In a historic move today, the European Commission has initiated a procedure against Poland based on the clear risk of a serious breach of the rule of law. From the official press release:
Despite repeated efforts, for almost two years, to engage the Polish authorities in a constructive dialogue in the context of the Rule of Law Framework, the Commission has today concluded that there is a clear risk of a serious breach of the rule of law in Poland.
The Commission is therefore proposing to the Council to adopt a decision under Article 7(1) of the Treaty on European Union (see Annex II).
The European Commission is taking action to protect the rule of law in Europe. Judicial reforms in Poland mean that the country’s judiciary is now under the political control of the ruling majority. In the absence of judicial independence, serious questions are raised about the effective application of EU law, from the protection of investments to the mutual recognition of decisions in areas as diverse as child custody disputes or the execution of European Arrest Warrants.
This is not something that can or should be taken lightly. In a local (Maltese) context, this should put paid to the myth that the eyes of the EU institutions are only focused on Malta (vide Pana Committee and recent Rule of Law task force) and that they are focused on Malta because of the work of some “traitors”. It should also put paid to the yarn being spun in some quarters that the rule of law is some “cliche'” that only serves the ulterior hidden purposes of power-hungry groups eager to overturn the current status.
Interestingly the Commission focuses on the judicial reforms in Poland that have severely prejudiced the independence of the judiciary – the main default in the state of the rule of law in Poland is seen to be the judicial branch. The deficiencies are in the powers of appointment and removal that have been arrogated to the executive in recent legislative changes.
Why should Malta care?
Malta’s current system of appointment, removal and scrutiny of the judiciary is already flawed as it is. All the talk about reform, even in the judicial sector, remains just that – talk. Over the years the loopholes in the system that stem from the excessive discretion of an all-powerful judiciary have only been worsened. Our Prime Minister may “take note” in some cases (in answer to the Chief Justice for example) or “be perplexed” in others (as when he feigns ignorance of the consequences of the Ombudsman’s warnings regarding the internal kangaroo courts being set up within the public service). There is only so long that these lies can hold though.
Alarm bells will continue to be rung – if not by a spineless opposition that seems to be ever more hell bent on joining the populist battle, at least by a wider civil society made up of varied exponents and NGOs that feel it is their duty to act as Malta’s last conscience. Poland had long been playing with fire and is now in direct line for losing certain rights under the EU system. Malta could very well be next.
In the eighties Malta looked closely and learnt lessons from the happenings in Warsaw and Gdansk. The solidarność (solidarity) movement was adopted as a precursor for the calls of Work, Justice and Liberty that brought about change from a tired system. This time round we might do well to take heed and see how Poland solves its problems with praworządność (rule of law).
Now. Before it is too late.