Judicial independence rarely comes to the forefront of contemporary European politics. Normally, the esoteric technicalities of how the judiciary interact with the other branches of government are not of interest to most people.
There are exceptions to this – a few months ago Viktor Orban’s ruling Fidesz party in Hungary was very publicly criticised by the Council of Europe’s Commission for Democracy through Law (the Venice Commission) for various constitutional reforms that placed powers for selecting, disciplining and allocating judges into the hands of the (politically appointed) president of the National Judicial Office, Tünde Handó. Mrs Handó’s appointment was even more controversial as she is married to József Szájer, a Fidesz founder and a current MEP for the party.
However, recent events in Greece have really put the politics back into judicial independence. A senior judge, Panagiotis Pikrammenos, has been appointed as caretaker Prime Minister. This has occurred in accordance with Article 37(3) of the Greek Constitution which holds that the Greek President, after giving various parties time to form coalitions (and then having a go at forming a cross-party coalition himself), can appoint the President of the Supreme Administrative Court of Greece (called the Council of State) to form a Cabinet in order to carry out elections and dissolve Parliament.
Mr Pikrammenos has recently appointed an interim Cabinet, mainly composed of diplomats, academics and former ministers. All sixteen members have agreed not to draw any salary for their work in the interim Cabinet.
Theoretically, the appointment of a judge as Prime Minister is a violation of major constitutional principles. It is more difficult, if not impossible, for the judiciary to be independent of the executive if a judge is in charge of the executive! The notion of the separation of powers is also ‘shot to pieces’ by the appointment of Mr Pikrammenos, especially when you consider that there is now no effective legislature from which the powers of the executive & judiciary should be separated.
However, on a more pragmatic level, there are several reasons why selecting Mr Pikrammenos’ was a relatively tidy solution to Greece’s constitutional problems. Firstly, the citizens of any democracy would, presumably, feel more comfortable with a judge in power. Control by the executive (the ‘machinery of state’) would smack too much of dictatorship, especially in Greece.
Secondly, the Greek Cabinet chose Mr Pikrammenos to become President of the Council of State in 2009 and so it could be argued that he has (very limited) democratic legitimacy.
Thirdly, Mr Pikrammenos is probably one of the most able candidates available. Mr Pikrammenos, an experienced administrative lawyer and judge, has knowledge of how government policy works in practice and how it impacts upon citizens.
Finally, it is important to remember that making a judge Prime Minister is a temporary solution and one that is only used in extremis. Greece is expecting to hold elections on 17th June.
Mr Pikrammenos’ name translates as ‘Mr Embittered’. It is likely that he will be after his month in office.