The Polish case and what it means for Israel’s legal bulwark

The attorney-general put it best: a weakened legal system cannot effectively protect the rule of law within Israel.

By YUVAL SHANY
Updated: JULY 15, 2018 06:30
Flag of Poland, variant polish coat of arms. (photo credit: OLEK REMESZ/ WIKEPEDIA COMMONS)
Flag of Poland, variant polish coat of arms.
(photo credit: OLEK REMESZ/ WIKEPEDIA COMMONS)
In his recent speech to the Israel Bar Association Conference, Attorney-General Avichai Mandelblit warned that attempts to undermine various legal institutions – with the Supreme Court foremost among them – are not only liable to harm the rule of law in Israel, but also erode the court’s ability to serve as a bulwark against the possibility of international “lawfare.” Developments over the last few weeks in a completely different legal arena clearly demonstrate the close connection between the erosion of a court’s powers to its country’s international standing and legal legitimacy.
The Court of Justice of the European Union (the EU’s top judicial authority) is currently hearing a case on whether the Irish government can refuse to extradite a Polish citizen suspected of drug offenses to his home country. According to EU legislation, member states are obligated to extradite to one another criminal suspects based on the principle of “mutual trust” between member states, which assumes that all EU states are committed to the same high standards of respecting criminal suspects’ rights. However, the Irish judge who presided over the extradition hearing in question refused the application, and referred the case to the European Court’s reasoning that she could not recognize the Polish legal system as an independent system worthy of trust to which she could extradite in good conscience a criminal suspect. 
Underlying the Irish judge’s concerns is the fact that over the past two and a half years the Polish parliament has passed 13 separate bills that have each eroded the powers of the country’s courts, in addition to detrimental steps taken by the government in this same effort. Among other things, new legislation has lowered the retirement age for serving judges, significantly increased the influence politicians have over the judicial appointment process, and, in violation of the Polish constitution, enforced a special majority requirement in the country’s constitutional court to strike down parliamentary legislation. In addition, the current government does not recognize justices of the constitutional court who were appointed by the previous government towards the end of its term, and refuses to publish the rulings reached by the court in the “tainted” cases in which these judges participated.
Last December, in response to these actions, and in an unprecedented move, the European Commission began proceedings to strip Poland of its voting rights in EU institutions. This initiative was driven by the Commission’s view that the actions of the Polish government represent a real threat to the country’s rule of law, and constitute a serious breach of the terms of EU membership. If these proceedings are completed, Poland’s EU membership will be subject to limitations: it will continue to bear all the obligations of a member state, but will lose a number of important privileges.
Returning to the Israeli case, it is striking to note that 12 private members’ bills submitted in the current Knesset have been clearly designed or expected to dilute the Supreme Court’s power. These proposals include not only the high-profile “Override Clause,” but additional bills that could limit the right to legal standing before the court, reject the principle of reasonableness as a basis of judicial review of government action, reduce supreme justices’ term of service, and increase politicians’ influence over the judicial appointment process, and in particular over the appointment of the president of the Supreme Court. Beyond these 12 proposals, there have been a number of legislative attempts to undermine other ‘gatekeepers’ of Israeli democracy, such as the Legal Counsels Bill – allowing politicized appointment of legal advisors in government ministries – and the Police Recommendations Law, which was passed recently and limits the publicity given to the police recommendations in corruption cases.
Even if it is reasonable to assume that the majority of the submitted bills will not become binding law, they still feed a fraudulent public discourse that derides the Supreme Court as being “too independent,” and consequently provide political legitimacy for actions that harm the Court’s independence. Certain measures intended to strengthen the government’s hand and weaken that of the judicial branch have already been adopted. For example, the current coalition has in effect taken control of all four of the “political” seats on the committee for judicial appointments, in contravention of the accepted practice of reserving one seat for the opposition, and the Ministerial Committee for Legislation has decided to support several of the bills that take aim at weakening the legal system.
The Polish case clearly demonstrates that clipping the wings of a country’s courts not only directly and substantially harms the country’s rule of law, it is also detrimental to its international standing. By narrowing the powers of the judiciary, the government is subjecting its own courts to direct repercussions under international law, since the latter attaches legal effect to a domestic court’s rulings only to the extent it is independent from the executive and legislative branches. Thus, the legitimacy that the International Criminal Court allocates towards internal Israeli procedures to investigate and try suspects of war crimes will be harmed should the government allow the legal system to become dependent on the executive branch. The attorney-general put it best: a weakened legal system cannot effectively protect the rule of law within Israel, and cannot serve as a line of defense for the state against international legal intervention in the region’s conflicts.
Prof. Yuval Shany is the Vice President of the Israel Democracy Institute, Professor of Law at the Hebrew University of Jerusalem, and the new Chair of the United Nations Human Rights Committee.