Judicial Independence in Peril: Perspectives from Hungary, Poland and Malta

The European Union is facing an unprecedented wave of rule of law backsliding in several of its Member States, which is characterised most notably by the erosion of checks and balances and judicial independence. The cases of Hungary and Poland have warranted the activation of the rule of law mechanism under Article 7(1) TEU and numerous cases before the European Court of Justice. Meanwhile, Malta has also come under scrutiny in recent years due to concerns over the quality of judicial independence. This paper will present the case studies of Hungary, Poland and Malta, emphasising the importance of the rule of law, especially in the context of the EU. Furthermore, it will critically assess how the governments of the three Member States have employed different means to deliberately curtail judicial independence with the objective of entrenching the long-term rule of the leading party and foster a culture of impunity and corruption. In Hungary, the government operates through autocratic legalism by way of constitutional reform. The Polish leading party has pursued its agenda in open violation of the constitution as well as of the EU legal order. Finally, Malta constitutes an interesting paradigm shift, whereby the government is able to take advantage of weak legislation and abusing administrative power to remove external scrutiny. Following the analysis of the case studies, the paper will discuss the consequences of the lack of judicial independence in the context of mutual and sincere cooperation. It will explore the perils that rule of law backsliding poses to the EU as a whole, arguing that it presents an existential threat to the functioning and legitimacy of the Union’s legal order.