With a
state government rapidly moving on legislation that would end the independence
of that state’s judiciary, the E.U. Commission announced that it would invoke
Article 7 against that state. An independent judiciary is a staple of
democratic governance, and is thus required of a state (as well as at the
federal level, in regard to the independence of the European Court of Justice
from the other branches of the federal government). If invoked, Article 7 of the E.U.’s basic
(i.e., constitutional) law would deprive the state of Poland of its voting
rights at the federal level. The independence of state courts is that important in the E.U., and yet for
the article to go into effect, the European Council’s vote, excepting Poland,
must be unanimous. Already, the governor of the state of Hungary had made clear
that he would vote against invoking the article—that state having its own
constitutional troubles with the E.U. Commission and being friendly with Poland.
In other words, two conflicts of
interest came into play immediately, even as the Polish legislature was still voting
on the proposed judicial reform.
The
legislation “would force all the [state’s] top judges to resign, except those [the
party in power] appointed.” In fact, the government would have “control over
who can even be considered for a judgeship.”[1] In response, Frans Timmermans, first vice
president of the European Commission, said the legislation “would seriously
erode the independence of the Polish judiciary” and in fact “abolish any
remaining judicial independence and put the judiciary under full political
control of the government.”[2] Such a condition would
violate the basic principles of the European Union, which, like the United
States, requires every state to have the republic form of government, which
includes an independent judiciary to protect citizens from governmental tyranny
at the expense of liberty.
Whereas it
is easy to criticize the Polish legislature for its proposal to upend a vital
element of a republic, the E.U. itself was culpable too. Specifically, to
require that every state except the offending state agree before Article 7 can
be enforced even on a matter as important
as an independent judiciary in a state—in making it so difficult—the E.U. willfully makes itself vulnerable to its own
defeat from a democratic standpoint. Common sense alone would say that very
serious violations should not be subject to extremely high hurdles. Lest it be
argued that unanimity can be expected if a violation is truly very serious, the
Hungarian governor’s willingness to exploit conflicts of interest suggests that
it is pure folly to pretend that alliances do not exist between states in a
federal union.
In general, such a union that permits itself to be hamstrung in
enforcing its basic law is charity case befitting Nietzsche’s conception of
weakness by abnegation. In other words, the E.U. looks pathetic in subjecting
the enforcement of its basic law to such high hurdles that allow the
exploitation of conflicts of interest to protect an unconstitutional state
government. More generally, the self-inflicted wound in the federal enforcement
powers—a wound stemming from still too much state sovereignty—blocks the
check-and-balance benefit of federalism. In a healthy federal system, the
federal level can provide a check on excesses on the state level, and vice
versa. The “dual-sovereignty” in the system cannot be so unbalanced that one
state can block federal enforcement against another state. If the E.U. state
governments believe that the E.U.’s basic law is important to the Union in being
able to function, let alone continue to exist, then those same governments
should be willing to let go of unanimity in the enforcement of federal law. Put another way, the
federal level should not have to rely so much on the state level—even one particular state—in being able
to enforce federal basic law. Or is
such law really not very important to the state government officials?
[1]
Rick Lyman, “In
Poland, an Assault on the Courts Provokes Outrage,” The New York Times, July 19, 2017.
[2]
Ibid.
