Framing and Taming of the Exercise of Power: The Rule of Law in Hungary and Poland

As part of our Simple Explainer Video Series, Chris Merritt and Sally Layson interviewed Professor Martin Krygier about the rule of law in Eastern Europe- particularly regarding recent tensions between the EU, Poland and Hungary, and the breaches of the rule of law that are under contention.

Professor Martin Krygier is the Gordon Samuels Professor of Law and Social Theory and Co-Director of the Network for Interdisciplinary Studies of Law at the University of New South Wales.  Though Professor Krygier was born in Sydney, his parents were born in Warsaw, the capital of Poland in 1917 and experienced the impact of communism first hand. As a result, his field of expertise is the rule of law in former Communist countries, especially Eastern European countries and has become one of Australia’s foremost thinkers on the rule of law.

Professor Krygier has had a long association and friendship with the Rule of Law Institute and it is with great pleasure that we spoke to him about the rule of law in Poland and Hungary. 

“In our interview, Professor Krygier discussed:

Decline in Democratic Processes in Hungary and Poland

Over the last 10 years the democratic processes in Hungary and Poland have declined after their leaders sought to control the “central institutions which might temper their power or restrain their power. They do it in a very systematic way and very often in a very similar way.  So some of the things that have been done in Hungary and Poland are what was done before them in Turkey, done in other countries like Venezuela.”

In Hungary with a constitutional majority, those in power have been able to lawfully amend the Constitution and then took over the Constitutional Court.  After that, they got “institutional control over the ordinary courts .. [they also] went after a number of independent institutions, central bank,  ombudsman’s office, prosecutor,  media – it’s got almost all the media.”

“So roughly, it’s a power grab by the government but it’s a different power grab from what we’re used to in that part of the world historically and what the Russians are doing now. It’s not a violent power grab,  and this is important for the rule of law- it’s not a confessedly anti legal programme. These people don’t believe in liberties but they are using law. That’s very, very important.“

Cultural Issues rather than Institutional design

“I think that’s one of the big mistakes that the world made after 1989-  to think that if you had bad institutions, the solution is simply to put in a good institution.  So you have these models around the world. My view is that in the early 90s, we were so confident that the Soviet game was up, there was only one game left in town.  It was ours, but we didn’t really have to argue it, we just had to install it. And in countries with different traditions you can see that with Putin now .. but people have to discover and learn and benefit from a change in the rules. They don’t suddenly become different people. We spent a lot more time installing then we did explaining what the virtues of these different systems are.”

Showdown with the EU regarding funding and decline in democracy

The European Union has the power to cut any funding it provides to member states whose rule of law violations could interfere with the sound financial management of that funding. Simply put, if they are concerned that the EU funds fall into ‘unsafe hands’ due to breaches in the rule of law, they can stop the funding.

In February 2022,  the European Court of Justice rejected Poland and Hungary’s objections to a 2020 regulation that allows the European Union to cut some member state funding based on rule of law performance.

“It’s important to see those restrictions. So they’re saying ‘we’re not authorising the withholding of funds because of the situation of the rule of law in this country,  we’re saying funds are going to be withheld if the situation has potential effects on the use of those funds’. Now, that was the regulation the Poles and Hungarians sued to say that it was illegal under the European law and the court resoundingly but limitedly said it’s legal for this purpose.”

“The strength of the EU is still being tested.. the kind of legalism of these regimes is that they keep trying to come back to the EU and said ‘look we’ve done nothing the breaks law here’ even though it’s blindingly obvious that what they’re doing is using the law what they call rule by law … the strength of the EU is still being tested … this is probably not going to be the last that we’ve heard about this I fear”

What can we learn from what is happening in Eastern Europe

“The goal of the rule of law, the idea that power should be tempered and restrained…  The emphasis should be on the values .. rather than the particular institutions.  For me, they don’t matter too much because you can replace them so long as people are hemmed in by the rules of the game. Whereas in Hungary and Poland, they look at the rules of the game and they say ‘how can we game them?'”

“For me, the rule of law exists to the extent that a guy who put in a tender for a job doesn’t know from the start that he’s going to get it … uncertainty is important.  You know the rule of law exists when you’ve got rules, which means that you know the rules but a lot of outcomes are uncertain.” In Hungary, they have fixed the outcomes of government tenders and the “mates” of those in power have “made a motza out of the regime.”  “Packing various semi-bodies or allegedly public bodies with your mates is a worry… if the law doesn’t really count in the decisions people make, it’s not a purely institutional matter because most of them will never get into a court.”

Eastern Europe in the front line battle for the rule of law

In the Australian newspaper, Chris Merritt wrote:

“Ukraine is not the only front in this battle. Another struggle is raging just across the border in Poland, which is having difficulty shaking off its authoritarian past.

But Poland, as part of the European Union, is now subject to the jurisdiction of the European Court of Justice. And that court has just strengthened the hand of those Poles who have been trying to protect the independence of a judiciary that has been under attack from the ruling Law and Justice Party.

On February 16, the European Court rejected a challenge from Poland and Hungary to an EU regulation that punishes violations of the rule of law by withholding funds. The court’s logic was sound: if money from the EU is not protected by the rule of law it can more easily go astray.

Poland, supported by Hungary, was pitted against the European Parliament and the Council of the European Union. the judgment is a powerful defence of the rule of law. It says:

“The concept of ‘the rule of law’ requires a system of certain and foreseeable law, where everyone has the right to be treated by all decision-makers with dignity, equality and rationality and in accordance with the laws, and to have the opportunity to challenge decisions before independent and impartial courts through fair procedures.”

It provides a timely benchmark for this country, where the presumption of innocence and the right to a fair trial have long been under attack in the most populous state.”

In 2019, the Rule of Law Institute discussed breaches of the Rule of Law in Poland

The highest court in the European Union has ruled that Poland has acted contrary to the rule of law by enacting legislation which lowered the retirement age of judges to 65 years.  The legislation in question was seen as part of a sustained attack on judicial independence by the Polish Parliament.

Judicial independence is one of a number of principles of the rule of law and has been described by Ursula von der Leyen (European Commission president-designate) as the “jewel in the crown” of the European Union.

It is necessary to say a little about the Polish decision before commenting on whether Australia’s High Court would reach a similar conclusion if there was an attack on judicial independence through an attempt to “stack” the Court.

The highest court in the European Union, the Court of Justice of the European Union, handed down its decision on 24 June 2019.  The Polish authorities had been criticised for harassing and disciplining judges who they considered to be unfavourable to their cause.  The particular legislation provided that all judges of their Supreme Court, the Sąd Najwyższy, the equivalent of our High Court, were obliged to retire on reaching the age of 65 years, and not, as previously, 70.  On reaching 65 a judge could have his term extended up to a further 5 years by the President of Poland.

Both provisions, the lowering of the retirement age and the provision enabling the President to extend the term of a judge, were challenged by the Polish Supreme Court judges on the basis that they breached the rule of law and in particular the principle of judicial independence and the immovability of judges.

The judges pointed to Article 2 of the Treaty on European Union which expressly provided that the Union is founded on values, including the rule of law, that Article 19(1) of the Treaty on European Union required member states to provide remedies sufficient to ensure effective legal protection in the fields covered by Union Law and finally, Article 47 of the Charter of Fundamental Rights of the European Union which provided that every individual is entitled to a fair and public hearing within a reasonable time by an impartial and independent tribunal.

The Court of Justice of the European Union reached a conclusion that Article 19(1), read in the light of Article 47, required the preservation of the independence of the Supreme Court of Poland which had been infringed by the legislation.

It was not the lowering of the retirement age by itself which resulted in the infringement but that the judges who were appointed as judges before the law entered into force were subject to the new retirement provision.  This was seen as an attack on the principle of irremovability which is essential to the independence of the judiciary.  It followed that Article 19(1) had been breached.

In conferring on the President of Poland the discretion to extend the term of a judge past 65 years, the Court reasoned that the Supreme Court was no longer providing the guarantee that it acted impartially and independently.  A reasonable doubt would arise as to the imperviousness of the judges concerned to external factors and as to the neutrality with respect to any interests before them. Accordingly, Article 19(1) was breached by the second provision.

Articles 2 and 47 do not apply to Australia as are not part of the European Union.  Nor is it subject to the provisions of an overriding Bill of Rights.  Any and all protection has to be found in the express or implied terms of the Australian Constitution.

Chapter III of the Australian Constitution expressly deals with the Judicature and, in particular, for the term of a High Court justice to expire on reaching 70 years and, except for misbehavior or incapacity, not earlier. It also includes a provision to ensure changes to the retirement age of Justices does not affect the term of offices of Justices under an appointment made before the changes to the retirement age.  An Australian Parliament which is minded to “stack” the High Court is prevented by these provisions from getting rid of justices by lowering the retirement age, but what if it attempted to increase the numbers of justices from 7 to 15 and appointed judges more to its liking?

In 1937, President Franklin Delano Roosevelt sought to do just this and attempted to “stack” the US supreme Court to overcome the concern that a majority of the judges were opposed to New Deal legislation.  He announced that the extra judges … “will act as Justices “ and “save our national Constitution from hardening of the judicial arteries.”  His plan was subject to a great deal of protests and never tested by reason of the retirement of one of the justices in the majority.

“Stacking” of the High Court is not expressly dealt with in the Constitution.  But the independence of the Judicature is assumed and is critical.  In such circumstances, where there is an attack on the independence, would the Court rule that the attempt is implicitly prohibited by Chapter III of the Constitution?

Previous analysis of the status of judicial independence in Poland see our blog posts from 2016 and earlier this year.