The functioning of illiberal constitutionalism: Polish and Hungarian case studies on judicial independence

The European Union, notwithstanding its failures, particularly in the field of the Rule of Law, imposes particular political albeit rather weak legal constraints on the Hungarian and Polish political leaderships. There is a positive law and regulated law-making process at the EU level, which no domestic populist leader can hijack in the same way as they have done in their particular countries. This phenomenon also demands an enforcement mechanism, e.g., preliminary ruling procedure. This paper examines if the Polish and the Hungarian preliminary ruling procedures concerning the independence of the judiciary and the political, legislative, and judicial reactions they have generated in Poland and Hungary, which focus mainly on accountability, still exemplify the business-as-usual functioning of illiberal constitutionalism (instrumental use of the law, symbolic legislation and political back off) or not (slipping closer to or, actually, into authoritarianism).

Romanian Judicial independence under pressure

Creeping authoritarianism in the eastern wing of Europe put under pressure the rule of law. Defense of judicial independence calls for new legal measures against these countries. In Romania, often the independence of judges is related to anticorruption actions but the topic should be analysed under a broader lens. In particular, the concept of “the independence of judges” covers the entire judicial system and not only as individual component. The legislator has designed a system that ensures both a functional and a financial independence. In recent times, Romanian Constitutional Court took position in highlighting the concept. Moreover, referring to constitutional provisions, the Court hold the independence of judges as guarantee of the “non-obedience” of the judges of another powers. In this sense, it will be presented, first, meaning of judicial independence in the Romanian constitutional traditions and, second, the Court position and its attempts to avoid authoritarian tendencies.

Judicial Accountability – its manifestations and paradoxes

Accountability in constitutional law may lead to confusion with other categories: political and legal responsibility, audit, financial control. A need to develop this concept is particularly urgent regarding judiciary as a branch of public authority. Accountability, defined as the capabilities of principals to judge the performance of their agents, has two main requirements: a relationship between Principal and Agent, and conclusive Agent’s report on the performance of the assigned competences. Within Judiciary there are two Agents: judicial branch accountable for its effectiveness, and judges accountable for their decisions. But manifestations of accountability lead to some paradoxes, eg. Effectiveness cannot be measured using quantitative methods. Accountability of judges, classically guaranteed by ‚open justice’ is exposed to risks of media polarization and populism. The judicial decision as communicative acts are also exposed on the risk of communicative disturbances (noises).

Judicial independence and accountability in Kenya: the impact of constitutional reform and implementation, including judicial vetting

During the 2000s, the Kenyan judiciary attracted low levels of trust in expert assessments and in public surveys. Systemic corruption and political subservience were common criticisms. Yet since the adoption of the 2010 Constitution the judiciary is widely seen as having increased its independence and accountability. For many, this is exemplified by the 2017 Supreme Court decision that nullified the election victory of an incumbent President, despite political pressure. This paper considers the impact of constitutional reform and implementation on the judiciary. Starting with the old constitution that allowed governments to manipulate judicial appointments and discipline, the paper considers how the 2010 Constitution reformed the Judicial Service Commission and its appointment and discipline processes, while requiring all existing judges to be vetted. Ironically, renewed political pressure on the current Kenyan judiciary provides some evidence of the success of these reforms.

Judicial Accountability in Brazil: A Case of Unconstitutional Ineffectiveness

Brazilian Judicial Council (BJC) dates back to 2004. A constitutional reform of the judicial branch created an institution to oversee judges and courts on administrative and budgetary matters, as also on judges’ functional duties. However, the discourse on judicial independence that sided the Brazilian Constitution of 1988 outshined an effective liability. This paper aims at debating the overall role of the BJC in its sixteenth anniversary. It proposes a case study focusing on the activity of two actors: former federal judge Sérgio Moro and present federal judge Marcelo Bretas. Their cases are instructive for they manifestly adopted political postures that should call for juridical liability. Nevertheless, several procedures that were ignited in the BJC were dismissed. The paper intends to analyze the procedures connected to Brazilian mega politics (Hirschl) in order to check when specific political positions do not call for responsibility in the BJC caselaw.