Judges: EU Double Standards!
"EU lacks teeth in its promotion of the rule of law", according to an article in the Irish Times on November 10th. The Rule of Law in question refers to the appointment of judges in national Courts by the elected national Governments. Hungary and Poland are held to be in breach of the rule of law because their nationally-elected Governments want some influence on the way national law is applied in the national courts. Ireland has been to the fore in insisting that the Polish Courts should be sealed off from the influence of Polish Governments. At the same time Irish politicians are discussing whether, by action in the Dail, they will throw off the Bench a Judge who has broken no law. There is no doubt that the Dail has the Constitutional authority to unmake him as a Judge, and that no other institution of the state has the authority to do it. Irish Judges are appointed by the Government and are removable by the Parliament. And, if we use the language being applied to the Poles, we must say that that is a complete Populist-nationalist subversion of the principle of the rule of law in the form asserted by the EU in recent years. Double standards? Not according to an article in the Summer issue of the Jesuit magazine, Studies by Senior Counsel and former Attorney-General Paul Gallagher. (And, by the way, the Attorney General, who is a politician, has by convention the right to make himself a Judge by taking any seat on the Bench that falls vacant during his period in political office). Gallagher writes:
"The CJEU [Court of Justice of the European Union] held that national law passed by a Member State after entry into the European Community could not be given effect to, if and in so far as it was contrary to European law. This affirmation of the supremacy of EU law was central to the development of the supranational legal order, which in turn was essential to the development of the European Union as we know it today. This development was based on a teleological interpretation of the law rather than on a strict textual interpretation. The text of the Treaty was silent on the supremacy of EU law" (Studies. 'Peter Sutherland And The European Project’). (The Cambridge Dictionary, under 'teleological' says: "The European Court's method of interpreting Community legal text is primarily teleological, that is to say the interpretation of a provision on the basis of its object and purpose”.) Gallagher comments: "This month the CJEU ordered Poland to suspend the disciplinary apparatus introduced by Poland to discipline judges…" Ireland demands that Polish judges should be placed out of reach of Polish democracy, even though it establishes arm's length disciplinary procedures, while the Irish democracy can sack judges by a vote in the Oireachtas. But that is in order, because the supremacy of politicians over judges was established in Ireland before it joined the EU. The Poles had neglected to make such an arrangement before joining the EU and it would therefore be a breach of the rule of law—according to a ruling of the European Court—if they made it now! How could it have happened that the Poles failed to establish political supremacy in their democracy before joining the EU? It happened because they were in the process of leaving one system of political culture and entering another, and they had in their history over many centuries never had the experience of establishing a viable State. They had lived within Empires, with brief periods of independence that were anarchic or erratic. They had been effective at protest against government but not at conducting government itself. Gallagher observes: "Nationalism is a device of political mobilization in post-communist societies. Accession to the EU was permitted in order to consolidate the democratic institutions in those states. However the new democracy in these countries relies partly on the nationalistic idea which is in tension with accession", —and this challenges the rule of law. The gist of this evasive comment is that the nationalist development of Poland and Hungary as capitalist democracies lay in the future when they joined the EU, and that this is problematical for the anti-nationalist rule of law developed by the EU. But Poland and Hungary were not so much "permitted" to join the EU as recruited into it. The purpose was to consolidate their detachment from the Soviet system. They were part of the Soviet system after 1945 because it was the Soviet system—and not internal democratic forces in Western Europe—that had demolished the Nazi system by defeating it in war. Western Europe, which became the European Union, was constructed in the medium of the Cold War antagonism of the American-hegemonised capitalist system with the Soviet communist system. The propaganda of the West European states directed towards the East European states was designed to encourage nationalism in them. When the Soviet system began to break up the concern of the EU was to consolidate the nationalist antagonism of Poland and Hungary towards Russia. National independence was the effective meaning of democracy then for the EU, as far as Poland and Hungary were concerned. And the EU continues to encourage hostile nationalist attitudes towards Russia from these countries in various ways. However, at the same time, the attitude of the EU now is that Poland and Hungary, having been saved from Russia by the incitement of nationalist passions, must cease to be nationalist, and must accept sophisticated democratic arrangements from the EU which do not apply in the older states of the EU.