The current deep crisis of the rule of law in Poland should not come as a surprise. It fits in with the general, populist narrative, which is familiar not just to Central Europe but also to its older, Western sister.
After more than 30 years since the first, almost free elections and joining the EU 15 years ago, the danger of “Polexit” is quite possible.
The EU has been a source of support, covering the costs and distributing funds. As a former Polish Prime Minister and a Deputy Prime Minister Waldemar Pawlak used to say: “we can squeeze the Brussels sprout”. He meant getting as much money for national investments as was possible.
The community was mainly seen as a generous sponsor, distributing funds and virtually undemanding. The foundation of the rule of law was quite often mistaken for a building foundation. Because Poland was a construction site. Bridges, stadiums, bike paths, libraries and concert halls. Signage indicating “the use of European funds” can be found on most new public facilities.
The simple perception of the EU as a bank or even a loan and assistance fund ended quite abruptly. It turned out that for the EU, apart from infrastructure development, institutions and values are important. And one of them, the basic one, is the rule of law.
Law of war
The rule of law does not have a very good tradition in Polish social relations. The national poem “Pan Tadeusz” by Adam Mickiewicz, son of a lawyer, whose nationality is one of the still unresolved issues between Poles, Lithuanians and Belarusians, talks about the dispute and conflict. The method of solving a conflict is neither negotiation nor settlement, but the armed invasion of opponents. Paradoxically, permitted by law.
Mickiewicz’ obligatory reading in school seems to resonate with many Poles. Every year, several million cases are brought to court, while the Polish population amounts to 38 million.
In merchant traditions, the “win-win” strategy seems alien to most citizens. They come to the courts to obtain both judgment and justice; they are also foreign to politicians responsible for justice.
For thirty years since the 1989 election, the Minister of Justice changed statistically every year. A comprehensive reform of the justice system was yet to be carried out. Court fees were raised and lowered. Similarly, the remuneration for proxies.
There is still no effective legal aid system for the poorest and vulnerable persons, and this should be of the guarantees for access to the court. The specialist commercial court system aimed for settling business disputes faster and more efficiently was liquidated and again restored. Small district courts were combined with larger ones to be re-created later.
Myths about the judiciary
The average Polish judge is about forty years old and is a woman. She began her career in jurisprudence already under the new Polish Constitution, she studied European law on an ongoing basis. It is a myth that Polish judges are tainted by communism.
It is also a myth that judges were open to dialogue, cooperation, even with civil society, clearly communicating the solutions and subtleties of the regulations. Themis wore the blindfold not only in front of her eyes, but sometimes covered her mouth with it. Courts spoke with its verdicts only.
Court spokespersons often duplicated complicated provisions in their statements, and letters sent from courts were incomprehensible. The citizen was aware that in the court nothing pleasant would meet him or her, and even if the citizen won the case, he or she would not understand the sentence. Procedural justice and compliance with the rule prevailed. Justice was at the backdrop.
To quote Nobel Prize laureate Olga Tokarczuk from her Nobel speech: “he who has and tells a story – rules”. The Law and Justice government that dominates Polish politics, with a second term in office, slightly inverts this sentence: it both rules and tells the story.
The villains of this story are of course judges. Judges harming poor citizens, showing no empathy and understanding. Judges applying European law prior to national law or asking for primary ruling the EU Court in Luxembourg (CJEU).
Lastly, judges recall that the rule of law and its related requirements of the impartiality of the courts and the independence of judges are universal and keep us still in the European Union. Judges have a duty to speak loudly in a public debate because it is a part of their judicial service.
Other authorities, who were reluctant to deal with an independent justice, gladly joined the choir of dissatisfied. A massive “Fair Courts” advertising campaign paid for by the government resulted in urban legends about a judge who stole a sausage or released a paedophile. This had no precedent in the Polish public space. Public acceptance of judicial reform increased.
The only problem is that the reform of the justice system so far has a personal character. Changes were made to 140 positions of presidents and vice presidents of courts, appointing new people, often without any management experience, nor earning the respect of fellow judges.
This was repeatedly announced by the government as a success, however, the random assignment of cases to judges is transparent only in theory. No one was given the algorithm, despite the recommendations by watchdog organisations.
The National Council of the Judiciary (NCJ), contrary to the Constitution of the Republic of Poland, was appointed by politicians. For 15 available member seats – reserved for judges – only 18 candidates applied. The other judges were in no doubt that the selection procedure violated the law.
The Disciplinary Chamber of Supreme Court, which is to remove “black sheep” and corrupt judges, in accordance with the January resolution of three full chambers of the Supreme Court, can no longer be considered a court. This was already pointed out by the CJEU. In this regard, the Court shared the views of both theoreticians and practitioners of law: it reminded the rulers that such a “special court” could only be created during a war.
The recently published “muzzle law” prohibits judges from speaking on political topics without defining them. It also prohibits the practical application of the CJEU judgment, because judges will not be allowed to examine whether a court is properly appointed (i.e. by members of the NCJ). The circle closes. The legislator creates a law inconsistent with the order, the courts react to this by eliminating regulation from the legal system. Then the legislator changes the law again.
No definite answer
Almost every day of 2020 brought a twist in the legal universe. A judge of the district court in Olsztyn, Paweł Juszczyszyn, was suspended in his duties by the Disciplinary Chamber, which according to the resolution of the three chambers of the Supreme Court is not a court. The president of the court loyal to the authorities (and also a member of the NCJ) took his cases and blocked his computer.
Juszczyszyn, not recognizing the ruling in his case, issued by a non-court authority, comes to work every day, sitting in his office in front of a dark screen monitor.
There is no definite answer to the question: “Quo Vadis, Polish Themis?”. Honestly, it is worth saying that the current deep crisis of the rule of law in Poland should not come as a surprise. It fits in with the general, populist narrative, which is familiar not just to Central Europe but also to its older, Western sister. Years of neglect in the Polish yard intensified the trends already present.
The economic engine of political and social changes through the “invisible hand of the market”, thereby neglecting values, is another reason for the current crisis.
The need to find an easy enemy and direct the public’s attention to this enemy is yet another social engineering technique. We already know the disease; the diagnosis is made. Not only does the disease need treatment, but it is necessary to discover a vaccine so that the populism virus can be disarmed at an early stage.
It is necessary to build a so-called legal complex or cooperation of legal circles in the name of values. The legal environment should be the guarantor of individual, personal and political rights.
Citizen at the centre
Orwell’s “1984” was a kind of documentary for Central and Eastern Europe, when it chiefly came across as a warning for the rest of Europe. Legal awareness and guarantees of civic freedoms should be our shield against the “newspeak”.
Modern and effective civic education should not be overlooked, so that all individuals know their rights and the possibilities of pursuing them, especially in confrontation with the authorities. Citizens thus educated will join the defence for more values. On one condition: it is crucial to abandon the “court-centric” narrative, i.e. the story of the rule of law should be from the point of view of a citizen and not a lawyer.
It may help to find a real European foundation, stronger than the tons of concrete poured on Polish construction sites.