Illiberalism Fueled by the Coronavirus Pandemic: An Existential Threat to Judicial Independence (Part Two)

  

This is the 15^th  in a series of blog posts beginning on February 4, 2020 focused on justice systems’ responses to Covid-19 coronavirus  (SARS-CoV-2 is its technical name)  justice systems’ active participation in what is known as a  whole-of-society-approach (WOSA) to national security and safety threats such as Covid-19. The information in this post was drawn from recent reports in the Economist, the Guardian, Time, the Wall Street Journal, the Washington Post, the New York Times, and other news outlets. Views and opinions expressed are the author’s own. Last updated May 27, 2020. (An expanded version of both parts of this post is published in the INTERNATIONAL JOURNAL OF COURT ADMINISTRATION, Volume 11, Issue 2 (Summer 2020)).

Autocratization and Illiberalism: The New Normal?

Autocratization is democratic backsliding, a trend toward autocracy, a system of government in which a single person (the autocrat) possesses absolute power to weaken institutions such as an independent judiciary that sustain the democratic system. Advocacy groups and news outlets have raised concerns that the coronavirus pandemic is accelerating democratic backsliding in many parts of the world. In what the Economist described on March 28^th as “the most dramatic extension of state powers since the second world war,” the coronavirus pandemic has been seized by unscrupulous strongmen, autocrats and would-be autocrats, as an opportunity to assume extraordinary  powers.

We know from history that a crisis can be a turning point for societies. “You never want a serious crisis to go to waste, said Rahm Emanual, the former Chicago mayor and chief of staff to President Barack Obama, on March 22^nd  during  the debate over how lawmakers should respond to the coronavirus pandemic, reprising his  rallying cry during the 2008 financial crash.

Governments need high-tech surveillance tools such as contact tracing and  location tracking  to fight the spread of the virus, as well as emergency laws vesting extra powers in the executive – which 84 countries or more have enacted to date -- giving them the authority to use those tools.  Autocrats need to have extensive security apparatus not only to repress but also to monitor and understand their citizenry, feedback democracies achieve by means of freedom of expression. In the “Leaders” and “International” sections of its April 25^th edition, the Economist described the governance under Covid-19 in many countries as a “pandemic of power grabs” with the ominous picture below. 

Will these powers be relinquished when we are past the pandemic? The Wall Street Journal on April 16^th reported Jim Harper, an original member of the U.S. Department of Homeland Security’s Data Privacy and Integrity, warning that once surveillance powers such as contract tracing and location tracking are in place, they rarely are pulled back and can be repurposed as political tools.  

The Poster Child of Autocratization

The prime minister of Hungary, Victor Orbán, is the posterchild of this autocratization. In a 2013 interview, he said: “In a crisis, you don’t need governance by institutions.”  Under Hungary’s emergency “coronavirus law,” passed by its parliament on March 30^th, Mr. Orbán can rule by decree, becoming in effect a dictator, until parliament revokes his powers, which  is unlikely to happen any time soon since parliament is dominated  by Mr. Orbán’s nationalistic political  party, Fidesz.

Mr. Orbán touts the virtues of “illiberal democracy” and he is, no doubt, willing to dispense with such constitutional niceties as an independent judiciary and the separation of powers because, he might argue, such arrangements impede economic growth by making it harder for his government to respond quickly and flexibly to changing circumstances and national crises like the coronavirus pandemic.

Mr. Orbán has for a decade hollowed out the state, undermined the courts, corroded the checks of his authority, and weakened civil society and the free press. As part of 2012 judiciary reform the Hungarian legislature lowered the age of retirement for judges from 70 to 62, forcing 57 experienced judges including the head of the Supreme Court to leave the judiciary. The reform also established a  centralized court administration under the new National Judiciary Office headed by Tünde Handó, the wife of József Szájer,  the vice-president of Fidesz.  Under Handó, who served as the inaugural president of the National Judiciary Office from 2012 to the end of 2019, the Office weakened judicial self-governance and independence. Orbán’s government dismissed widespread criticism by judges, judicial organizations, and democracy advocacy groups in Hungary, as well as by international observers.  

Hungary’s sweeping emergency law, passed on March 30^th, allows Mr. Orbán to suspend the enforcement of certain laws, pull back statutory regulations, and implement additional extraordinary measures by decree. For example, it imposes as much as five years of imprisonment for anyone who spreads “distorted truth” that is seen as detrimental to Hungary’s efforts to combat the virus and address its economic impact, a provision similar to a spate of such measures throughout Europe. During a radio broadcast March 29^th defending his actions Mr. Orbán said that “this is not the time to come to me pontificating about all sorts of no doubt fascinating legal and theoretical questions. Because now we have a crisis, now we have and epidemic, now we must save lives.” According to Human Rights Watch, this law “virtually abolish[es] all democratic checks-and-balances.”

On April 13^th, amidst debate about when and how the United States should ease its Covid-19 lockdown of the economy, President Donald Trump claimed “absolute power” to decide against the approaches of most state governors. No serious legal scholars agreed, citing clear constitutional limits to his authority. His claim of absolute power was largely ignored. The next day he was forced to retreat. This is in sharp contrast to Hungarian media welcoming Mr. Orbán’s “corona coronation.”

The coronavirus crisis has prompted governments on the European continent to close borders across what is now known as the Schengen area, an area including 26 European nations that have officially abolished all passport and all other types of control at their mutual borders.  Mr. Orbán has used the pandemic to advance his previously held views restricting free movement and fencing off Hungary’s borders to migrants. Similarly, in the United States, President Donald Trump has seized on the pandemic as an opportunity to cement his long-held restrictive immigration policies. As reported by the Wall Street Journal on May 9^th (“Virus Offers Path to Keep Borders Shut”) , senior administration officials are operating on the “assumption that the public, during the pandemic, will be willing to accept new limits on immigration.”  

Other leaders of similar stripes in Poland, the Czech Republic, Austria, Serbia, and Montenegro, further afield in Eastern Europe in the Ukraine and Moldova, and in other parts of the world, including Venezuela, Brazil, and India, all seem to be following Mr. Orbán’s playbook. “Political leaders could abuse the coronavirus crisis to undermine democracy,” wrote Andras Racz, senior fellow at the German Council on Foreign Relations, quoted by the Wall Street Journal (“Orbán Allowed to Rule by Decree,” March 31, 2020). “Europe’s biggest risk is Hungary,” he continued.

Readjustment and Adaptation of Court Administration Needed

Judicial leaders and court administrators will need to readjust and adapt to the new realities of governance under illiberalism and autocratization.  “When facts change our thinking,” John Maynard Keynes famously told a critic, “I change my mind. What do you do, sir?” What is an effective justice response to the pandemic in an era of illiberalism?  What are some key adjustments that courts and justice systems around the world may need to make to deliver justice in the face of the challenges?

First and foremost, I believe a new narrative is needed, one that frames new strategies and tactics of readjustment and adaptation, one that is less combative, one that aggressively eschews the past’s sharply polarized relationships between the judicial branch and the other two branches of government, and one that makes people partners instead of opponents. In a recent essay in Time (“Now is the Moment to Change the World,” May 18, 2020), the Dutch historian Rutger Bregman reminds us: “Our unique ability to cooperate may explain the success of our species.”

Second we need  an approach that puts major emphasis on  good governance of the judicial branch, with a focus on competence and performance, an approach that  mutes the more strident demands by judicial leaders for absolute judicial independence, coequal status of the judiciary with the executive and the legislative branches of government, and a perfect balance of power between them.

Finally, I suggest that national judicial systems “go global” and link up with international partners to have a voice on the international stage and to gain influence and strength from international visibility.

A New Narrative

When we name things and weave them into a coherent framework, we make it more difficult to ignore them. Without a new narrative to superimpose on the “leave-us-to-our-own affairs” stance of many judicial leaders, we may have no connection to today’s realities. In an October 2018 article critical of  the European Network of Councils for the Judiciary's (ENCJ) framework and vision of the independence, accountability, and transparency of the judiciaries in the member states of the European Union (“Viewing Judicial Independence and Accountability through the ‘Lens’ of Performance Measurement and Management”), I concluded with a warning about the “politicization of the judiciary,” troubling developments that many saw as a retreat from democracy and the rule of law in Europe and in many other parts of the world. In the article, I first explored risks to judicial independence at two levels: decisional independence (e.g., when a judge perfunctorily places a court’s imprimatur on decisions made by the other branches of government) and institutional independence (e.g., when the executive branch meddles improperly in judicial selection, retentions -- including, for example, mandatory retirement -- and assignments). Writing before the outbreak of the pandemic, I warned about risks at a third level – governance independence -- which I saw as more troubling than risks to decisional independence and institutional independence. I saw these developments as trends toward “illiberal democracy” around the word that pose an existential threat to the judiciary. In many countries, I wrote, lip service is paid to democratic principles in constitutions that are ignored in practice. Strongmen who rule in authoritarian oligarchies amid corruption and political chaos in countries that once looked like they were democratizing today seem to be moving in opposite directions. This is occurring not only in Russia, Egypt, Turkey, and under the rule of the posterchild of illiberalism, Mr. Orbán, the president of Hungary, but also in the United States, long thought to be the engine room of democracy.  As they cling to power, embattled strongmen elsewhere, like Daniel Ortega in Nicaragua and Nichola ́s Maduro in Venezuela, show no inclination towards sharing power with others, never mind their own judiciaries.

As the Israeli historian Yuval Harari suggests in his book 21 Lessons for the 21st Century, our sense of justice may be out of date, and liberal democracy might “become obsolete” over the coming century as “old stories have collapsed and no new story has emerged.” (It should be noted that, though he discusses the shortcomings of the liberal view and democratic systems, Mr. Harari nonetheless believes that liberal democracy is the “ most successful and most versatile political model humans have so far developed for dealing with the challenges of the modern world.”) To meet the challenges of illiberalism, justice systems need to develop a new story and new narratives for reform strategies in which ideology and doctrine – separation of powers, coequal branches of government, and judicial independence -- are not central. Instead, the new narrative should feature good governance of the courts and justice institutions as seen through the eyes of nations’ citizenry.

Good Governance

What do citizens care about? What do they want from their governments? First and foremost, plain and simple,  they want performance not just promises and rhetoric,  competence, effectiveness,  and trustworthiness in their governments’ abilities to provided needed services and do no harm -- health ministries and departments  to keep people healthy, education ministries to deliver education, labor ministries to provide people with jobs that earn a good living, defense ministries to keep them safe and secure, and courts to deliver justice. And they want to trust these units of government to work together for the common good.

In addition to competence and accountability for performance, a “good governance” narrative should emphasize comity in governmental relations and present a vision of what it means to work together cooperatively instead of trying to sow divisiveness. Judicial independence and separation of powers do not mean absolute autonomy or isolation. The five standards in the performance area of independence and accountability in the seminal Trial Court Performance Standards  (Commission on Trial Court Performance Standards, 1997) combine the principles of separation of powers and judicial independence with the need not only for public accountability, but also comity. Black’s Law Dictionary (5th ed. 1979) defines “comity” as courtesy, complaisance, respect, and a willingness to grant a privilege, not as a matter of right or obligation, but out of deference and good will. The Standards takes the doctrine of comity beyond the legal sphere into judicial administration, i.e., the practices, procedures, and organizational structures concerning the management of the administrative systems of the courts. Standard 4.1 of the Standards, “Independence and Comity,” states: “A trial court maintains its institutional integrity and observes the principle of comity in its governmental relations,” suggesting that comity is integral to public accountability. The commentary of this standard states:

For a trial court to persist in both its role as preserver of legal norms and as part of a separate branch of government, it must develop and maintain its distinctive and independent status. It also must be conscious of its legal and administrative boundaries and vigilant in protecting them. Effective trial courts resist being absorbed or managed by the other branches of government…. Effective court management enhances independent decision making by trial judges. … The court must achieve independent status, however, without damaging the reciprocal relationships that it maintains with

others. Trial courts are necessarily dependent upon the cooperation of other components of the justice system over which they have little or no direct authority. 

In the Covid-19 pandemic, everywhere people are scared. They want to be led to safety and health. Strongmen are grabbing power with coercive tools they have always craved in order, they say, to protect public health and safety.

The lesson for courts and justice systems is to develop a narrative that eschews ideology and dogma, a narrative  that may be sacrosanct for constitutional scholars but be seen by ordinary citizens as theoretical handwringing over abstractions that they may not comprehend or that  they see as irrelevant to the ends that they really care about. As Professor Harari has pointed out, ideological dogmas are attractive today “precisely because they offer us a safe haven from the frustrating complexity of reality.” Good governance means that governments deliver what a country’s citizens want, and they do not want ideology. They want courts that are accessible to them. Once they have gained access, they want dispute resolution in a timely fashion. They want to be treated fairly and equally with dignity and respect. They want a justice system that is well governed, that is competent, and is trusted to deliver the justices services.

Make It Global

In an essay in the April 25^th edition of the Economist, (“Learning to Fight the Next Pandemic”), Bill Gates, the cofounder of Microsoft and the co-chair of the Bill & Melinda Gates Foundation, recommended that we “make it global.” His focus was on medical breakthroughs and science, but his recommendation is apt for what may well be an era of diminished power of the judiciary and a balance of power shifted to the executive branch. “In the years after 2021, I think we’ll learn from the years after 1945,” he writes. “With the end of the second world war, leaders built international institutions like the UN to prevent more conflicts. After Covid-19, leaders will prepare institutions to prevent the next pandemic… These will be a mix of national, regional, and global organizations.”

In a similar vein, courts and judicial systems should not go at it alone but “make it global” and join other nations in international efforts to counter the forces of illiberalism and autocratization. The European Network of Councils for the Judiciary, the International Association of Judges, the Network of Presidents of the Court of Justice of the European Union, and the International Association for Court Administration, and other similar organizations provide a forum for unity and  support for reform efforts that strengthens those efforts at the national and regional level.

Especially in today’s adverse environments, countries need a competent functioning judiciary to protect the common good and restrain power grabs by the state. 

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