The Polish government continues to clash with the EU over its attempts to revamp its domestic legal system, most recently bringing in legislation that threatens the independence of the courts.
This is just the latest episode in a wider series of reforms through which the populist right-wing government (the Law and Justice party) has consolidated its powers – including tightening its controls on the civil service, and introducing legislation to control the media.
The latest piece of legislation, which was signed off by president Andrzej Duda, is the most controversial yet. It permits the government to play a significant role in shaping the judiciary. Politicians will even be able to choose members of the judiciary council – the body responsible for appointing judges.
At the heart of the disagreement between Poland and the EU is a disagreement about the separation of powers. The separation of powers is a liberal doctrine, which the EU takes very seriously. It was developed initially by political thinkers such as John Locke and Montesquieu .
The doctrine is concerned with how the state’s power should be distributed. It holds that the three arms of the state – the executive, the judiciary and the legislature – should, to a greater or lesser extent, be kept separate. That way, they are able to hold one another to account.
The legislature creates the law, the executive puts the law into force and the judiciary interprets and applies the law in the courts. For Montesquieu, who presents the most detailed formulation of the separation of powers, this compartmentalisation of state power is essential if governments are to be accountable. And this is important, he believed, because only accountable governments protect the liberty of citizens.
This theory about the separation of state power went on to have a formative effect on the development of modern day democracies. And it’s this vision of the tripartite separation of state power that is essential to the EU’s argument against the Polish reforms.
If Montesquieu is right that unaccountable governments curtail liberties, then the reforms in Poland should worry us. By allowing the ruling party to reform – and to thereby shape – the judiciary, the separation of powers is not being respected in Poland. Suddenly, the government has a significant say over who applies and enforces the laws they create. Suddenly, the government has discretion over who holds them to account. Suddenly, it looks as though the government is not very accountable to anyone at all.
And yet, we might also think that Montesquieu – and with him the EU – is wrong on this.
We may, for example, worry about how the doctrine sits in relation to democracy. For what the doctrine asks of us is to set limits on the power of democratically elected governments. The doctrine permits unelected judges to stop elected governments from doing the things that a majority of people have elected them to do. As such, the doctrine recommends curtailing the will of the people. The doctrine, in short, is undemocratic. And, indeed, these complaints form the substance of the response to the EU from Poland, and those (like Hungary) who have rallied in support.
The separation of powers looks to be at once an important means to secure liberty from arbitrary rule, while being at the same time a doctrine that is fundamentally undemocratic. At the core of the disagreement between Poland and the EU is this deeper ideological disagreement about the nature and composition of liberal democracy.
Lessons from history
I want to briefly give two reasons as to why we should take the doctrine of the separation of powers seriously – and why the Polish reforms are thus so troubling.
The first reason is historical precedent. Our historical experience of governments taking (or granting themselves) control of the judiciary (and thereby violating the separation of powers) is not a happy one.
Take Argentina in the late 1970s. The right-wing junta there engaged in “forced disappearances”, against communists and other opponents. It arrested them arbitrarily, detained them en masse without trial and submitted them to torture and killing. To implement this policy without challenge, the junta restaffed the judiciary with members who were sympathetic to its aims, and who were forced to swear an oath of loyalty to the regime. It was through violating the separation of powers that the Argentine government was able to act unaccountably, to cement its rule and to license violent and oppressive policies.
The second reason is that the threat of majoritarianism – something which is inherent to democracy – should worry us. Majoritarianism occurs when a majority-supported government legislates in ways that suppress or otherwise harm a minority. The separation of powers is designed to prevent the iniquities of majority rule. And, along with other core, legally institutionalised, liberal measures such as free speech, judicial review, legal representation and fair trial, it forms the sometimes very thin protective layer between the state and the citizen. Without these measures, an untrammelled government, particularly in our populist political climate, becomes a very real, oppressive threat.
History tells us (as it no doubt told Locke and Montiesqueu) that it’s correct to think that unaccountable governments suppress citizens, and worse. And their doctrine of the separation of power gives us a plausible and effective remedy which we know works to restrict state power and protect liberty. Both the lessons of history, and the very real concern we should have about omnipotent, unrestricted majority legislatures, show us that the doctrine – developed through trial and error in the emerging constitutional democracies of 17th and 18th century Europe and America – is still essential to accountable, liberty-respecting governance.
This is a lesson the Polish government should not take lightly.