Fundamental European values under pressure – Protecting the judiciary from partisan influence
Assaults on the rule of law can presently be observed in many democratic countries, including, amongst others, Member States of the European Union. Frequently it is the courts that are under attack. Judicial reforms undertaken by Poland’s ruling national-conservative Law and Justice (PiS) party have led to ongoing dispute in Brussels. The risk of political capture is faced particularly by high courts, as has been demonstrated by developments in Hungary, Turkey and the USA. Would such an exertion of political influence be possible also in Germany?
The restructuring of the Polish judicial system as being pursued by the PiS government tests the resilience of European Union and the underlying values on which it stands. The EU Commission views the reforms as an attack on judicial independence and the separation of powers. On 29 April 2020, the Brussels authorities opened a fourth infringement procedure against Poland, with the most recent procedure addressing a law on the disciplining of judges.
Konrad Duden, senior research fellow at the Institute, has conducted a comparative study focusing on the developments in Poland and the United States. In both countries, political parties have used their parliamentary majorities to increase their influence over the high courts. Rules on the appointment of judges were changed by the governing party by means of ordinary legislation that did not require the qualified majority that would be necessary for constitutional amendment.
High courts in the crosshairs
Some of these measures were, on their face, purely organizational in nature, but on closer inspection they reveal a creeping erosion of the separation of powers and judicial independence. For example, in Poland additional judicial posts were created on the highest court and subsequently filed by the PiS-controlled parliament. In addition, sitting judges were removed from the bench by lowering the retirement age.
In the United States, federal judges are nominated by the president and then confirmed by the Senate. Until 2013, a confirming majority of 60 per cent was required, but this was abolished by Democrats in favour of a simple majority for the election of judges below the Supreme Court level. After the Republicans won control of the Senate in 2014, they blocked numerous candidates nominated by President Obama. And in 2017 the Republican Senate-majority finally eliminated the 60 per cent majority also for Supreme Court nominations, thereby further opening the gateway for a partisan judiciary.
“In Germany as well, the highest federal courts and the Federal Constitutional Court are not fundamentally immune from unilateral, partisan influence. With a majority in the Bundestag fundamental pillars regarding the composition of courts could be changed or even eliminated,” says Duden. “Presently, the increasing diversity of the German political landscape makes it unlikely that any single party will claim an absolute majority in Parliament. But this should lead to neither a false sense of security nor inaction – in fact the opposite is true.”
He urgently recommends that the German judiciary should be protected against political capture and outlines how a balanced composition of the federal courts could be ensured through cooperation between government and opposition. Many of the pillars on which the appointment of judges currently rests are anchored in ordinary legislation. By introducing the requirement of a qualified majority for the amendment of essential rules on the composition of the courts – particularly the highest courts – a party governing with a simple majority would be unable to enact reforms serving only their own interests.
However, even protective mechanisms enshrined in the German Constitution (Grundgesetz) would reach their limits in the face of super-majorities intent on amending the Constitution in a manner contrary to the principle of separation of powers. Responsibility for upholding the rule of law must, as emphasized by Duden, always start with the citizenry – through general education, through an independent press, but also through engaging in discussion as part of our daily lives.
Konrad Duden, Richterwahl und parteipolitische Einflussnahme – Vergleichende Anregungen zum Schutz der Unabhängigkeit des Bundesverfassungsgerichts und der Obersten Bundesgerichte (The Selection of Judges and Partisan Justice – Comparative Inspiration for the Protection of the Independence of Germany's Federal Courts), Max Planck Private Law Research Paper No. 20/5