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The existence of the rule of law, underpinned by an independent judiciary, represents a fundamental dividing line between the United States and more authoritarian regimes. That divide is becoming more stark, spotlighted most recently by the controversy around President Trump’s post-election shake-up of his Justice Department. In weak democracies, pressure to abandon judicial oversight is being fueled by the rise of nationalist, populist politics. Turkey’s president fired several thousand judges after a failed 2016 coup. Poland’s president last month overrode European Union objections and named 27 new judges to the Supreme Court. Hungary’s government has been called out for meddling in judicial appointments. In Venezuela and the Philippines, the courts have also become a target for cementing political power. This is not an academic matter. In a case I witnessed in the former USSR, a small-bore dissident sued after his permission to emigrate was reversed. The judge who heard the case declared at its end that she lacked jurisdiction. The dissident was arrested and later died in prison. That speaks to why a retiring Hong Kong justice recently warned against complacency: “If we as a community insist on the rule of law, it cannot be taken from us.”
What’s the difference between the United States and, say, Russia? Or Turkey, Venezuela, or the Philippines?
Spoiler alert: It’s not hot dogs or apple pie. It’s not even just the fact no American president has muzzled, jailed, or, in some cases, killed, real or perceived rivals, as have leaders of those and other authoritarian regimes.
The fundamental dividing line, which is becoming increasingly stark worldwide, and spotlighted by the controversy around President Trump’s post-election shakeup of his Justice Department, is the existence of the rule of law, underpinned by an independent judiciary.
Even in settled democracies, that arrangement carries an inherent tension, by allowing often-unelected jurists to set legal limits on elected governments. Not just in the US, but other countries with judicial oversight, politicians have bristled not just at specific court challenges, but at the fact judges are in a position to make them in the first place.
Yet in countries where the roots of democracy are more fragile, there is a widening trend to do away with such oversight altogether. Especially with the rise of assertively nationalist, populist politics in many countries, human-rights monitors have highlighted judicial oversight as critical to protecting the status of minority communities, as well as voices critical of those in power.
In Turkey, President Recep Tayyip Erdoğan fired thousands of judges in the wake of a failed 2016 coup. Under a new Constitution, he has ensured political control over all judicial appointments. Since his reelection this year, he has undertaken a further wholesale reshuffle of the judiciary.
In Poland and Hungary, which joined the European Union after the fall of the Soviet Union, right-wing governments have been doing much the same. The Polish government last month overrode EU objections and named 27 new judges to the Supreme Court, in effect preempting future challenges from that quarter, a move since challenged by a ruling by the EU’s own Court of Justice. Hungary’s Prime Minister Viktor Orbán has been called out by a panel of the country’s senior judges, accusing the government of meddling in the process of judicial appointments and promotions.
In Venezuela, President Nicolás Maduro used a pliant Supreme Court to neuter the effect of his party’s parliamentary election defeat in 2015 and, since then, to cement his hold on power. In the Philippines, one of the few checks on President Rodrigo Duterte’s campaign of extrajudicial killings has been Supreme Court Chief Justice Maria Lourdes Sereno, whom he publicly called his “enemy.” In May of this year, just ahead of a vote by his parliamentary supporters to impeach her, her high-court colleagues voted her out.
The idea of an independent judiciary isn’t an academic matter. When I was covering the USSR in the 1980s, I remember trudging through the snow one morning to a Moscow courtroom to witness an almost Kafkaesque example of the real-world implications.
It involved a man named Viktor Tomachinsky, a small-bore dissident subject to small-bore harassment by the KGB, but who had finally been told by the secret police that he’d be allowed to emigrate to the West. When the authorities reneged, Tomachinsky decided to sue the KGB, for “lost earnings” abroad. The case was duly heard: by a visibly bemused and palpably not independent judge in Chamber No. 31 of Moscow City Court. At the end of Tomachinsky’s presentation, she withdrew to a back room and emerged 15 minutes later to announce: “We do not have jurisdiction.” That very night, I was later told, Tomachinsky was arrested. Two years later, he died in prison.
A cautionary note has come from Hong Kong, the former British colony returned to Chinese rule in 1997 and still enjoying a measure of autonomy under the principle of “one country, two systems.” Last month, a retiring justice from the Court of Final Appeal voiced confidence that “the rule of law is going strong.” But he warned that its future could not be taken for granted. Urging citizens to use their voices and their votes, he said: “If we as a community insist on the rule of law, it cannot be taken from us.” Echoing a phrase championed by, among others, Thomas Jefferson, he added: “The price of freedom is eternal vigilance.”