Lawless and Unjust

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The Polish governing Law and Justice party (Prawo i Sprawiedliwość, PiS) has been on a crusade to control the judiciary since they were elected in 2015, steering them on a collision course with the EU and the country’s judges. Their reforms have consistently undermined the independence of the judiciary, threatening the integrity of Polish democracy and their position in the EU.  

Shortly after being elected, PiS stacked the Constitutional Tribunal, a senior court in charge of determining the constitutionality of laws, with party loyalists, and the post of justice minister was merged with prosecutor general, giving the government authority over prosecutors. It also made the National Council of the Judiciary (NCJ) appointed by the lower house of parliament, giving the PiS dominated legislative control over judge appointment. 

In 2018, the government attempted to seize control of the Supreme Court through lowering the retirement age of judges, forcing approximately a third to leave their posts. PiS backed down after the European Court of Justice ruled against the move, arguing it undermined the rule of law by giving too much control over the judiciary to the governing party. 

However, the broader picture may render this small victory for democracy irrelevant. The 6-year term of the current First President of the Supreme Court, who resisted the 2018 retirement reforms and has been opposing PiS, is coming to an end in April 2020, meaning the government will be able to appoint a pro-PiS replacement.

The PiS-dominated legislature now controls judge appointment

The latest strike against judicial independence has come from what has been called the “Muzzle Law”, which gives the government the power to fine or fire judges whose actions they find harmful.  This is one development in what has been a long pattern of judicial suppression. Pawel Juszczyszyn, a judge who requested an opinion from the European Court of Justice on whether newly appointed Polish judges were legitimate considering the influence of parliament in the process under new reforms, was suspended indefinitely and denied 40% of his pay. Iustitia, an independent organisation of judges, said 60 judges faced this kind of suppression since 2017. 

Poland fell from 29th to 41st in Transparency International’s corruption-perceptions index since 2015, when PiS was elected. Strengthening the executive through undermining the judiciary means more centralised power, making it more difficult to scrutinise and punish corruption. 

It appears PiS will only strengthen its hold on power. It declared the presidential election would be conducted through postal voting in May, due to the COVID-19 pandemic. The incumbent, Andrzej Duda, is backed by PiS, and the opposition claims the election will be heavily swayed as the pandemic makes it impossible to campaign, whilst Duda receives consistent coverage from state media. 

However, this is not simply a domestic issue. Poland’s reforms disturb the European judicial network and therefore risk its expulsion from the organisation. The NCJ was expelled from the European Network of Councils for the Judiciary after the 2018 reforms put it under parliamentary control. In March, a German court refused to extradite a Polish suspect, claiming there were doubts regarding whether he would receive a fair trial in Poland. In 2019, the Polish Supreme Court suggested Poland’s unwillingness to comply with EU treaties may result in its expulsion from the Union. 

Polish democracy is dying a slow death and the nation’s future is becoming more uncertain with each year. PiS’ reforms are transforming themselves from representatives working within the system to the system itself, the further this transformation goes the harder it will be to force them out. 

Image: Nick Moulds via Creative Commons

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