Resist attempts to emasculate the Judiciary

Poland’s political system has undergone two dramatic shifts in the last three decades. One, in 1989, when the communist regime finally collapsed; and the other in 2015 with the parliamentary elections that handed the Law and Justice Party (PiS) a commanding majority in both chambers of the parliament.

Since then, new policies have been introduced by the executive branch of the government under President Andrzej Sebastian Duda aimed at curtailing the independence of the judiciary.

In late 2019, the Polish Lower House (Sejm) approved a controversial law aimed at cabining the structure and function of the Judiciary. The new law, popularly referred to as the “muzzle” law, empowers a disciplinary chamber to bring proceedings against judges for questioning the ruling party’s platform.

The political theory underlying the constitutional separation of powers dates back thousands of years, and traces its development through many eminent philosophers, among them Locke, Aquinas, Aristotle, Machiavelli and Montesquieu.

Aristotle is typically credited with articulating the design of government’s division into three basic functions or “powers”, namely “magisterial”, “deliberative”, and “judicial”, and which roughly correspond to the contemporary notions of executive, legislative, and judicial roles of government.

One of the main principles of the Kenyan Constitution is separation of powers among the three arms of government. The doctrine is rooted in a political philosophy that aims to keep power from dangerously consolidating in any single entity or person, and a key goal of the framers of the 2010 Constitution was to establish a governing system that divided power to ensure adequate checks and balances. Whereas the design of the Constitution aims, through separation, to obviate centralisation of power, it also seeks the same objective through diffusion.

Although each branch has strong inclinations to protect its prerogatives against encroachment, in many cases, individual political actors have incentives that run counter to institutional independence. Political actors often tend to place the short-term achievement of substantive policy goals ahead of the long-term preservation of institutional power. Recognising the critical role played by a competent, independent and impartial judiciary in the protection of human rights and fundamental freedoms, in 1985, the seventh United Nations Congress on the Prevention of Crime and Treatment of Offenders adopted and the General Assembly endorsed the Basic Principles on the Independence of the Judiciary.

In order to protect and preserve the autonomy of the judiciary against executive and legislative overreach, the Global Judicial Integrity Network recommends that both domestic and international supporters familiarise themselves with international instruments that memorise judicial independence and use them in their efforts to strengthen the autonomy of the judiciary. Members of the public must stay woke and resist attempts by politicians out to misuse legislative “reform” to manipulate the Judicial Service Commission (JSC).

- Mr Maosa is a banker. [email protected]