The judiciary is a favoured target for Poland’s governing party
Poland’s governing party, ironically named Law and Justice (Prawo i Sprawiedliwość, or PiS), took power in October 2015. Like many populist right-wing parties, it regards the judiciary as an enemy. The party’s leader, Jaroslaw Kaczynski, has condemned what he calls “legal impossibilism,” a mysterious and vague term that apparently means exercise by judges of independent constitutional power. What’s the Polish solution for legal impossibilism? Judges must be made to bend to the will of the people as interpreted by elected politicians, no matter how suspect the election that brought them to power.
Shortly after forming the government of Poland, PiS packed the country’s Constitutional Tribunal with party hacks to make sure the tribunal didn’t get up to mischief. (The tribunal’s job is to decide whether government actions are constitutionally permitted.) Then, in July 2017, PiS launched a multi-pronged frontal attack on Poland’s judiciary. First, it proposed that members of the National Judicial Council, which chooses the country’s judges, be selected by parliament rather than by other judges. Second, it proposed that the heads of lower courts be appointed and dismissed by the minister of justice. Third, it proposed that the minister of justice be given the power to fire members of the Supreme Court. There was widespread protest in the streets of Poland’s cities. Poland’s president, Andrzej Duda, initially threatened to veto two of the bills put forward, but on Dec. 20, following cosmetic changes, he signed the legislation. He explained in a speech: “What is happening is a deepening of democracy. The judges will no longer rule themselves. They aren’t some extraordinary caste; they are servants of the Polish people.”
Poland is a member of the European Union. The EU’s executive arm, the European Commission, took a dim view of the Polish government’s attack on the judiciary. When Duda signed the legislation, the EC said that Poland was “putting at risk fundamental values expected of a democratic state by allowing political interference in its courts.” It invoked Article 7 of the European Union treaty, the so-called “nuclear option,” and issued a formal warning to Poland, beginning a process that could lead to the country losing its voting rights in the EU and being denied financial transfers (which are considerable). PiS retorted that the EC was “elitist and condescending.”
The situation in Poland, and the Poland/EU impasse, has gone from bad to worse. This past July, in a dramatic move, the Polish government forced the retirement of one-third of the Supreme Court judges (those over the age of 65), including the court’s president, Malgorzata Gersdorf; once again, there were mass demonstrations by the Polish people. Lech Walesa, the leader of the Polish Solidarity movement that ended communism in Poland, a former president of the country and winner of the l983 Nobel Peace Prize, said in an earlier letter to the president of the EU, “We are calling upon the European Commission to take immediate steps to prevent the progressive dismantling of the independence of the judiciary in our country.” In July, Walesa announced he would lead a civil disobedience campaign.
Poland is not the only European country that has set out to subvert the courts. Similar developments have occurred in Hungary under Prime Minister Viktor Orban. Indeed, Hungary has set the pace, and it is often said that Hungary is the example that Poland follows. Orban has been further emboldened in his attack on the judiciary (and other democratic institutions) by his reelection this past April. In Romania, President Klaus Iohannis has been busy promoting changes to the judicial system like those of Poland and Hungary. The Czech Republic and Slovakia have been moving in a similar direction. The record of some countries in the region that are not members of the EU — step up Ukraine, Turkey and Russia — is dismal.
Many say that these attacks on the court system reflect a fundamental clash of values. Countries such as France and Germany prize democracy, the rule of law, pluralism and the right to dissent. Countries such as Poland, Hungary and Romania emphasize nation, faith and family. To downplay this stark analysis, the EC, trying to be pragmatic and business-like, has lately proclaimed that an independent judiciary is a prerequisite for sound financial management and that this is the EC’s main concern. No one is deceived.
U.S. President Donald Trump visited Poland in July 2017, just before the country’s government put forward the proposals to “reform” the judiciary. He gave a speech in Warsaw’s Krasinski Square that was said to have emboldened the Polish government. Trump proclaimed: “We must work together to confront forces, whether they come from inside or out, from the south or the east, that threaten over time . . . to erase the bonds of culture, faith and tradition that make us who we are.”
The New York Times commented on Trump’s speech: “He said nothing about the right-wing government’s crackdown on judges and journalists and its refusal to accept more migrants . . . He instead praised Poland as a defender of liberty in the face of existential threats.” Trump has also expressed support for Orban (unlike his predecessors, presidents Obama and George W. Bush).
Canadians should not be smug about the appointment of judges by politicians, raising doubts about the judiciary’s neutrality. It’s not just an Eastern European problem. Canada has the same issue, although no one pays it much attention. Perhaps we don’t pay attention because, despite doubts about the appointment process, we seem to have a resolutely independent judiciary. Judges, empowered by the 1982 Charter of Rights and Freedoms, are quite capable and willing to stand up to the executive branch. My opinion on the desirability of a Charter-empowered judiciary has gone back and forth over the years, but looking at Europe these days, it seems like a very good thing. Long live legal impossibilism!