. Moore also suggests that the government and its majority in Parliament “should find a way of restoring the non-justiciable prerogative right of prorogation in its repeal. It should look again at the ‘independent’ panel for appointing judges which gives the current establishment almost untrammelled power to replicate its own.” Indeed, writes Moore, the “Bill of Rights of 1689, […] protects political liberty by insisting that no ‘proceeding of Parliament’ should be ‘impeached’ in a court”, and “a formal separation of powers never existed before in this country. It was better thus.

Would the likes of Małgorzata Gesdorf – the First President of the Polish Supreme Court – or Věra Jourová – the Vice President of the European Commission for Values and Transparency who is now questioning the Polish Parliament’s ability to appoint members of its National Council of the Judiciary – therefore say that the rule of law and democracy are threatened in Britain just as they are in Poland because of what they see as insufficient separation of powers?

Soros’ judges sitting in the European Court of Human Rights

Another question is whether the “unelected, unaccountable judges” sitting in the CJEU and the ECHR are really independent and impartial. The ECHR in particular raises serious doubts. Although it is not an institution of the European Union, it is in charge of interpreting the European Convention for the Protection of Human Rights and Fundamental Freedoms, which “shall constitute general principles of the Union’s law” (Article 6(3) of the Treaty on European Union). In the past decade, its judgments have ordered Italy to legalise homosexual unions and Austria to make “second-parent” adoptions available to same-sex couples, and it has exerted pressure on Poland in favour of some liberalisation of abortion, while Hungary was compelled to abolish real life sentences (without eligibility for parole). Not only is the ECHR often accused of judicial activism because of its often far-stretched interpretations of a Convention for the Protection of Human Rights and Fundamental Freedoms which is written in general terms, but this accusation is now supported by a report recently published by the European Centre for Law and Justice – an international NGO dedicated to the protection of human rights – which includes a list of ECHR judges with strong links to NGOs that are active before the very same Court. As that report shows, “at least 22 of the 100 permanent judges who have served on the European Court of Human Rights (ECHR) between 2009 and 2019 are former officials or collaborators of seven NGOs that are highly active before the Court. Twelve judges are linked to the Open Society Foundation (OSF) network, seven to the Helsinki committees, five to the International Commission of Jurists, three to Amnesty International, and one each to Human Rights Watch, Interights and the A.I.R.E. Centre. The Open Society network is distinguished by the number of judges linked to it and by the fact that it funds the other six organisations mentioned in this report. Since 2009, there have been at least 185 cases in which at least one of these seven NGOs is officially involved in the proceedings. Of these, in 88 cases, judges sat in a case in which the NGO with which they were linked was involved. (…) Over the same period, there were only 12 cases in which a judge withdrew from a case, apparently because of a link with an NGO involved in the case. This situation calls into question the independence of the Court and the impartiality of the judges and is contrary to the rules which the ECHR itself imposes on States in this area. It is all the more problematic as the Court’s power is exceptional.

Judicial activism, not parliamentary sovereignty, poses a real threat to Western democracy

So what if the real threat to today’s Western democracies lies not in “ruthless populists” restoring some kind of parliamentary control over the judiciary, but in the attitude of those “righteous persons determined to resist anything which could have ‘an extreme effect upon the fundamentals of our democracy’” and to have all laws passed by elected parliaments put at the mercy of unelected judges and their judicial activism? It is not just a European issue. When the United States Supreme Court imposed the legalisation of “gay marriage” in all 50 states of the Union in 2015, dissenting Justice Antonin Scalia called it an affront to the principle of democratic rule and accused the Supreme Court of increasingly creating policy instead of being an arbiter. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court”, Scalia then wrote. “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Although not going that far, the 2018 judgment of the Court of Justice of the European Union which compelled all 28 member states to recognise the legal effects of same-sex unions undoubtedly does infringe to some extent on the freedom of the peoples of Europe to govern themselves, since under the European Treaties which were approved by their elected representatives, they have never knowingly relinquished their right to decide as sovereign peoples on their own future social transformations. Nor have they knowingly relinquished their right to restore some form of democratic control over their own judiciary and to put checks on judicial activism.

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