In an unprecedented move, the European Commission, a governing institution of the European Union responsible for upholding EU treaties, sued Warsaw on Monday, 24 September 2018, in light of the recent changes to the Polish National Policy that threatens the independence of Polish courts.
According to the European Commission Press release, the European Commission decided to bring Poland to the EU Court of Justice for “violations of the principles of judicial independence created by the new Polish Law on the Supreme Court, and to ask the Court of Justice to order interim measures until it has issued a judgment on the case.”
Such an action was taken by the European Commission in response to the new Polish law that lowered the retirement age of its Supreme Court justices from 70 to 65 years. While seemingly innocent, the law forced 27 out of 72 justices to immediately retire, including the Chief Justice. This allowed the current majority party, the Law and Justice party, to replace the retired judges with ones that suited their interests. According to Vice News and CNN, this was the most recent move of the Law and Justice party to attempt to consolidate power. The new government has already co-opted state broadcasting networks, fired journalists, deported critics of the state and limited free speech by adopting laws that forbid the criticism of Poland’s involvement in Holocaust crimes.
According to BBC, the European Commission made the unprecedented move by using Article 7 of the Treaty on the European Union. Politico reports that Article 7 is a “procedure to be used against member countries that have committed fundamental rights violations”. The Article is made up of two parts: 7.1 is for formal warnings and 7.2 is imposing sanctions and suspending voting rights. Its roots can be traced to 1999’s Treaty of Amsterdam that threatened sanctions against nations that violated values of “liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.”
It is the last requirement of the Treaty that Poland seems to have transgressed; the EU Commission said, “The European Commission maintains that the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability [sic] of judges.”
Like Franklin Delano Roosevelt’s court-packing plan in 1937, the Polish government’s recent national policies are made with the clear intention of perpetuating its party’s agenda.
This is not to say that courts shouldn’t undergo reforms over time; as demographics do change, and views of a population may be less represented by its courts. After all, how many of your social views are represented by already adopted laws? An argument could be made that courts still use outdated “draconian” laws that citizens are forced to abide by. But in a way, that’s the very reason why we have independent judicial systems in the first place. The independence of courts exists in order for them not to be pressured by political or public opinions. By making the legal process seemingly “Kafkaesque” and “draconian”, it forces people to put their vague abstract feelings and ideas in a concrete language of interpretation and understanding.
The question of, who should make policies that reform judicial systems, is a legitimate question. However, to make such populist and rash changes, as the Polish government did, seems contrary to the intention of the judicial systems. Judicial systems hope to be as unbiased and consistent as possible. They shouldn’t be manipulated into pushing for certain laws by a government. In short, the judicial systems, as anachronistic and flawed as they may be, serve as one of the most important roles in society and shouldn’t be easily influenced from outside.
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