Aktualne kierunki rozwoju władzy sądowniczej. Marsz Tysiąca Tóg rok później
Please allow me to address my first words to Iustitia, a long-standing member of MEDEL, and to Themis, thanking these two brave and independent associations of judges for their tireless struggle in defence of the Rule of Law, giving an example not only to all the judges in Europe, but to the entire world.
I would also like to express full solidarity to Lex Super Omnia, a brave prosecutors’ association member of MEDEL, who has also been facing persecution from the Polish authorities and has been showing enormous courage when facing those attacks.
It is an honour for MEDEL, and me in particular, to be associated with this conference, that marks the anniversary of an event that – I believe I can state it without risk of exaggeration – will be seen in the future as a landmark in the history of the Judiciary in the European Union – the March of 1000 Robes, of January 15th, 2020.
Seen the program of this conference and the quality of the speakers that will follow, these introductory words must be short and merely serve as a small contribution to the debate and discussion that will follow27.
1.
When thinking of the possible ways of development of the Judiciary (the main topic of this conference), we can’t avoid looking, in the European Union, at the examples of Hungary and Poland, and see in them the worrying signs of a more global trend of delegitimation of the Judiciary, in the context of the rise of populism and the polarisation of the political debate.
We have been witnessing in the most recent decades a phenomenon of attempt to subvert democracy from the inside, with the use of its mechanisms and institutions. As Steven Levitsky and Daniel Ziblatt explain28: „this is how elected autocrats subvert democracy – packing and »weaponizing« the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence) and rewriting the rules of politics to tilt the playing field against opponents. The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy – gradually, subtly, and even legally – to kill it”.
Populists thrive on conflict, not on compromise. The rise of populism is based on the polarisation of the political and social debate. Populist wannabe leaders use a rhetoric based on the division of society between the “elites” (who are part of “the system”) and “the people” (that they, pure and uninterested leaders, will save by destroying the “corrupt and biased system”). This black and white picture on which populist movements base their speech inevitably leads to a stark division of society – the political debate is no longer one of conflicting ideas that move towards a compromise through dialogue, it is instead one of opposite and irreconcilable groups, that are unable to leave their own trenches and reach to the other side.
This phenomenon attacks the very core of representative democracy. The proper functioning of democracy depends not exclusively on written Constitutions and laws, but mostly on an unwritten pact between citizens. This pact consists in what Levitsky and Ziblatt define as mutual toleration and institutional forbearance29: the acceptance of political opponents as legitimate and equal, because they play by the same rules; the attitude of self-restraint when exercising power, avoiding taking actions that, even if respectful of the letter of the law, violate its spirit. If these basic rules are broken, formal institutions fall apart, regardless of still being laid down in written Constitutions.
What populists do, however, is attack institutions, so they can present themselves as the only interpreters of the “will of the people”, against a system built to maintain the status of a privileged elite.
If the distrust sowed in this way is terrible to all institutions, even more so it is to the Judiciary. The legitimacy of the Judiciary does not rely on a majoritarian vote of citizens, but exclusively in the trust generated by transparent procedures and well-reasoned decisions. If that trust is affected, the whole Judiciary is delegitimised.
On the other hand, we have been witnessing a trend of judicialisation of politics, derived from the polarisation of the political debate – political parties, unable to reach compromises through political dialogue, increasingly tend to take their disputes to courts, trying to take some political dividends: governments try to “delegate” powers to the Judiciary, in order to gain credit or reduce blame; opposition movements appeal to courts, trying to harass or block governmental action; all of the political actors go to courts, trying to divert attention from political deadlocks30. The consequences of this judicialisation of politics, however, are devastating for the Judiciary: public trust diminishes, as courts are increasingly seen as the stage of political struggle, permeable to political party influence and not exclusively driven by purely juridical criteria.
Here lies what we may call “the populist trap to the Judiciary”: populists promote anger and the polarisation of society; this leads to distrust in institutions and lack of political dialogue, which in turn gives way to the judicialization of politics; public perception of the independence of the Judiciary is consequently further undermined, allowing populists to accuse it of belonging to the corrupt system they are the only ones capable of changing.