LAW SOCIETY JOURNAL
SYSTEMS OF JUSTICE IN TRANSITION - CENTRAL EUROPEAN EXPERIENCES SINCE 1989
Eds:JiYí PYibáH, Pauline Roberts and James Young
ISBN:0 7546 23173
When Communist regimes took over the government of Central and Eastern Europe, following the descent of the Iron Curtin, the judges became, by and large, "tools of class justice". Courts came under the effective control of Ministries of Justice. Many constitutional courts were simply abolished. Final decision-making was transferred to National Assemblies, which is what the people of Hong Kong recently discovered had happened to them. We should not be too shocked about this. The House of Lords judicial bench is, in form, a committee of the British Parliament. The Privy Council, in form, is a body of the Executive. Yet in substance those distinguished courts are completely independent. Not so in Eastern Europe before the collapse of the Soviet empire.
This book traces the progress of moves towards judicial independence and effective institutions respecting the rule of law. It comprises papers written by experts for a conference at the Cardiff Law School of the University of Wales in late 2001. The chapters make fascinating reading.
An excellent introductory chapter by two of the editors sketches the overall scene. There is no gilding of the lily. Nor are the problems of the transition understated.
The succeeding chapter by Wojciech Sadurski is of special interest to Australians. He was appointed more than a decade ago to the Sydney Law School and now holds a post in the European University Institute in Florence. Whilst acknowledging the admiration that many post-Communist constitutional courts had won amongst their own people, Sadurski expresses an anxiety about "the problem of judicial activism" which has a distinct Australian flavour.
There follow eleven chapters, written by national experts on both broad themes and country progress in moving to a rehabilitation of the judicial branch.
Among the themes are some that of relevance to the law in Australia. These include the attempts to enact laws with retroactive effect for heinous acts and the constitutional response to such laws; the practical difficulties of being a lawyer at a time of huge legislative output; the use of the doctrine of proportionality in judging the acceptability of marginal departures from constitutional norms; the use of international law to stimulate home-grown legal solutions; the importance of judicial salaries for the quality and ethics of judicial officers; and the relationship of contemporary judges with the media who have the power to select what ordinary people hear about the doings of the court.
There are excellent individual chapters on judicial developments in Hungary, Poland, Slovakia, the Czech Republic and Slovenia. Although these chapters show the differences between courts in Australia and those in the countries of study, it is an amazing historical development that is sketched here. Reported surveys show that courts (33) have a long way to go to catch up with community confidence in educators (80) and even police (61). However, coming from the background described, it is little wonder.
In our multicultural society, Australians should know more about the rapid changes in Eastern Europe. This book is an excellent introduction for lawyers. Perhaps we should have a university centre in Australia for cooperation with, and study of, the new courts in Central and Eastern Europe. By going back to bedrock, as they have been forced to do, the lawyers of Eastern Europe may even have some lessons on fundamentals for Australia's legal system.