Marcelina Palamar is an undergraduate student at the University of Cambridge. She is currently interning at the OECD.
Despite once being a shining beacon of democracy and political progress in both Eastern and Central Europe, Poland now finds itself at a crossroads as a streak of democracy-eroding political decisions undermines the foundations of its legal system. As a result of the ever-tightening governmental grip on legal services – seen in a new judicial reform that aims to increase the power of the leading party by stripping judges of their autonomous powers - Poland has experienced the largest decline in the rule of law among all European Union nations over the last year[1]. And while democracy in Poland remains far from fully eroded, the outcome of the upcoming autumn elections may result in a significant – if irreversible - setback for the independence of the judiciary.
The ruling national-conservative Law and Justice Party, also known as PiS, is a major catalyst for these undemocratic shifts, as the party has continued to implement controversial overhauls of the judiciary, the media, and other institutions since coming to power in 2015. In response to a chorus of international criticism (from both the European Commission and the United States), PiS replies that they are simply biased and misinformed outsiders[2]. It’s clear, however, that the decay of Polish democracy points to the widening cracks in the stability of political systems, not just in Poland but in Central and Eastern Europe as a whole, as democratic governments gravitate towards populism and so-called information autocracy.
To fully understand why PiS finds itself in such a problematic spotlight today, it is imperative to examine Poland’s latest judicial legislation in relation to its historical context. The Round Table negotiations of 1989 saw the Communist Party and opposition representatives engage in democratic reforms that led to the peaceful overthrow of the communist system[3]. As part of these negotiations, the National Council of the Judiciary was introduced by the Communist Party as a concession, a bottom-up initiative put forward by legal experts and judges associated with the Solidarity trade unions during the early stages of the democratic transition[4]. The fall of communism in Poland necessitated the establishment of judicial self-government and the strengthening of the General Assemblies of Judges, which marked a crucial step towards the country’s democratisation. The principle of judicial self-government granted judges certain decision-making powers, either directly or through their representatives[5]. This ensured that the judicial sector remained separate from the legislative and executive sectors, thereby safeguarding their independence.
However, the implementation of new laws in 2017, which granted the parliament a greater say when appointing and penalising judges[6] has threatened the very independence of judicial self-governance. Not only have the changes severely undermined the autonomy of the National Council of the Judiciary, but they have also given the executive branch excessive control over the judiciary[7]. As a consequence of the new laws, vital positions in court administration were replaced, and the Supreme Court was restructured[8].
This didn’t happen without a fight – rallies, marches, and strikes were and continue to be organised by Polish judges. They have also mounted numerous legal challenges against the legislation. Despite this pro-democratic resistance, what ultimately triumphed was neither the ferocity, unity, nor public support for the legal community, but rather the government's greed and desire for power.
Any attempt to interfere with the independence of the judiciary is a severe blow to the country’s democratic foundations, threatening to undermine the rule of law and the separation of powers which are essential elements of a functioning democracy.
The government justifies its actions by accusing the judiciary of practising nepotism, corruption, laziness, and of misuse of power during communist rule in a blatant attempt to undermine the integrity and credibility of the judiciary. Given that democracy is at stake, such behaviour is unacceptable and cannot be tolerated. The government must be held accountable for its actions and the judiciary must be allowed to operate independently without any external interference – just as international commissions and councils standing up for Polish judges have shown. Any attempt to interfere with the independence of the judiciary is a severe blow to the country’s democratic foundations, threatening to undermine the rule of law and the separation of powers which are essential elements of a functioning democracy.
Pro-democratic marches, protests, and acts of ‘civil disobedience’ must continue to mount pressure on the government. Just like with the Women’s Strike of 2020 that brought Warsaw to a standstill, civilians need to fight against ‘the ruling party’s way of existing [which is] to create conflict’, as Magdalena Biejat, a Polish MP, put it in an interview with the New Yorker[9].
The Polish government’s claim that the implemented judicial reform enhances democratic accountability and improves the court system’s effectiveness is a mere facade. Poland isn’t fooling anyone – the European Commission's decision in December 2017[10] to use the procedure, criticised in Article 7 of the EU Treaty against Poland for defying the rule of law, serves as a warning sign that the country’s actions are being watched and scrutinised by the rest of the world. Despite the fact that the de-communization process still awaits completion, the recent reforms are an attack on democracy and a step away from judicial transparency and independence –overall boding well for the future of Poland’s democracy.
The government plays on a national scepticism of the legal system stemming from the fact that the initial transition in the justice system’s organisation, being primarily carried out by legal means without consulting the people, excluded a significant part of society from law-making, interpretation, and application processes. This exclusion has persisted for generations, in turn strengthening PiS’s supposedly sincere argument that aims to highlight the excessive complexity of the judiciary. Citizens susceptible to falling under PiS’s spell, and those simply against the current judiciary system, have long complained of the poor communication between the courts and the rest of society. This misleading perception of judges as being above the social constraints of law only provides further fertile ground for PiS’s undemocratic tactics.
The European Commission has done well to punish the government for its blatant attacks on Polish democracy. There is no denying that the judiciary was taken over by certain post-communist elites following Poland’s flawed transition to democracy in 1989[11]. However, reforms must be conducted in a way more conducive to involving the rest of civil society. Despite Poland’s desire to secure its future as a democratic and Western country, the PiS’s description of themselves as a victim of the EU’s liberal-left consensus on moral-cultural issues (in response to the Commission’s decision) only further confirms the party’s backwardness and ignorance regarding Western European values.
The public does believe that judicial reform is imperative, as evidenced by an overwhelming 81%[12] of survey respondents. However, PiS’s proposed reforms in 2017 and their continuous alterations nevertheless remain power-grabbing manoeuvres rather than genuine efforts to improve the system. How can such punitive and corrupt methods utilised to decommunize the judiciary be seen as anything other than excessive given that the means employed to serve this aim affect all judges, regardless of their actual role in the communist system?
The fate of the law is not the only concern of PiS – it must also somehow win back the Poles' trust, a majority of whom hold the governing body accountable for the potential loss of EU facility funds.
Strategically thinking ahead of the upcoming autumn’s parliamentary poll, PiS has revised the judiciary reform to regain the trust of voters, whilst in the same move wishing to unblock Poland’s share of EU Recovery and Resilience facility funds[13]. However, due to a presidential review, the decision on the law’s future now rests with a divided constitutional tribunal, making it highly unlikely that Warsaw will receive the necessary funds before the election takes place. The fate of the law is not the only concern of PiS – it must also somehow win back the Poles' trust, a majority of whom hold the governing body accountable for the potential loss of EU facility funds. Despite PiS accusing its political opponents of colluding with Brussels to appeal to voters[14], the party remains concerned that the opposition will capitalise on the freezing of these funds as a major campaign issue in the upcoming election.
Securing these recovery funds, then, has become a significant litmus test of the Polish government’s broader effectiveness and could have detrimental outcomes for PiS. Neutralising the ‘rule-of-law’ conflict with the EU political establishment and securing the release of these funds would have been a major political success for the ruling party, undercutting one of the most important opposition talking points and reassuring political investors and the financial markets, thereby stabilising the Polish currency, and reducing inflation and the cost of government borrowing. The reform, unfortunately, is not likely to be completely neutralised. The EU has expressed serious doubts about the tribunal’s independence and impartiality, launching further EU Court proceedings and charging PiS with undermining the EU’s legal order. Now facing such a major challenge in securing the funds it desperately needs to stabilise the country’s economy, PiS needs to rethink its course of action and do what is morally right. The country’s drop in democratic rankings was driven particularly by lower scores for constraints on government powers and fundamental rights.
Therefore, it’s clear that the Polish government must work to address these concerns and restore the independence of the judiciary. Doing so would not only help the country regain the EU’s trust but also ensure that Poland remains a stable and democratic society. Immediate steps are needed to rectify the situation and restore the independence of the judiciary. Failure to do so will only further erode the country’s democratic credentials and risk isolation on the global stage. All members of society must be urged to act to encourage an increase in pressure on the Polish government. However, regardless of what happens next, it is certain that Polish democracy may never be the same.
Notes
[1] WJP Rule of Law Index. World Justice Project. Accessed June 3, 2023. https://worldjusticeproject.org/rule-of-law-index/. [2] Szczerbiak, Aleks, ‘Why Does the Polish President’s Judicial Reform Law Constitutional Referral Matter so Much?’, Notes From Poland, March 15, 2023. https://notesfrompoland.com/2023/03/13/why-does-the-polish-presidents-judicial-reform-law-constitutional-referral-matter-so-much/. [3] Śledzińska-Simon, Anna. ‘The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition.’ German Law Journal 19, no. 7 (2018): 1839–70. [4] Ibid. [5] Ibid. [6] Szczerbiak, Aleks, ‘Why Does the Polish President’s Judicial Reform Law Constitutional Referral Matter so Much?’, Notes From Poland, March 15, 2023. https://notesfrompoland.com/2023/03/13/why-does-the-polish-presidents-judicial-reform-law-constitutional-referral-matter-so-much/. [7] Ibid. [8] Ibid. [9] Gessen, Masha. ‘The Abortion Protests in Poland Are Starting to Feel like a Revolution.’ The New Yorker, November 17, 2020. https://www.newyorker.com/news/our-columnists/the-abortion-protests-in-poland-are-starting-to-feel-like-a-revolution. [10] “Press Corner.” European Commission - European Commission. Accessed June 3, 2023. https://ec.europa.eu/commission/presscorner/detail/en/IP_17_5367. [11] Szczerbiak, Aleks, ‘Why Does the Polish President’s Judicial Reform Law Constitutional Referral Matter so Much?’, Notes From Poland, March 15, 2023. https://notesfrompoland.com/2023/03/13/why-does-the-polish-presidents-judicial-reform-law-constitutional-referral-matter-so-much/. [12] Śledzińska-Simon, Anna. ‘The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition.’ German Law Journal 19, no. 7 (2018): 1839–70. [13] Szczerbiak, Aleks, ‘Why Does the Polish President’s Judicial Reform Law Constitutional Referral Matter so Much?’. Notes From Poland, March 15, 2023. https://notesfrompoland.com/2023/03/13/why-does-the-polish-presidents-judicial-reform-law-constitutional-referral-matter-so-much/. [14] Ibid.