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Getting Creative With the Rule of Law

Attempts to bend – and even break – the judicial system throughout Central Europe do not bode well for the future of the sector’s independence in the region.

by Martin Ehl 4 July 2018

Stretching the constitution to its wider limits seems to be a very popular sport nowadays among leaders of post-communist EU member states. While Poland’s conflict with Brussels has been getting the most press, clearly it’s more than Warsaw that has a serious problem with the rule of law itself.


Let’s start with the Czech Republic, where President Milos Zeman refused to name a new minister of foreign relations, even though the constitution does not give him the right to do so. The new prime minister, in this case Andrej Babis, should have taken the case to the Constitutional Court to force the president to sign the decree. But because both men have struck an (unwritten) deal about the division of power, the constitution has suffered – and the rule of law along with it.


Another case comes from Romania, where Liviu Dragnea, the leader of the governing Social Democratic Party (PSD) and the speaker of the lower chamber of parliament, was sentenced last month to a prison term for corruption. It is his second conviction, the first one, from several years back, prompted President Klaus Iohannis to refuse to name Dragnea prime minister even though his party won the elections in 2016.


Dragnea and PSD, the successor of the communist party, have been trying to undermine the anti-corruption agency (known as DNA), which has successfully prosecuted both big and small fish throughout the country. They have attempted to strip the agency of some of its powers, and now the minister of justice wants to fire the DNA head, through a decree that the president says he will not sign. The government (where PSD has a majority) and the president are now embroiled over the case at the Constitutional Court. The ruling party, however, survived a no-confidence vote last week, showing that Dragnea still enjoys support in parliament despite his sentence and the DNA controversy.


In the Czech case, the president has been misusing his power to force his will, while in the Romanian instance the president wants to defend the achievements in fighting graft in a country that, along with its Bulgarian neighbor, has become synonymous with corruption within the EU.


The Romanian government, on the other hand, seems to have taken the Hungarian route, attempting to re-write unfriendly legislation, while the Czech president does not have such power. Zeman is merely using a situation where he does not have a strong opponent on the political scene, because Prime Minister Babis is depending on him (and the communist party) for his second attempt at forming a government.


Both situations are quite illustrative of recent developments in Central European countries, which struggle, in general, with putting into practice the rule of law. It is still part of the legacy of communism, and of the speedy transformation that followed, that laws are considered to be more of an obstacle than a guarantee that the rules of the game will be respected by all, paving the way for greater prosperity and the deepening of democratic standards.


Poland finds itself at a move advanced stage, in an open conflict with the European Commission over their very different interpretations of the rule of law. The dispute has only escalated in recent days after a controversial law took effect, forcing the court’s president and dozens of other judges into retirement.


There is a very real danger that the Polish judicial system will now become unreliable in the eyes of judges across the EU. One Irish judge, expressing doubts about extraditing a Polish criminal back to his home country, has already asked the European Court of Justice for its opinion about the integrity of the Polish judicial system. The case is still pending.


Stretching the law, including the constitution, is just the first step. The next one is to change it as Fidesz, the Hungarian governing party, did in 2011 after gaining a two-thirds majority in parliament.


But voters are not protesting en masse. They have had the experience of the slow, inefficient delivery of justice since the post-communist transformation began. When populists arrived to promise quick solutions to society’s endemic problems, the performance of the judicial system was an easy target.


This pillar of liberal democracy seems to be the most damaged one in Central Europe – if, that is, it was effectively erected after 1989 at all. Now we can see that these changes were underestimated by the founding fathers of these newly democratic countries. At the time, the adoption of a capitalistic system and speedy economic development were, understandably, the focus.


In hindsight, the creation of an effective and reliable judicial system should have been seen as carrying the same, if not greater, importance for the success of the long-term transformation. 

Martin Ehl is chief analyst at Hospodarske noviny, a Czech business daily.

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