Disciplinary regime introduced by Warsaw infringes on judicial independence, adviser to top EU court states.The European Union’s top court should rule that measures introduced by Poland’s ruling Law and Justice (PiS) party to discipline judges contradict the bloc’s laws, a court adviser has said ahead of a final ruling due in the coming months.
In an opinion on Thursday, Advocate General Evgeni Tanchev recommended that the European Court of Justice (ECJ) rule that the Disciplinary Chamber of the Supreme Court is not in line with EU law.
The development was the latest in an ongoing dispute between the 27-member bloc and the conservative, populist party, which has reshaped Poland’s justice system since it came to power in 2015 to give authorities new powers over the courts.
PiS has defended its moves, saying it is seeking to reform an inefficient and corrupt justice system. Critics, however, see that as a pretext for the party seizing control of the country’s courts.
In 2017, it created a body – the Disciplinary Chamber – at Poland’s Supreme Court with the power to discipline judges, including those of the lower courts.
Many judges in the country fear the chamber is a tool to pressure judges to issue rulings that favour the ruling authorities.
While PiS has taken control of the highest courts, many lower court judges continue to show their independence, some issuing rulings against government officials or interests.
Tanchev also said Poland’s broad new definition of disciplinary offences had a “chilling effect” among judges by weakening their protections and independence.
Such legal opinions are not legally binding but are often followed by the ECJ. The judges of the top EU court are now beginning their deliberations in the case and a judgment is expected later this year.
‘Destruction of Poland’s rule of law’
The European Commission, which ensures that EU law is respected by the member states, brought a complaint to the ECJ over the issue. It believes that independence and the impartiality of the Disciplinary Chamber cannot be guaranteed.
The Luxembourg-based ECJ has already ordered the suspension of the Disciplinary Chamber pending a final ruling on whether it offers sufficient guarantees of judicial independence. However, the chamber has continued to work despite the ruling.
The chamber is composed of judges selected by the National Council of the Judiciary, a body whose members are chosen by the parliament, where PiS holds a majority.
The news of Tanchev’s opinion arrived in Warsaw as lawyers and others gathered outside the Supreme Court as the Disciplinary Chamber was hearing the case of a judge.
Michal Wawrykiewicz, a lawyer with Free Courts, a group fighting for judicial independence, delivered a message in English to the television cameras.
“Dear judges of the European Court of Justice, hear the voices of Polish lawyers, citizens, who are horrified by the destruction of Poland’s rule of law,” Wawrykiewicz said.
“We are doing everything what is in our power,” he said. “Please help us restore European standards of an independent judiciary in Poland. Now it is your turn.”
Poland’s Deputy Justice Minister Sebastian Kaleta meanwhile accused the EU of “double standards” and Tanchev of disseminating “lies” in seeking to block Warsaw’s overhaul of its judiciary.
Salvadoran lawyers and human rights groups fear newly sworn-in lawmakers have dealt an irreparable blow to the country’s young and fragile democracy after the legislators removed officials from key offices over the weekend.
The removal of the country’s attorney general and Constitutional Court judges eliminates two of the remaining checks on the power of the administration of President Nayib Bukele, who has been consolidating control of democratic institutions since he took office in June 2019.
Salvadoran human rights defender Celia Medrano said it also signals the government wants to “keep themselves in power and crush any opposition”.
In a country that is still healing from a 12-year-long civil war that ended in 1992 and left 75,000 dead, Saturday’s parliamentary votes stir up old memories of an era of repression and human rights abuses and serve as a reminder of the fragility of the country’s democratic system.
“Everything indicates that this will be a long period of darkness in the country in terms of democracy,” Medrano told Al Jazeera.
People protest against the dismissal of the Constitutional Court judges and attorney general, in San Salvador on May 2 [Marvin Recinos/AFP]
‘Setting an example’
Bukele won the presidency in 2019 on an anti-corruption platform that appealed to voters fed up with the country’s two traditional parties, left-wing FMLN and right-wing ARENA. But without the support of the country’s legislators, many of his proposals were blocked in the first two years in office.
Institutions including the Constitutional Court, the attorney general’s office, and the ombudsman often acted as checks on his power.
In February, Bukele’s party Nuevas Ideas, or New Ideas, won 56 of 84 seats in the national assembly after an overwhelming show of voter support. When the lawmakers took office on May 1, they moved swiftly – and unconstitutionally, according to legal experts – to remove the five judges of the Constitutional Court as well as Attorney General Raul Melara.
Five new judges have already been appointed to the court by the new assembly. Three of the ousted judges have since formally resigned, citing personal reasons, but not before issuing a declaration of the unconstitutionality of their removal.
“With this, the legislative assembly is setting an example. They are saying to all other officials: ‘If you question the vision of the president, you can also be removed,’” said Manuel Escalante, a lawyer with the Institute of Human Rights at the University of Central America (IDHUCA).
Bukele and his supporters defended the actions as necessary to rid the country of corrupt officials of past administrations. “The people did not send us to negotiate. They’re leaving. All of them,” Bukele tweeted on May 3.
Also on Twitter, Suecy Callejas Estrada, one of the Nuevas Ideas legislators who led the initiative, defended the decision as constitutional, citing three articles to back up her argument.
Yet legal experts have refuted this interpretation of the constitution, which does establish a process for removing officials from office, but only under limited conditions that legal experts say have not been met.
Officials can be removed from office for “specific causes previously established by the law” and a process of vetting new candidates to fill the newly vacated positions must be followed. The new legislators bypassed that in an ad hoc process, according to Escalante.
“The explanations that the assembly gave on Saturday were at no point legal explanations based in the legal system,” he said. “Instead what they expressed was simply a discontent with the constitutional court because they [the justices] were not in agreement with the constitutional interpretation of the president.”
Escalante added: “Their actions convey the message that the only one who interprets the constitution correctly is the president.”
Furthermore, the timing of the removal of the attorney general suggests a political motive, according to Medrano. “It’s important to point out that the removal of the attorney general was during a moment when he was investigating serious acts of corruption and links of the current government with organised crime,” she told Al Jazeera.
The president’s office did not respond to a request for comment.
Demonstrators hold a sign reading ‘Bukele Dictator’ during a protest on May 2 [Marvin Recinos/AFP]
International human rights groups and United States officials immediately condemned the actions in El Salvador.
US Vice President Kamala Harris, who is leading the Biden administration’s efforts to work with Mexico and Central American countries to stem migration, said the administration has “deep concerns” about the events. “An independent judiciary is critical to a healthy democracy – and to a strong economy,” she tweeted on May 2.
US Secretary of State Antony Blinken echoed these concerns in a call with Bukele on Sunday, the State Department said in a statement, while USAID, the country’s development agency, said an independent judiciary is “a necessary precondition for combating corruption and attracting investment” in El Salvador.
Bukele rebuffed these critiques, however.
“To our friends in the international community: we want to work with you, to do business, travel and to know us and help in what we can. Our doors are more open than ever. But with all due respect: we are cleaning our house … and that’s none of your business,” he tweeted on Saturday.
A nuestros amigos de la Comunidad Internacional:
Queremos trabajar con ustedes, comerciar, viajar, conocernos y ayudar en lo que podamos.
Nuestras puertas están más abiertas que nunca.
Pero con todo respeto:
Estamos limpiando nuestra casa.
…y eso no es de su incumbencia.
— Nayib Bukele 🇸🇻 (@nayibbukele) May 2, 2021
El Salvador’s constitutional crisis comes as the Biden administration has promised to prioritise strong democratic institutions in Central America.
“There’s a pretty clear message coming from the United States and I think that’s important,” said Geoff Thale, president of the Washington Office of Latin America (WOLA), a nonprofit that promotes human rights in the region. “But now they’re going to have to think about actions.”
Sanctioning corrupt government officials and appealing to Bukele’s interests – trade and the economy – are two potential ways the US could follow through with its commitment to building democracy, Thale told Al Jazeera.
Meanwhile, Salvadoran lawyers and human rights groups wanting to challenge the recent moves now face a dead end. Before, they could have turned to the Constitutional Court – but no more.
“By taking control of these institutions,” said Escalante, “they force us to face a situation in which whoever searches for justice or tries to control the abuse of power from the executive branch isn’t going to find it.”
Bukele’s party Nuevas Ideas, or New Ideas, won 56 of 84 seats in the national assembly after an overwhelming show of voter support in February elections [File: Yuri Cortez/AFP]
West Virginia lawsuit accuses drug distributors of fuelling opioid epidemic with excessive shipments of painkillers.Drug companies accused of fomenting opioid addiction in the United States are facing millions of dollars in damages in a trial that opened on Monday in the state of West Virginia, which has been hit hard by the epidemic of addiction and overdoses.
The city of Huntington filed a federal lawsuit against three big drug distributors -AmerisourceBergen Drug Co, Cardinal Health Inc and McKesson Corp – alleging they pumped addictive painkillers into the state.
“It is fitting that the trial will proceed in West Virginia, which has been ground zero of the opioid epidemic,” the plaintiff’s lawyers, Paul Farrell and Anne McGinness Kearse, said in a statement.
More than 400,000 people have died in the US of overdoses since the early 2000s, when producers of prescription drugs like oxycodone and hydrocodone ramped up sales through pharmacies and doctors with few controls.
West Virginia has the nation’s highest fatal opioid overdose rate.
A US judge last month rejected the companies’ attempt to dismiss the West Virginia case.
Hundreds of similar lawsuits have been filed across the country, but the Huntington case has become the focus of national efforts to make drug companies pay for the social and medical costs of the addiction epidemic.
“Between 2006 and 2014, manufacturers and distributors of prescription opioids have showered the state of West Virginia with 1.1 billion hydrocodone and oxycodone pills,” the lawsuit alleges.
“The massive over-shipment amounts to 611 pain pills for every man, woman and child in the state.”
Leading pharmaceutical makers and distributors, including bankrupt Oxycontin maker Purdue Pharma and top US pharmacy chain CVS, are also named in the lawsuit.
The drugmakers and pharmacy chain have blamed the epidemic on doctors who overprescribed the drugs, fuelling a massive black market for some 15 years that was only brought under control beginning in 2015.
But the federal government has prosecuted and jailed or fined hundreds of doctors, pharmacies and drug producers for everything from trafficking to poor controls on opioid distribution.
The US Justice Department sued Walmart Inc in December, accusing the retailer of fuelling the opioid crisis and ignoring warning signs from its pharmacists.
US prosecutors reached an $8.3bn settlement with Purdue Pharma in October, when the company admitted criminal conduct in the distribution of its painkillers and agreed to asset forfeiture while in bankruptcy reorganisation.
Major US consultancy McKinsey & Co agreed to pay $573m to settle a lawsuit by US states, which accused the firm of helping fuel the opioid crisis by providing marketing and sales advice to Purdue Pharma and drugmaker Johnson & Johnson.
Since controls on legal opioids were tightened, many people whose addiction began with prescription drugs have turned to illegal heroin and fentanyl, prolonging the epidemic.
About 90,000 total overdose deaths were reported last year across the country, according to the US Centers for Disease Control and Prevention (CDC), of which nearly three-quarters involved opioids.
Human rights and judicial experts have slammed lawmakers aligned with El Salvador’s populist President Nayib Bukele for voting to dismiss top Supreme Court judges, a move they say aims to remove any opposition to Bukele’s firm grip on power.
On Saturday, the legislative assembly voted to dismiss all the justices in the Supreme Court’s constitutional chamber for issuing “arbitrary” decisions.
The lawmakers also voted to dismiss Attorney General Raul Melara, considered close to an opposition party.
Bukele’s Nuevas Ideas (New Ideas) party and its allies hold an absolute majority in the chamber after they overwhelmingly won legislative polls in February.
“And the people of El Salvador, through their representatives, said: DISMISSED!” Bukele tweeted following the vote.
Elisa Rosales, a New Ideas legislative leader, said the move was needed to address COVID-19.
She said there is “clear evidence” that the five judges had impeded the government’s health strategy and that lawmakers had to remove them to protect the public.
El Salvador’s President Nayib Bukele has dismissed accusations he is trying to cement his total control of the country [File: Jose Cabezas]Just minutes after the vote, the judges responded with a ruling that the congressional decision was unconstitutional, setting up a clash of the country’s top powers.
Several human rights groups and experts have sounded the alarm, accusing the president of leading El Salvador into a political crisis.
“Bukele is breaking with the rule of law and seeks to concentrate all power in his hands,” Jose Miguel Vivanco, executive director of Human Rights Watch’s Americas division, said on Twitter.
“It is a situation which carries a profound risk. It [Congress] is playing with fire and may deepen this crisis to such a magnitude that we will not be able to get out of it,” Miguel Montenegro, coordinator of the human rights commission, told the AFP news agency.
The Organization of American States also said it condemned the dismissal of the judges, saying “the fullest respect for the democratic rule of law is essential”.
“I condemn the steps that the political power has been taking to dismantle and weaken the judicial independence of the magistrates by dismissing members of the Constitutional Chamber,” Diego Garcia-Sayan, UN special rapporteur on the Independence of Judges and Lawyers, also tweeted after the vote.
‘None of your business’
Civil society groups had warned ahead of the February 28 elections that if Bukele’s party did well, the results could speed up the deterioration of the country’s democratic institutions.
But many voters expressed frustration with more traditional political parties that had maintained control in El Salvador since the end of the country’s 12-year civil war in 1992 – and said they supported Bukele’s party because it promised to tackle corruption.
Just after midnight on Sunday, Bukele said on Twitter that while El Salvador wants to work with the international community, it should butt out of the country’s affairs.
“To our friends in the International Community: We want to work with you, trade, travel, get to know each other and help where we can. Our doors are more open than ever. But with all due respect: We are cleaning our house … and this is none of your business,” he tweeted.
Statement of the OAS General Secretariat on the Situation in El Salvador
— OAS (@OAS_official) May 2, 2021
Nevertheless, Salvadoran opposition legislators accused Nuevas Ideas of carrying out an attempted “coup”.
“What happened last night in the Legislative Assembly, with a majority that the people gave them through the vote, is a coup,” said right-wing Arena Party lawmaker Rene Portillo.
US lawmakers and officials from President Joe Biden’s administration also condemned the vote.
Earlier this week, the Biden administration pledged $310m in aid to El Salvador, Honduras and Guatemala to stem the tide of migration towards the United States.
“Let us be clear: this is not democracy, this is the destruction of an independent judiciary and the rule of law,” Congressman Jim McGovern tweeted, while Juan Gonzalez, Biden’s senior adviser for Latin America, said: “This is not what you do.”
“A strong U.S.-El Salvador relationship will depend on the Government of El Salvador supporting the separation of powers and upholding democratic norms,” US State Department official Julie Chung also said on Twitter.