Legal scholars from Poland, Hungary warn of judicial overhaul’s dangers to democracy

At IDI event, experts say ‘constitutional capture’ in their countries began with ‘dismantlement of judicial independence’; ex-Irish justice minister urges halt to ‘regressive’ push

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Prof. Gábor Halmai, a constitutional scholar from the Robert Schuman Centre of Advanced Studies at European University Institute, speaks at a conference held by the Israel Democracy Institute in Jerusalem, March 26, 2023. (Oded Karni)
Prof. Gábor Halmai, a constitutional scholar from the Robert Schuman Centre of Advanced Studies at European University Institute, speaks at a conference held by the Israel Democracy Institute in Jerusalem, March 26, 2023. (Oded Karni)

Constitutional scholars from Poland and Hungary, two countries seen to have undergone democratic backsliding in recent years, warned that Israel was facing the same dangers, as the government of Prime Minister Benjamin Netanyahu has pressed ahead with plans to politicize most judicial appointments and neuter the High Court of Justice.

Speaking at a conference of the Israel Democracy Institute on Sunday, the scholars asserted that efforts to undermine the independence of the judiciary in their countries had been the first goal of the current ruling parties as soon as they took power.

“It all started with the Polish constitutional court. And this is a major takeaway lesson for Israel,” said Prof. Tomasz Tadeusz Koncewicz, director of the Department of European and Comparative Law at the University of Gdansk in Poland, describing what he said had been a process of “constitutional capture” in his country since the ruling Law and Justice party took power in 2015.

“If you really want to capture your democracy you always start with the most important guardrail, and this is judicial review,” said Koncewicz. “The ruling majority understood that if you have an independent court in place, the constitutional capture will never work because the constitutional court would always stand in the way.”

Prof. Gábor Halmai, an expert in constitutional law from the European University Institute, said similarly that the Fidesz party in Hungary had, like the Law and Justice party in Poland, targeted the country’s constitutional court in its effort to undermine democratic safeguards after being elected to office in 2010.

“This playbook in the case of Poland has been written by Viktor Orban, the prime minister of Hungary,” said Halmai.

“The very first thing they did after the 2010 election was to change the nomination and election procedure for constitutional court justices,” said Halmai, who noted that the Orban government then went about changing the composition of that court, and others.

Also speaking at what the IDI billed as an “emergency conference,” former Irish justice minister Alan Shatter described Israel’s judicial overhaul legislation as “politicized, opportunistic, ill-thought-out [and] regressive,” and said the entire package should “instantly be put in cold storage.”

Former Irish justice minister Alan Shatter speaks at a conference held by the Israel Democracy Institute in Jerusalem, March 26, 2023. (Oded Karni)

Shatter dismissed comparisons made by proponents of the government’s controversial legislation, which would include giving the coalition control over judicial appointments, to the Irish judicial selection process, arguing that the Irish system was almost completely apolitical.

The key architect of the government’s legislation, MK Simcha Rothman, has claimed on several occasions that in countries such as Ireland and others, politicians have control over judicial appointments and that such a system was therefore also appropriate for Israel.

Not like Ireland

Speaking with IDI constitutional scholar Prof. Suzie Navot, Shatter, who served as Ireland’s justice minister from 2011 to 2014, laid out the method by which Ireland selects judges to its various courts, including the Supreme Court.

He noted that in Ireland the large majority of members on its Judicial Appointments Advisory Board are either judges or legal professionals, and that there are no politicians at all on the panel, although three of the members are appointed by the justice minister. That board submits a list of recommended candidates for a judicial post to the justice minister, who then submits his own recommendation from that list to the cabinet for approval, he explained.

Shatter pointed out that even though in theory the government could appoint someone other than a candidate recommended by the board for the position in question, such an appointment had never occurred.

By contrast, the legislation that the Israeli government is poised to approve would give an automatic majority to the governing coalition on the Judicial Selection Committee, and likely allow it to control all lower court appointments and the large majority of Supreme Court appointments.

Shatter said the government’s proposals were “fomenting division and upsetting Israel’s supporters and allies across the globe,” and asserted that the coalition should instead engage in a consultative process to draw up a written constitution for the Jewish state.

Israelis opposed to Prime Minister Benjamin Netanyahu’s judicial overhaul plan set up bonfires and block a highway during a protest moments after he fired Defense Minister Yoav Gallant, in Tel Aviv, March 26, 2023. (AP/Oren Ziv)

“A politicized, opportunistic, ill-thought-out, regressive set of piecemeal proposed judicial and legal reforms should instantly be put in cold storage and transparent steps taken through a consultative assembly to create a comprehensive constitution that respects the rule of law, incorporates checks and balances, adopts the values proclaimed in the Declaration of Independence, guarantees the independence of the judiciary, protects human rights, and prescribes the powers and legal relationship between the government, the Knesset and the courts and the limits of those powers,” said Shatter.

Shatter argued that instead of the current legislative package, a “consultative assembly” should be formed to draw up a comprehensive constitution that would “respect the rule of law, incorporate checks and balances,” and adopt “the values proclaimed in the Declaration of Independence.”

He called on the government to “embrace” democracy, take time to engage in a process to draw up a new constitution, and put such a document to a national referendum when it is finalized.

“Create and propose for consideration by the Israeli people in a referendum what should be a constitution for all the people of Israel of every background that guarantees equality of treatment for all and respects diversity, whilst also recognizing Israel as the democratic nation-state of the Jewish people,” said the former Irish justice minister.

Lessons from Poland and Hungary

In Poland, Koncewicz said, the ruling Law and Justice party had “ripped out” the heart of Poland’s constitutional court by appointing political allies of the party to the bench, so that the court now sees itself as “as ally of parliament” and “an enabler of political power” instead of an institution designed to check legislative power.

“Once you don’t have a Supreme Court that is independent of the executive – this is where the constitutional capture that has happened in Poland kicks in,” he said.

Prof. Tomasz Tadeusz Koncewicz, Director of the Department of European and Comparative Law at the University of Gdansk, speaks at a conference held by the Israel Democracy Institute in Jerusalem, March 26, 2023. (Oded Karni)

In Hungary, said Halmai, Orban and his Fidesz party have since 2010 substantially amended Hungary’s constitution, including provisions that limited the ability of the country’s constitutional court to strike down unconstitutional laws, and also lowered the retirement age for judges allowing the government to appoint political allies to the judiciary, including the constitutional court.

The new constitutional court justices do not work independently, Halmai said, “because the selection process is not only political, it lacks any kind of merit,” and the justices appointed by the Orban government “are not experts in constitutional law” or respected and professional judges familiar with constitutional law.

“Today, we have no free and fair elections in Hungary, we have no free media, we have no free civil society organizations,” concluded Halmai in a final statement.

“[For] Democracy to be kept alive in Israel you have to somehow stop using the playbook of autocrats like Orban or others, which always starts with dismantling judicial independence. If you stop this process in that very first chapter, democracy will prevail in Israel,” he said.

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