Under the guise of anti-communist rhetoric, there is a populist assault on the independence of the judiciary in Poland
When the Hungarian Prime Minister Viktor Orban had a parliamentary majority, he pushed through dramatic changes to the Fundamental Law of Hungary in 2011. In Poland, Orban’s autocratic counterpart, Jarosław Kaczyński, does not have the same majority to change the constitution. However, this does not stop him from remodeling the political system according to his wishes.
Since the conservative Law and Justice party (PiS) swept into power during the Polish general and presidential elections of 2015, it has gained considerable means to change the country according to the illiberal vision of Jarosław Kaczyński, the party chairman. Mr. Kaczyński, officially only an MP, is in fact the most influential person in Poland and effectively orders both PM Beata Szydło and President Andrzej Duda, whom he anointed for their respective positions.
Mr. Kaczyński controls the legislative and the executive, but he has feared that the strong, independent judicial branch – especially the Constitutional Tribunal – would once again oppose his planned reforms as it did during PiS’s previous short term governing from 2005 to 2007. For that reason, the offensive against the rule of law started with a total political overhaul of the Constitutional Tribunal, which is now helmed by justice appointed by his party. This move, unprecedented in the history of democratic Poland after 1989, was heavily criticized by academic and professional legal communities and has sparked large civic protests in the streets. It was also the reason for the European Commission to trigger the rule of law procedure against Poland.
After taking over the Constitutional Tribunal, it appears to be now time for increasing political control over the rest of the judiciary. The three new laws include:
1) already adopted amendments to law on the National Council of the Judiciary of Poland, an institution that appoints judges. According to the new bill all sitting members of the Council are dismissed and new ones will be appointed by the parliament,
2) already adopted changes to law on judges, giving the Minster of Justice powers to personally replace and fine the chief judges of common courts,
3) currently discussed law on the Supreme Court.
According to a draft law on the Supreme Court currently discussed in the Polish Parliament, the term of sitting SC judges would be ended and those who remain would be personally selected by the Minister of Justice who is also Persecutor General. In this new system, the separation and balance of power is greatly diminished. The highest court becomes dependent on one politician with extremely wide catalogue of competences. As of today, this person is Mr. Zbigniew Ziobro, a trusted ally to Mr. Kaczyński. What sparks public fears and a wave of street protests is not only this extraordinary concentration of powers, but also the fact that Supreme Court validates election results. The next general election takes place in 2019.
Mr. Kaczyński’s own sympathies and deep-rooted convictions are part of official justification for recent and planned highly controversial changes in the system of appointment of judges and in personal makeup of the Supreme Court. The Law and Justice chairman claims that after Poland’s transition to democracy, the judiciary was never properly vetted and that judicial elites of the Third Polish Republic are the same people or progenies (!) of judges who worked for and benefitted from the oppressive regime before 1989. Irrespective of facts, Kaczyński seems to have a twisted morality where children should bear the responsibility for the actions of their parents. Interestingly, Kaczyński’s anti-communist sentiment is highly selective and does not apply to such figures as Law and Justice’s MP Stanisław Piotrowicz, an infamous communist-era persecutor.
Speaking of facts, not opinions, all judges of the Supreme Court were vetted after 1989 following the lustration law introduced in 1996, which was amended in 2006 for all sitting judges and judicial candidates of common courts wherein they are screened to ascertain whether they worked for or collaborated with the communist services. With an inevitable passage of time, lustration laws no longer apply to younger public servants, who entered professional life after 1989 and during democratic Poland. A prime example of this generational change in Polish public life is President Andrzej Duda, PhD in law, himself 45 years old.
However, according to Kaczyński’s logic, most of the judiciary is irreversibly tainted and by default compromised and should be replaced by new elites, chosen not on merit, but on political allegiance to Kaczyński’s vision. Law and Justice won 2015 elections, among others, on fueling this anti-elitist populist and ant-communist sentiment. The latter is strong in Poland almost 28 years after the regime change, especially among the generation of people born after 1989, thanks to a decade of historical propaganda efforts of Law and Justice.
In addition, Mr. Kaczyński’s party skillfully took advantage of the widespread dissatisfaction with the judiciary among Poles. While scholars of law and democracy have been proud of many achievements of the Polish judicial branch during the last quarter century, the average Poles’ experiences with judiciary are often negative. Lengthy proceedings, corruption scandals and perceived arrogance of the judiciary made it an easy target. Nevertheless, the value of rule of law and the appreciation for liberal democracy has not been forgotten in Poland overnight. The most recent wave of bottom-up protests in many Polish cities, organized by civil society groups, is a reminder to that.
What does the reform of the Supreme Court hold for the future of Polish democracy?
The Supreme Court examines electoral complaints, validates general and presidential elections as well as national and constitutional referenda. Moreover, it considers complaints of political parties who were refused public subsidies. The First President of the Supreme Court is by default the head of the Tribunal of State, an institution, which holds public officials accountable for breaching the Constitution.
While the Constitutional Tribunal is a guardian to our values and rights enshrined in the constitution, the Supreme Court assures that liberal democratic checks-and-balances work properly and that there is room for political pluralism and party competition. A political overhaul of two key oversight institutions enormously imbalances the Polish system.
Anna Wójcik is assistant editor at Visegrad Insight and researcher at the Institute of Law Studies of the Polish Academy of Sciences. Twitter: @annawojcik