The Supreme Court needs to be rebuilt because it is being “controlled by leftists and foreign forces.” – PiS leader, Jarosław Kaczyński
After the Law and Justice (PiS), Poland’s right-wing ruling party submitted a draft law that would replace all Supreme Court judges except those chosen by the justice minister, critics accused it of an assault on the constitutional separation of powers. But the party says it’s part of a long-term reform of the country’s judiciary, which is seen as inefficient and demoralised by many.
Mutual distrust has marked relations between the judiciary and PiS since the party was established in 2001. The name chosen reflects a desire to take the initiative in the space. PiS leader Jarosław Kaczyński, 68, and his trusted justice minister, Zbigniew Ziobro, 46 – both lawyers by training – have been long demanding, among other things, the removal of judges who worked for the Communist regime and improvement in the functioning of courts.
“Everything we’ve done so far was included in our agenda for the 2015 election”, Andrzej Matusiewicz, an MP from PiS and the rapporteur of the controversial project, told Euronews.
Since taking power in October 2015, PiS has introduced new legislation pertaining to the prosecutor’s office, amended the Code of Criminal Procedure and Penal Code, and, last week, pushed through new laws on common courts and the National Judicial Council, the body that appoints judges. The last two were swiftly approved by the upper house of the parliament and are waiting to be signed by the president.
The Supreme Court needs to be rebuilt because, according to Kaczyński, it is being controlled by leftists and foreign forces.
“In this particular bill, we’re inspired by our legal traditions, including those from the 1928–1939 period, when the Court was shaped similarly in many cases”, Matusiewicz added. He also insisted that the minister’s final say in choosing new judges reflects the solution followed in Germany. Nevertheless, the Polish Judges Association IUSTITIA has challenged this, pointing out that German regions all have separate systems in this regard.
The common thread to all the changes made so far is to give more powers to both parliament, where PiS enjoys a solid majority, and to the justice minister. He acts as general prosecutor, will personally appoint heads of common courts and will likely receive the ability to decide which judges from the Supreme Court retain their posts. Ziobro, known as “sheriff” among supporters, one month before 47th birthday, is to become one of the most powerful persons in the country will get the power that no other minister after 1989 had.
“His role is already significant”, Matusiewicz admitted. “However, these are judges themselves who can only decide on their judicial independence. I believe that the proposed changes will free them from any sort of pressure, coming from either their own environment or, particularly, politicians”.
Current developments follow the last significant change made in late 2015 when PiS pushed through series of bills that reduced the power of the Constitutional Tribunal, Poland’s highest court. The crisis sparked massive demonstrations in the country and prompted the European Commission to take the unprecedented step of launching an inquiry into the PiS’s management of the judiciary.
Nail in the coffin
“This is when disassembly of the rule of law started”, Jerzy Stępień, a former head of the Constitutional Tribunal (2006–2008), told Euronews. “Later, it went through different stages, including liquidation of the independent civil service or taking over public media, but now, if the bill on Supreme Court is passed, the coffin called rule of law will be shut definitely”.
According to Stępień, PiS reforms will promote judges ready to “obey” the minister and will downgrade their role to that of “political officers”. He also noted that the Supreme Court is responsible for assessing the validity of elections. “Mr Ziobro ended his legal career barely passing his exam in the prosecutor’s office, and because of the poor result was told he couldn’t dream of working there. The paradox is that now he’s the head of all the prosecutors”, Stępień said.
However, PiS know they can count on a trump card – Poles’ traditionally low confidence in public institutions, including courts. According to a study conducted in 2016, 60 percent of interviewees agreed that courts care mainly about their own interests, and 57 percent thought judges are corrupt. “I don’t expect people to defend judges”, Stępień commented. “But I still hope they will wake up and stop the agony of Poland’s democracy”.
Return to communism?
“Polish courts need to be reformed, but it’s also true that for the last two years we’ve been experiencing a permanent attack on judges from pro-government media. The PiS reform isn’t aimed at giving back the judiciary to the people, as they say, but to one party, the same as in communism”, Borys Budka, an MP from the centre-right Civic Platform, the main opposition party, and a former justice minister (2015), told Euronews.
Budka also confirmed that after the recent crisis the opposition, hitherto far from being united, will take a unified stance against PiS and will consider creating common lists before the next election.
Much to Stępień’s satisfaction, on Sunday between 4,500 (according to the police) and 10,000 (according to the city hall) protesters took to the streets in Warsaw, but also in smaller cities, to protest against court reforms. PiS moves were also met with concern by international institutions.
Earlier this week, leaders of five parties in the European Parliament said in a joint letter that the new laws “are not compatible with EU treaties”, urging the European Commission to “clearly outline the consequences of (their) adoption”.
“We’re democratically elected and have all the legal rights to continue with our cure of the judiciary”, Matusiewicz commented. When it comes to protests, he said those who gathered together “rankled” and “called for disobedience against the government”. “Total opposition aggressively attacks each and every initiative we propose,” he added.
Similar explanations were given by the Polish state media controlled by PiS. In the flagship TVP Info news channel, the demonstration was called an attempt to organise a “putsch” to overthrow the cabinet, while the people who attended were labelled “militants”.
‘Fight without weapons’
One of the so-called ‘militants’ was Wanda Traczyk–Stawska, a 90-year-old veteran of the 1944 Warsaw Uprising, who describes herself as politically independent.
“We ask you: be wise and rich in kindness. There’s no hatred, revenge, there’s an action that is wise and should make the whole nation feel dignified. Fight, but without weapons”, she told the crowds.
Her message will unlikely make an impression on the government. “We’re determined to pass these changes”, Matusiewicz admitted. “Later, we’ll have a great deal of work to modify further civil and criminal proceedings, among other things. This is only the beginning”.
By Dariusz Kalan