—Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law
The past week has seen the launch of an unprecedented book detailing the inner workings of the Supreme Court of Ireland, which provides potentially useful general insights into how courts deal with political attacks.[1] The new book, by a leading journalist, Ruadhán Mac Cormaic, has laid bare the dissension within the Court between 2009 and 2011 as it sought to react to government proposals to reduce judges’ salaries in the context of the State’s acute economic crisis–a measure blocked by an absolute constitutional prohibition on reductions in judicial pay (Article 35.5. 1°). The pay cut was ultimately achieved through the sole procedure for amending the Constitution, a popular referendum, passed in 2011. As Mac Cormaic reveals, although the measure was widely viewed as entirely justifiable in light of swingeing public sector pay cuts, for the Court and the wider judiciary this absolute prohibition represented one of only two constitutional protections for judicial independence–the other being security of tenure.[2]
Excerpts of the book[3] and interviews with the author[4] this week reveal the serious difficulties the Supreme Court encountered in achieving consensus on how to effectively address the perceived threat: one judge’s suggestion to directly counter the perceived attack by hiring a high-profile public relations consultant met with little approval from other Court members; slow progress with attempts to achieve voluntary payments by judges to the tax authorities, in order to keep the constitutional prohibition intact, opened a space for increasing political attacks and chipped away at public support; press statements clarifying certain mischaracterisations of judicial opposition to the measure had limited success; and the front-runner to succeed the then Chief Justice favoured a ‘softly-softly’ strategy through low-key engagement with ministers. This mixture of delay and dissension meant that, as the tug-of-war with government progressed, the battle for political and public support was lost.
In the Irish context, although this new book undoubtedly represents an unwelcome intrusion by a judiciary unused to such scrutiny, and has the potential to damage its standing, it is important not to characterise the government’s measure as an attack aimed at undermining judicial independence. Rather, it seems that it was simply viewed as a fair and common-sense solution, with no ulterior motive of damaging the judicial branch. Ireland’s political order, for all its faults, is undeniably democratic, with significant respect for the separation of powers and for the authority and independence of the judiciary. Irish judges may be under more intense scrutiny, and the Supreme Court may be suffering reputational damage, but it is not facing large-scale attack.
However, the same cannot be said of various states worldwide, where democratic decay is taking hold, and where courts are in the crosshairs of hyper-majoritarian illiberal governments that increasingly refuse to accept countermajoritarian restrictions on their power.[5] Serious and sustained attacks on courts have become all too familiar in recent years: in Europe alone we see the starkest examples in Hungary, Romania and Poland.
Taking the contemporary Polish experience as an example, the governing Law and Justice (PiS) party’s long-held plans to render the Constitutional Tribunal ‘ineffective and toothless’[6] and to exert government control of the media have brought Poland the dubious honour of being the first state to undergo the European Commission’s new ‘rule of law’ monitoring process this year.[7] This appears to have had little effect. The government has refused to address the problematic aspects of its plans identified by both the European Commission (and the Council of Europe’s Venice Commission[8]); particularly the refusal by President Duda, a close PiS ally, to swear in three Constitutional Tribunal judges appointed by the previous parliament and the attempt to install three different judges selected by the new regime. In mid-August the government rejected the Constitutional Tribunal’s judgment invalidating the reforms, which made clear the impossibility of swearing in the three ‘new’ judges, whose appointment the Tribunal had already deemed illegal.[9] As Tomasz Tadeusz Koncewicz warned in a recent blog post, the PiS may well redouble its efforts in autumn. In a summer interview the Deputy Speaker of the Polish Parliament vowed to solve the ‘problem’ of the Court and to remove judges who refuse to submit to the supremacy of the parliamentary majority. [10] How the Constitutional Tribunal itself will tackle this pressing threat is unclear. How it should tackle it is also somewhat unclear. Whether it can maintain a unified front is unclear.
Two valuable lessons can be drawn from the new Irish book for scholars and policymakers outside Ireland dealing with political attacks on courts. First, in its forensic and sustained account of the discord within the Supreme Court on how best to counter the proposed salary reduction, it provides a window into the internal institutional difficulties and lack of consensus courts can face when attempting to address external threats. Second, it provides some explanation as to why courts can often prove ineffective in countering such threats.
All too often in academic literature prescriptions for courts to address such attacks approach them as monolithic entities capable of taking strategic stances to guard their power, address attacks, and resolve crises. However, this cannot be taken for granted. As the recent Irish revelations show, such prescriptions can all too easily elide the fact that even seemingly unified courts can hide significant disagreement as to how best to address attacks. Serious threats, which might be assumed to galvanise a court around a common solution, may in fact provoke the opposite reaction. Moreover, in certain states overwhelming parliamentary majorities, government manipulation of judicial appointments, or less subtle court packing, means that stark cleavages can start to emerge among members of the constitutional or supreme court as to the role of the court and the legitimacy of government attempts to bring the judiciary to heel (seen in Hungary in the late 1990s, and now possible in Poland if the government has its way). In the context of democratic decay, unlike a robustly democratic context, judges can also be subjected to acute psychological pressure by political forces–so-called ‘political mobbing’[11]–which must have diverse effects on judges of differing dispositions. Even more distant threats to the judiciary can provoke judges to engage in unhelpful solo runs–seen in Judge Ruth Bader Ginsburg’s ill-advised ad hominem attacks on Donald Trump during July, where she cast off all pretence of constitutional propriety by describing him as a ‘faker’ and stated that she could not imagine the United States under a President Trump.[12]
The Irish revelations underscore that we cannot always expect effective pushback by courts against political attacks, whether through a lack of leadership, lack of consensus, little experience of dealing with such challenges, or insufficient appreciation of the need for a unified approach. As serious attacks on courts become more common in states suffering democratic decay, the more difficult question is whether we can provide guidance for courts that addresses this reality, and practical empirical examples of courts getting it ‘right’.
Suggested Citation: Tom Gerald Daly, Attacks on Courts: Taking Wider Lessons from Recent Irish Supreme Court Revelations, Int’l J. Const. L. Blog, Sept. 9, 2016, at: http://www.iconnectblog.com/2016/09/attacks-on-courts-taking-wider-lessons-from-recent-irish-supreme-court-revelations
Author’s Note: In the interests of transparency, it should be stated that from 2005-2011 I was the Executive Legal Officer to the Chief Justice of Ireland, a role that combines the duties of a United States judicial clerk with additional administrative, project management and international relations responsibilities.
[1] R Mac Cormaic, The Supreme Court (Penguin UK, 2016).
[2] Article 35, Constitution of Ireland. https://www.constituteproject.org/constitution/Ireland_2015?lang=en. The extent of the salary reduction (31%) was also the cause for grave concern.
[3] R Mac Cormac, ’Irish judges: the inside story’ The Irish Times 3 September 2016 http://www.irishtimes.com/news/crime-and-law/irish-judges-the-inside-story-1.2777436.
[4] Interview on Today with Sean O’Rourke, RTÉ Radio 1: http://www.rte.ie/radio/utils/radioplayer/rteradioweb.html#!rii=b9%5F21048314%5F15036%5F05%2D09%2D2016%5F.
[5] See an earlier i-CONnect post by the author: TG Daly, ‘The Democratic Recession and the ‘New’ Public Law: Toward Systematic Analysis’ Int’l J. Const. L. Blog, 22 Apr. 2016, at: http://www.iconnectblog.com/2016/04/the-democratic-recession-and-the-new-public-law-toward-systematic-analysis.
[6] T Tadeusz Koncewicz, ‘Of Constitutional Defiance, Migration and Borrowing of Unconstitutional Tactics and European Resistance’ Int’l J. Const. L. Blog, 17 Aug. 2016, at: http://www.iconnectblog.com/2016/08/of-constitutional-defiance-migration-and-borrowing-of-unconstitutional-tactics-and-european-resistance.
[7] See Commission Recommendation of 27.7.2016 regarding the rule of law in Poland C(2016) 5703 final http://ec.europa.eu/justice/effective-justice/files/recommendation-rule-of-law-poland-20160727_en.pdf.
[8] ‘Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland’, 11-12 March 2016 CDL-AD(2016)001 24.
[9] ’Polish ruling party rejects constitutional court decision invalidating parts of latest reforms’ ConstitutionNet 16 August 2016 http://www.constitutionnet.org/news/polish-ruling-party-rejects-constitutional-court-decision-invalidating-parts-latest-reforms?utm_content=bufferdc880&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer.
[10] T Tadeusz Koncewicz, ’Constitutional justice in Handcuffs? Gloves are off in the Polish Constitutional Conflict’ Verfassungsblog 3 Sep 2016 <http://verfassungsblog.de/constitutional-justice-in-handcuffs-gloves-are-off-in-the-polish-constitutional-conflict/>.
[11] M Safjan, ‘Politics and Constitutional Courts (Judge’s Personal Perspective)’ (2009) 165 Polish Sociological Review 3 (2009) http://cejsh.icm.edu.pl/cejsh/element/bwmeta1.element.ea26e217-4652-3dc1-b810-8b2d528a464d.
[12] See e.g. ‘Ruth Bader Ginsburg ‘Regrets’ Her Criticism of Donald Trump’ http://fortune.com/2016/07/14/ruth-bader-ginsburg-trump-apology/.
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