The EU has a problem child, Poland. Since its election two years ago Poland’s governing Law and Justice Party stands accused of killing the separation of powers, judicial independence, fundamental rights and even democracy. EU values, Brussels has declared, are at stake, and, for the first time in its history, the EU Council has threatened to trigger Article 7 of the European Union treaty which, in theory, could strip Poland of its voting rights in Europe. ‘Full and frank discussions’ as they say, are in progress between Warsaw and Brussels.
The possibility of the EU actually suspending Poland’s voting rights are meagre – as Hungary stands by the Law and Justice party. In February of this year, the Hungarian parliament voted in favour of the government supporting the Law and Justice party in its fights with the European Commission over the rule of law. For Article 7 to be triggered by Brussels – the so-called nuclear option – leading to loss of Poland’s EU voting rights, all member countries must vote in favour of such a sanction to be imposed.
How has this crisis come about? In 2015, when the newly-elected Law and Justice Party blocked the instalment of five judges to Poland’s Constitutional Tribunal, it was accused of illegally replacing them with their own. At first sight this is true, but in reality it was the post communist liberal opposition who were initially responsible.
In June 2015, the centre-right Civic Platform Party, realising that they were going to lose the 2015 election, plotted to maintain their influence in government by ensuring they had a majority on Poland’s Constitutional Tribunal. In blatant violation of the Constitution, the country’s judges – mostly Civic Platform Party appointees – helped the then-ruling party to create a new law enabling judges whose terms would come to an end after the election to line their replacements up in advance. This ploy ensured that no significant legislation put forward by the governing Law and Justice Party would ever see daylight.
One of the promises made by the Law and Justice Party was to overhaul Poland’s deeply flawed judiciary. Polish citizens and even foreign firms are not happy with what goes on in Polish courts. In 2017 the US State Department blamed a slow and over-burdened Polish court system for chasing away foreign firms, who preferred to resolve their disputes in third-country courts or by offshore arbitration.
They complained of unlimited case-shopping, cases that dragged on forever with judges free to pass cases along before completion. They also complained about the President of the Court abusing his power, these matters resulting in inefficiency, bribery and corruption.
The Law and Justice Party has changed all that. Cases must now be randomly assigned, and time limits set for the resolution of cases. Judges are required to complete cases they start, enabling plaintiffs timely access to justice. In addition, as a safeguard against bribery and corruption, judges are compelled to publicly disclose their personal finances.
It has not gone down well. Newspapers depict a government busy court-packing and purging honest judges under the pretence of ridding the state of the imaginary remnants of communism. While at first glance this is a sinister image, reform is long overdue. It needs to be remembered that with the fall of the totalitarian regime in 1989 there was virtually no vetting of the judiciary. The then President, Jaruzelski, the man who ran Poland’s martial law government for the Soviets, nominated an entirely new bench of communist era judges to staff post-communist courts.
Only a small fraction of the judges of the Supreme Court were forced to retire. As for the judges in the lower courts, they weren’t even vetted, while many were in the course of time promoted. As a result judges who had locked up thousands of innocent citizens under Communism not only escaped justice in the nineties, but nearly three decades later, remain in office. We must remember that these judges elect judges. Why would anyone trust them?
Following a debate in the Polish Parliament the Law and Justice Party extended the vetting of all judges around the country and had also provided parliament with powers to elect the National Council of the Judiciary.
The EU Commission does not like this at all, accusing the Law and Justice Party of placing the judiciary under the political control of the government. What the EU commissioners seem to fail to recognise however is that in many European countries parliaments take an active role in judicial appointments. In Germany and Austria, politicians appoint judges. In France, Ireland, and Great Britain, although they do not hold a majority decision, judges participate in the nomination process.
Europe also objects to the fact that, allegedly in contravention of the Constitution, Supreme Court judges and the Chief Justice can be forced out of office. As suspicious as recent events might appear, the Constitution explicitly provides for a retirement age reform in Article 180, paragraphs 4 and 5 ; reducing the retirement age from 70 to 65 will affect one sixth to one third of Supreme Court judges. The exact number will depend on the President’s decision regarding those judges asking for their mandate to be prolonged by five years. In the UK, such decisions lie with the Lord Chancellor. As for the Chief Justice’s six-year term of office, the Constitution does not explicitly list any exceptions to ending it early. Legal scholars, however, agree that such exceptions have implicitly always existed. For instance when a judge dies, resigns or retires.
It is true that there are those Polish citizens who are worried about the future of their country, and are doing an excellent job of making their voice heard both at home and abroad. Society however is divided. Latest polls show that 44 per cent of Poles are in favour of the reforms, whilst 33 per cent oppose them, with 23 per cent holding no opinion. Despite the protests, the Law and Justice Party has a majority in parliament and after two years in office is still the most popular political party in the country enjoying the support of around 40 per cent of Poles.
Polish politics may be primitive, chaotic, and even ugly – after all it’s a democracy coming of age – but that doesn’t make the government undemocratic. Law and Justice’s judicial reform package, though not perfect, is an attempt to clamp down on obscurity, inefficiency, bribery and corruption, the Holy Grail of the rule of law.
Alexandra Tompson is British of South African (father’s side) and Polish roots (her maternal grandparents escaped Poland in 1939 and found refuge in London). She was raised in London in French schools and graduated in French and English Law from Exeter University in 2013. She worked in Paris and Vienna for NGOs as a legal analyst, and has moved to Warsaw this year, where she is currently working at the Trade and Investment Agency.
This article appears in this issue 12.9.18 of the Salisbury Review