Author: Nicholas Richardson, Partner at Richardson & Wspólnicy (see website)
“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.” The words of United States president Andrew Jackson have (recently) assumed greater relevance in Poland as many thousands took to the streets in Warsaw and other Polish cities to demonstrate against the latest changes to judicial arrangements brought forward by the government.
According to demonstrators, the ruling Law and Justice (PiS) party is dismantling the rule of law and, in effect, “introducing dictatorship” by the ruling party’s leader, Jarosław Kaczyński. PiS supporters have criticized the courts for taking too long to hear cases and have accused judges of being an elite, self-serving clique out of touch with the problems of ordinary Poles. For its part, the government has said that changes are needed to reform a judicial system which is in its opinion inefficient and sometimes even corrupt.
In Warsaw there was a protest outside the Supreme Court on Sunday evening, following a demonstration outside the Polish parliament. A spokesperson for the National Council of the Judiciary (KRS), a constitutional body tasked with safeguarding the independence of courts and judges, and one of the bodies that is to be reformed, said: “We are at the precipice of dictatorship and breaking all the rules of the constitution”.
So what are the changes? A government-backed bill would see the judges of the Supreme Court (not to be confused with Constitutional Tribunal) being forcibly retired with their reinstatement possible only with the approval of the justice minister. While the government has said that only “highly qualified” and “ethical” people could become judges, the opposition believes that this change would give excessive power to the justice minister, thus undermining the independence of the court. A second bill would change the way that heads of district and appeals courts are appointed, making the justice minister solely responsible for such decisions. And a third bill would change the composition of the KRS itself, with the terms of 15 of its members who are judges being phased out, and their replacements selected by parliament — not by other legal professionals, as is the case at present.
Justice Minister Zbigniew Ziobro, who is also the chief public prosecutor, told public broadcaster TVP that the changes serve democracy and citizens. In his opinion, the Polish judiciary had “almost totally broken away from democratic control mechanisms”, and the justice system would now be equipped with “tools to deal with increasingly frequent irregularities in the judiciary”. He is certainly going to be very busy, and PiS’s commitment to hard word was demonstrated by yet another nocturnal legislative effort last week to pass the first bill.
The opposition Kukiz ’15 grouping, has proposed that judges on the (KRS) be chosen either directly by citizens or by a qualified majority in parliament. Party leader Paweł Kukiz met Polish president Andrzej Duda on Monday to discuss the changes. Following the meeting he said that while his grouping believes “the Polish judiciary requires “thorough reforms and profound personnel changes”, the courts “cannot be politicized, and it is absolutely unacceptable that only one party and its justice minister decide on their shape.”
What does this mean? Each change, of itself, may have had some merit, but it is the cumulative effect, starting with the neutralizing of the Constitutional Tribunal, that is a cause for concern. While those behind the changes may be honourable men and women acting from the highest of motives, the fact remains that laws may be passed and applied with no independent scrutiny simply because, at each stage of the process, from deciding whether the law is constitutional to the decision in each case in which the citizen is involved, the judges will be persons owing their appointment to one political party.
If one believes in a democratic system where the electoral winner takes it all, and where any suggestion that the government has a duty to rule for the good country as a whole, may be rejected as the disloyal bleating of losers or, worse, as challenges to the democratic will, so be it – there is nothing to fear. If, however, one has a sufficient sense of history to recognize the wisdom of Lord Acton’s dictum that power corrupts and absolute power corrupts absolutely, one is apt to be a little less sanguine.
For more posts from Richard visit his ‘The Polished lawyer’ blog