Muzzle Law of Poland: An attack on the Independence of Judiciary
Publisher
Global Views 360
Publication Date
August 16, 2020
URL
Andrzej Duda, the President of Poland | Source: Wojciech Grabowski via Wikimedia
On February 4, 2020 the president of Poland, Andrzej Duda signed a law that prohibits the country’s judiciary to question the appointment of judges by the President and bars them from being involved in political activities. The law also prohibits judges to seek guidance from the EU Court of Justice on appointments by the National Council of Judiciary (NCJ) of Poland.
Opposition parties condemned the law and Supreme Court president Malgorzata Gersdorf termed it as “Muzzle Law”.
In December 2019, the Sejm, the lower house of the Polish parliament passed the bill that would penalize judges who criticize the judicial reforms of the ruling Law and Justice party. It was sent back by the upper house for further discussion and a vote. However Sejm, using its superior power, enacted the bill, which the president signed on February 4, 2020, making it a law in the country.
The SC of Poland had earlier ruled on December 5, 2019 that the NCJ is not an independent body. Again on January 23, 2020 the SC in a ruling termed the appointment of the judges by the NCJ as illegal stating their apprehension that they may not be free from political influence. The Justice Ministry, quite predictably termed the SC verdict as a “serious violation of the law”.
The law has drawn criticism from lawmakers as well as legal scholars across Europe and the European Union. On 11th January 2020, hundreds of judges from across Europe marched in Warsaw to protest against the enacting of the controversial law. Thousands of lawyers and residents joined in with many waving Polish and EU flags as they marched from the SC to the parliament. "We have come here to support the Polish judges but we are not politicians. We are here about the rule of law, not about politics." John MacMenamin, an Irish Supreme Court judge, told reporters.
In February 2020, a group of 44 ICJ Commissioners and Honorary Members along with senior judges, lawyers and legal scholars from across the world released a statement in which they said, “it is clear that the separation of powers, the independence of the judiciary, and the capacity of Polish judges to uphold the rule of law are now severely compromised. Judges’ freedom of expression, association and assembly are under immediate threat.”
Ever since it came to power in 2015, The Law and Justice Party of Poland, has been working towards dismantling the independence of the judiciary, terming it judicial reforms. There has been opposition to these actions by the opposition parties, judicial bodies as well as European Union.
EU flags at the European Commission Berlaymont building Brussels, Belgium | Source: Guillaume Périgois via Unsplash
Late in 2017, the European Union had initiated what it called “unprecedented proceedings” against Poland. The move was a response to the worrying reforms in the judiciary that were being enforced by the government. The EU had stated back then that these “systematic threats” could see Poland losing its EU voting rights.
On 29th April, 2020, The EU started a new legal case against the nationalist Polish government in response to the adoption of the “muzzle law”. The EU further added that it was giving Poland two months to address the issues pertaining to the law. “This is a European issue because Polish courts apply European law. Judges from other countries must trust that Polish judges act independently. This mutual trust is the foundation of our single market,” said Vera Jourova, the Czech member of the executive Commission who is responsible for upholding the EU’s democratic values at a news conference.
A few European legal scholars have warned that the developments in Poland are a threat to the entire legal system of the EU. Despite all the criticism and pressure from the EU, the Polish government is yet to respond meaningfully to the growing concerns over the assault on Poland’s judicial system and its potential EU exit.
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NEET/JEE Examinations during the Pandemic in India: Whose interest will it really serve?
India currently is the third worst-hit country globally in terms of the total number of COVID-19 cases which is still on the increasing trend. The country had imposed one of the toughest lockdowns across the world to counter the threat of Corona in the initial phase itself. Apart from the economic activities, the lockdown has impacted the education sector in a big way.
All the education institutions from pre-nursery schools to the professional colleges and universities were closed down in the month of March 2020 itself. These institutions are still closed for the physical presence of students and the classes are happening only through online modes which doesn't require students to venture out from their homes.
The schools and colleges cancelled the pending examinations of last academic year and gave general promotion to the students for the next class. Many examinations for admissions to various college programs in the country were also done away while some are still on.
Two of the biggest national level entrance exams, the NEET and the JEE, which have been postponed multiple times in the light of the increasing number of COVID-19 cases are now in the spotlight. This is due to the fact that the Ministry of Education recently stated that both the JEE and the NEET will be held in the upcoming month of September. The NTA has issued public notices citing that the JEE (Main) April 2020 is scheduled from September 1-6, while NEET-UG 2020 exam is scheduled for September 13.
The Supreme Court had responded to a plea filed on 17th August seeking postponement of the exams, while dismissing it, that the precious year of students “cannot be wasted”. The plea that had been filed through advocate Alakh Alok Shrivastava via 11 students from different states sought the quashing of the notices issued on July 3rd by the National Testing Agency (NTA), which set the dates for JEE and NEET in September next month.
The Medical Council of India (MCI) in response to the plea has submitted an affidavit to the Supreme Court stating that further postponement of the NEET would be a “drastic deviation” from the academic schedule which “may affect the subsequent academic years” of the students. It also ruled out the possibility of conducting NEET online owing to the “paper book format” of the exam. It further stated that conducting the exam at the same time everywhere is imperative and hence it cannot be organized in countries like Qatar and UAE which attract significant applicants.
With the centre looking adamant to organize the exams, student organizations like the National Students Union of India (NSUI), the student wing of the Indian National Congress, and the All India Student’ Association, student wing of the CPI(ML) have come together to protest against the decision. Both the outfits demanded cancellation of all first and second-year exams and giving promotion to the students, holding final year exams in a way such that students across the country can write them, and most importantly postponement of both the NEET and the JEE.
Dr. Ramesh Pokhriyal Nishank, Minister of Human Resource Development, India | Source: IndiaTVNews
An argument in favour of conducting the exams as given by Education Minister Ramesh Pokhriyal Nishank was that the majority of the aspirants had already downloaded their admit cards for the exams. However, it is quite easy to see that students do not have a choice. One can argue that if we put ourselves in the applicant’s shoes, even we would do the same and download the admit cards. This by no means is an indication that students are willing to appear in the exams.
My personal experience in appearing for the JEE and AMU-EEE back in 2017 and 2018 is more than enough for convincing me in favour of postponing the exams. For JEE alone nearly 15 lakh students appear annually. The examination centres are usually overcrowded both before the beginning and after the culmination of the exam and it is nearly impossible to maintain social distancing. Also, the students are normally accompanied by parents or guardians which further adds up to the crowd. Further due to the large number of applicants it will be impossible to maintain distance in the examination halls unless and until the number of examination centres is increased tremendously. Due to various financial and logistical reasons, this will be an uphill task to accomplish.
Students across the country have reacted strongly to the decision of the Court on social media. Most of them are worried about contacting COVID which will put their own as well as the family members’ at risk. Manish Chaubey, one of the 11 petitioners in SC, said, “My hometown is in Gorakhpur in Uttar Pradesh and I am in Mumbai at present. It will be a hassle and immensely risky to travel now. Why should I have to put my parents through this?". While some pointed out the irony of the SC using a virtual mode to conduct hearings for making students appear in the exams, others chose to blame the BJP for being inhuman in forcing students into crowded examination centres.
In an open letter to the HRD ministry and education minister Dr Harshvardhan, MadhuPurnima Kishwar, founder of human rights organization, MANUSHI, sought to address the countless appeals regarding various issues and concerns of applicants nationwide received by her. Most of the appeals revolved around safety concerns and fear of contracting the coronavirus disease and thus jeopardizing the safety of family members.
In the letter, she pointed out how the recently organized KCET and B.Ed exam in UP were a clear indication of how it would be nearly impossible to implement the distancing and safety guidelines in the overcrowded examination centres. The overwhelming shortage of examination centres in the light of distancing norms was also mentioned in the letter. She also stated how many IIT and AIIMS directors were of the opinion that the exams could be conducted in November without significant academic loss.
Another very important fact mentioned in the letter was regarding the applicants from countries like the UAE and Qatar. Due to the mandatory 14-day quarantine period for anyone arriving in the country from overseas, it will be very tricky for these applicants and their parents to travel under the current scenario. Parents of nearly 4000 applicants in these countries abroad had filed a plea for either postponing the exams or conducting them abroad. However, the NTA, after consulting with the MCI, ruled that conducting the exams overseas is not a viable option which means that all these candidates will be left stranded. Even if they manage to fly to India for appearing in the exams, they will then be subject to various guidelines issued by their parent countries abroad.
Multiple politicians also voiced similar concerns regarding the decision. Congress leader Rahul Gandhi urged the government to consider the concerns of the students appearing for the entrance examinations. Manish Sisodia, Aam Aadmi Party leader and the deputy CM of Delhi also echoed similar thoughts. BJP leader Subramanian Swamy on Sunday came up with 13 points concerning logistical issues as well as safety concerns in the argument for the need of postponing the exams.
Another very strong argument in favour of postponing the exams was the lack of public transport services due to lockdown in many districts and states of the country. While those who had arrangements for private vehicles would not face any issue, the others would be left stranded in the absence of the various means of public transports. Lastly, many states are still under various degrees of lockdown as the overall situation of the country is still not very great in terms of daily coronavirus cases. This would also make movement for those applicants with examination centres away from their native places very difficult.
The debate surrounding the NEET and JEE exams has become quite a heated issue around the country. With so many applicants and their parents asking for the postponement of the exams due to various safety concerns, it remains to be seen if the government would still go ahead in organizing these exams as planned.
