Sir, – In a recent editorial ("Judges protesting in Poland: crossing a line", January 9th), The Irish Times took the view that the Irish judiciary has erred, and waded too far into politics, in condemning the Law and Justice party (PiS) attacks on judicial independence in Poland. I believe this to be misconceived.
It is axiomatic in our legal system that an independent judiciary should generally decline to declare political preference and engage actively in contemporary political controversies. But this principle has limits.
A judiciary that is independent, and thus not involved in politics, is not an end in itself. It is a principle we defend for its instrumental value in upholding the rule of the law and ensuring fair and impartial application of the law without political bias and prejudice.
It maintains faith in a law administered without political influence.
PiS’s assault on judicial independence – which the editorial acknowledged to be a repudiation of the rule of the law and the separation of powers – is precisely the sort of issue on which judges must speak out. The purpose and effect of these reforms is to undermine the independence of Poland’s judiciary and ensure a greater political leverage and control over the application of law.
When judicial independence itself is threatened, and the judiciary is under attack because of this role in ensuring fair application of the law, maintaining a lofty neutrality for fear of “being political” would be a grave mistake. It would confuse the means and the ends: allowing the erosion of judicial independence, and the undermining of its core purposes, to preserve its appearance.
The threat posed by the PiS judicial reforms is clear and substantial. It is not obvious that the EU and its institutions can or will adequately respond to it. Poland may become a blueprint for governments that wish to undermine their judiciary and erode the separation of powers. For judges here and across Europe to sit on the fence while this happens would be unconscionable. – Yours, etc,
Dr DAVID KENNY,
Assistant Professor
of Constitutional Law,
Trinity College Dublin,
Dublin 2.