The Judiciary at the heart of the rule of law debates

https://doi.org/10.63189/TUGP1248

An essential element of thinking about power since the early modern period has been judicial power as a counterbalance to unlimited power. Adjudication played a prominent role in early conceptions of the rule of law. Among the three distinctive features of the English Rule of Law – the absence of arbitrary or discretionary power on the part of government; that every man is subject to the ordinary law administered by ordinary tribunals; and that the general principles of the constitution, the rights of the individuals are derived from judicial decisions – judicial control plays a key role.^[1] This form of the Rule of Law, in terms of the allocation of governmental powers essential to an adjustment of the legal order to the life of society, implicitly prefers the dominance of the judicial branch.^[2] Similarly, the German Rechtsstaatlichkeit also “institutionalises the right to contact a judicial forum for a definitive legal verdict via due process in any case that may have legal relevance”.^[3] The French doctrine rejected the over-power of the judiciary (fear of a ‘government by the judiciary’) because of historical reasons from the period preceding the French Revolution. Consequently, the État de droit has always been sceptical of the idea to strengthen the role of the judiciary vis-à-vis the power of the state and its administration.^[4] However, this does not mean that the expectation of judicial review has ever been insignificant in the French legal system.

Based on these foundations, from a historical perspective we can hardly dispute that the development of judicial power has been virtually uninterrupted. Arriving to the present, the global expansion of judicial power is among the most significant developments we witness. During this process, more and more courts are ruling on fundamental rights, political issues, and moral dilemmas. This phenomenon is called “judicialization of politics”, also „Judicial Era” and is more and more flourishing. Ran Hirschl sees the following reasons behind this phenomenon. The phenomenon stems from several interconnected developments. Firstly, after the Second World War and particularly during the “third wave” of democratisation (late 1970s–mid-1990s), the separation of powers and the rise of independent judiciaries became central to new democratic systems. During this time, the spread of “global constitutionalism” further entrenched judicial power, as constitutions increasingly included enforceable rights and empowered courts to review laws and government actions. Regional and international courts –especially the Court of Justice of the European Union and the European Court of Human Rights – expanded legal integration and influence. This expansion was reinforced by broader social and economic trends, including the legalisation of governance and the emergence of a global “legal complex” of lawyers, NGOs, and advocacy groups. At the same time, political and strategic factors also play a role: federal coordination needs, political gridlock, elite self-preservation, and judges’ own institutional ambitions have all contributed. Hirschl argues that ultimately, courts have evolved into influential political actors that shape democratic governance.^[5]

We can hardly dispute that but maybe it is worth to emphasize the first argument more because we, here, in Eastern Europe, are directly involved in this process. The collapse of the Soviet Union and the political changes in Eastern Europe in 1989-1990 gave new impetus to existing ideas about the rule of law, democratic governance, and the limitation of power. After decades of dictatorial rule, many states made the transition to democracy, which created a demand for the rapid establishment of an ideal democratic system. The ideal is ideal in that it can only be aspired to, but its implementation is difficult, to say the least. It was obvious that the process would not happen overnight, but at the same time, there was a need for internal institutions that could keep the processes under constant control. These institutions were first the constitutional courts^[6], then the regular courts.

This process coincided with these states, while having finally returned to the “West” to which they wished to belong, expressing their desire to join the European Union, which also brought with it the need for a detailed set of requirements to facilitate integration. During this time, the so-called Phare program was designed to help countries in transition to join the European Union. Under this program, a book of more than 600 pages entitled Reinforcement of the Rule of Law^[7] was published in 2002, which gave an overview – among others – of the judicial organization, status and role of the public prosecutor and court procedures and the execution of judgments in the countries concerned.

Parallel to this process, the Venice Commission also gained new momentum and began to focus on issues of the rule of law and the administration of justice. Currently, its Rule of Law checklist focuses on independence and impartiality with numerous opinions issued: independence of the judiciary, independence of individual judges, impartiality of the judiciary, the autonomy and control of the prosecution service, independence and impartiality of the Bar, fair trial, access to courts, presumption of innocence, and effectiveness of judicial decisions.^[8]

The triple crown was finalized by the European Union when it introduced the annually Rule of Law Report Mechanism, which methodologically focuses on significant developments regarding of the legal and institutional framework relevant in four pillars: justice system, anti-corruption framework, media pluralism, and institutional issues linked to checks and balances.^[9]

During this process, a democratic institutional system was established that formally met international expectations regarding the rule of law. At the same time, however, the development process shows that over time, the issue of substantive compliance gained increasing prominence, which on the one hand led to the emergence of new criteria, and, on the other hand, brought to the surface questions about the limits of power and the limits of control institutions, which were not actually discussed either when the democratic institutional system was established or when the country joined the European Union.^[10] Thus, albeit belatedly, a process of rethinking power emerged, and where the appropriate authority existed, its repositioning also took place through legal means and within a legal framework (see, for example, the case of Hungary), while this process was counterbalanced by increasingly expansive substantive criteria replacing formal rule of law criteria. The tension broke out belatedly and as an effective internal control, it is not surprising that judicial power has become the focal point of this process.

Looking at the annual rule of law reports and the opinions of the Venice Commission, two areas were affected by the disputes: judicial independence on the one hand, and the independence of the judiciary as an institution on the other. The existence of constitutional and legal guarantees appears as a formal requirement, particularly with regard to the separation of powers and the status rights of judges (appointment, removal, other forms of accountability, promotion), as well as the issue of the administration of the organization (where self-administration as an administrative solution is becoming an increasingly firm expectation).

In contrast, the substantive criteria go much deeper and are specifically country-specific. The focus is on examining whether formal guarantees are actually enforced in practice. One critical issue is judicial appointments, promotion, disciplinary actions, and having no influence on the independent decision-making in this area, while the examination is not carried out specifically through individual cases, but rather the perceived or real problems surrounding the institutional system of decision-making are projected onto the status of judges (see, for example, the still ongoing debates surrounding the composition of the Polish National Judicial Council). This debate is also linked to the emergence of expectations that would strengthen the actual power of judicial councils. Another sensitive issue in eliminating attempts at interference has been examining how cases are assigned to judges, i.e., the order of case allocation methods. Case allocation was originally part of internal operations, but this was replaced by the expectation of external transparency and, more recently, by non-interference, i.e., automatic case allocation (see, for example, the debates surrounding the case allocation system of the Hungarian Kúria). Another key issue is the implementation and application of EU law (cf. the emergence of the concept of constitutional identity in the arguments of constitutional courts).

The ongoing disputes surrounding the issue of judicial independence in Europe expose an uncomfortable paradox: while these disputes are framed as efforts to defend the rule of law, they often transform into ideological battlegrounds. The proliferation of monitoring mechanisms and assessments, whilst valuable in terms of ensuring transparency, are often detached from both political and social realities. In Central and Eastern Europe, this dynamic has the potential to engender defensiveness rather than reform, and polarization rather than dialogue. The challenge, therefore, is to move beyond compliance-based approaches towards a more reflective, participatory understanding of judicial authority. In order for the rule of law to be regarded as a living principle rather than a rhetorical instrument, it is imperative to rethink it as a shared constitutional conversation about the legitimate boundaries of power – judicial, political, and supranational alike.

^[1] Dicey, 1915, pp. 147-150.

^[2] Harvey, 1961, pp. 493-499.

^[3] Varga, 2021, p. 16.

^[4] Burnay, 2018, pp. 19-22.

^[5] Hirschl, 2023, pp. 65-68.

^[6] Fort the fast introduction of the constitutional court in the Central and Eastern European region see Sadurski, W., 2009 pp. 500-527.

^[7] Reinforcement of the rule of law. Final report on the First Part of the Project. Phare Horizontal Programme on Justice and Home Affairs, August 2002

^[8] CDL-AD (2016)007, see also The Rule of Law Checklist.

https://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf

^[9] Panov, 2023, p. 82

^[10] This underlying problem is well articulated by Sadurski: „For all their importance and activism, their introduction had not been preceded by any thorough debates concerning the merits and demerits of the model transplanted from Western Europe – especially, from Germany – and the developing jurisprudence of the courts was strangely silent about the grounds and the limits of the courts' legitimacy, especially when replacing parliamentary choices on rights-implicating matters with the courts' own views about the proper articulation of vague rights-provisions.” Sadurski, ibid, p. 526.