Following Poland’s controversial reduction of the Supreme Court judges’ retirement age from 75 to 60, the EU has stepped up its pressure, referring Poland to the European Court of Justice (ECJ) for putting fundamental EU values at risk. Under these laws, 30% of Supreme Court judges have been forcibly retired since July, joining dozens of judges from the Constitutional Tribunal and National Judiciary Council removed since Poland’s national-conservative Law and Justice party (PiS) assumed power in 2015.
These alterations are no surprise, being one of the government’s many attacks on Poland’s rule of law, judicial independence, and protection of human rights. As Polish Ombudsman Adam Bodnar cautions, the government has taken over the independent institutions, ‘step by step, institution by institution’. These ominous words have clearly come to fruition. Shortly after election, PiS passed laws limiting the Constitutional Court’s jurisdiction, violated the Constitution by appointing new judges to the Court and swiftly took control of state broadcaster, Telewizja Polska, firing dozens of journalists in the process. In 2016, the government was granted power to appoint senior management positions in media corporations and to conduct surveillance beyond criminal investigations, without thorough safeguards. In 2017, PiS’s freedom of speech crackdown extended to a ban on counter-demonstrations in Warsaw. The dismissal of Supreme Court judges is only one of this year’s concerning legislative proposals. In February, new laws made terms such as ‘Polish Death Camps’ or mention of Poland’s Holocaust involvement punishable by up to 3 years in jail, to defend the ‘good name of Poland.’ Although the law has since been decriminalized, Polish citizens face greater dangers than a dependent judiciary as the government increasingly encroaches on fundamental civil rights like privacy, freedom of speech and assembly.
The government regards its new laws as necessary to improve the court system’s efficiency and weed out corrupt, communist-era judges. Prime Minister Mateusz Morawiecki argues that Western democracies do not understand the specificities of Poland’s legal system and that ‘far from being dictatorial or compromising judicial independence, as some charge, [the reforms] will introduce precisely the kinds of checks and balances that all liberal-minded people cherish in their own democracies.’ According to Morawiecki, General Wojciech Jaruzelski, leader of Poland’s martial law regime, could nominate communist-era judges for Poland’s post-communist courts. Regardless of whether claims of nepotism and corruption in Polish courts are accurate, they do not justify the government’s amendments. Rather than cleansing the courts of corruption, these laws have only given the capacity for corruption and abuse of power to the government.
An independent judiciary is well-established as crucial for functioning democracies. Holding the executive government accountable to the law, an independent judiciary thus plays an essential role in upholding fundamental rights such as freedom of assembly and expression. When laws shift control of the judiciary to the government, for example by enabling the Justice Minister to dismiss and re-appoint 20% of lower court presidents and vice presidents, the courts risk becoming puppets. Even though laws altering the retirement age of Supreme Court judges give current judges the option of requesting an extension, the decision is made solely by the President, without any criteria or review. Judge Dominik Czeszkiewicz captures this sense of powerlessness, telling Amnesty International: ‘I cannot fight the whole system. I don’t know when, where and from whom I will get a punch.’
The European Commission stated that Poland’s actions not only risk ‘serious and irreparable damage’ to its own rule of law and democracy but also the fundamental values of the EU. After over 2 years of fruitless talks, the European Commission triggered Article 7, the so-called ‘nuclear option’. This allows the EU to initiate punitive measures if Poland is found to be at ‘clear risk of serious breach’ of the rule of law. While this mechanism would enable the EU to impose sanctions and suspend Poland’s voting rights if passed through both the European Council and Parliament, these procedures lack expediency. In the meantime, the EU’s legal action against Poland is the most effective method of preventing further damage to Poland’s fragile judiciary, especially as the Commission has requested the ECJ fast-track proceedings and suspend Poland’s new laws in the interim.
Given Poland has been largely unresponsive through two years of talks with the EU and in the face of Article 7 sanctions, more coercive actions like fines, lowering development funding and legal action may be the only viable options left to the international community even if this risks alienating Poland and its allies like Hungary. Further division within the EU is risky considering the instability of current Brexit negotiations. However, it is crucial that the EU continues to pressure Poland to uphold its rule of law and the fundamental rights of its citizens. The European Commission has tried to navigate the issue delicately by affirming that ‘it is up to Poland to identify its own model for its justice system, but it should do so in a way that respects the rule of law.’
This combination of international pressure, EU measures and public protests has shown some success. The government succumbed to public pressure in 2016, as protests against a blanket ban on abortion shut down the proposed legislation. More recently, Poland amended its Holocaust laws after receiving criticism from key allies, the United States and Israel. Prime Minister Morawiecki has said ‘in essence, this is the end’ to Poland’s concessions to European Commission demands. Despite such resistance, it is crucial that Poland’s civil society, the EU and the broader international community continue to censure such regressive laws before all of Poland’s independent institutions are dismantled and its citizens left voiceless.
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