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Poland’s Judicial Reform:

Weighed Down by History

by Natalie Dabkowski | Spring 2019

In recent years, the Polish government has undertaken a series of judicial reforms, many of which have been called into question for their politicization of court operations and threat to the independence of the judiciary. While contrary to broader European principles, this development is not altogether unexpected, reflecting Poland’s difficulty in reconciling its communist past with modern development. A historic absence of clarity in the differentiation between political and judicial institutions has enabled the emergence of an uncertain understanding torn between compensating for past political injustices and clearly defining the foundational principles of the judicial system.

1.  Matczak, Marcin. “Poland’s Constitutional Crisis: Facts and Interpretations.” The Foundation for Law, Justice and Society, 2018. 2-3. .https://www.fljs.org/sites/www.fljs.org/files/publications/Poland%27s%20Constitutional%20Crisis%20-%20Facts%20and%20interpretations_0.pdf.

2.  Venice Commission. “Opinion on the Draft Act Amending the Act on the National Council of  the Judiciary, on the Draft Act Amending the Act on the Supreme Court Proposed by the President of Poland, and on the Act on the Organization of Ordinary Courts.” Strasbourg, December 8, 2017, 3-9. https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)031-e.; Młynarska-Sobaczewska, Anna. "Polish Constitutional Tribunal Crisis: Political Dispute or Falling Kelsenian Dogma of Constitutional Review." European Public Law, 23, no. 3 (2017): 489-90.

5.  Taras, “Poland’s Accession into the European Union,” 4-7.

8.  Śledzińska-Simon, Anna. "The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition." German Law Journal, 19, no. 7 (2018): 1842-3. https://static1.squarespace.com/static/56330ad3e4b0733dcc0c8495/t/5c16c88040ec9a9be8cb8fab/1544996993169/Vol_19_No_7_Sledzinska-Simon.pdf

2016 marked the emergence of some of the largest controversies in Poland's modern legal history. Upon transition into government, the Law and Justice party implemented several legal measures, bringing about change to the operation of Poland's Constitutional Tribunal and calling into question the independence of the Polish judiciary. These developments have significant implications for judicial operation in both Poland and in Europe as a whole and thus require thorough consideration from several angles. While limited in scope, this article will aim to tackle one such angle, examining the role of history in shaping the understanding of judicial independence in Poland. A historic association between communism and modern pro-European parties has played a large role in providing the current government with a mandate to overhaul the judicial system in its favor, and while current developments have increased openings for politicization of the court system, their manifestation is directly linked to historic difficulty in reconciling a post-Soviet legacy. Regardless of the status of the constitutionality of the proposed reforms, they operate on a foundation of redefining Poland's judicial landscape in relation to its past, preventing a clear distinction between political debate and legal integrity.

First, it is necessary to clarify the developments of the last two years. The period of instability began in 2015, during administrative transition from a left-wing government under the Civic Platform to a right-wing government led by the Law and Justice party. The first element of conflict was that of judge appointment, with rushed party allocation of judges to the tribunal by an outgoing left-wing government, replacement of judges by the new government, and a Constitutional Tribunal ruling stating that neither judicial placement was fully constitutional.[1] Following the judge appointment controversy, the conflict expanded to matters concerning the operation of the Polish judicial system, including the role of parliament in judge selection and the proposal of three Draft Acts, the complete result of which would have given the parliament increased control over the selection of members of the National Council of the Judiciary and members of the Supreme Court.[2]

From the above developments, it is clear that politicization of the judge selection process is at the heart of Poland's judicial dispute. The Law and Justice party has largely based its judicial reforms on the foundation of decommunizing the Polish judicial system. In fact, this was a primary justification for the need for judicial reform in Poland, cited in the explanatory memorandum of the Draft Act on the Supreme Court.[3] While the current legislative reform push suggests increased right wing politicization favoring the party in power, the demographic distinctions between Poland's left and right wing parties enable the government to base its platform on a historical mandate for reducing the influence of former communist leadership. In the 1980s and 1990s, the leadership steering Poland out of the Soviet era was in fact composed of many former communists.[4] The Alliance of the Democratic Left (PSL) was the party at the helm of EU integration, but figures including the Prime Minister Leszek Miller and Foreign Minister Jozef Oleksy were affiliates of the previous communist administration and continued to remain in power well throughout EU transition.[5] This generated a profound distrust among members of the right, and it is of no help that recent policy has rehashed this controversy, particularly in the reduction of pensions for former communist secret police and security  officers.[6] In Poland, history is a significant part of the modern political landscape, and as such, it has eclipsed other considerations of legislative and legal operation, providing leeway for the current government to raise proposals like the lowering of judge retirement age to push judges appointed in the communist era to step down, or increasing the number of judges that are elected by parliamentary high majority to give the party composition of the Parliament more significant weight in shaping the judicial demographic.[7] While the government may simply be touting a historical line to justify legislation that supports its own policy agenda, Poland has had substantial difficulty with navigating the communist legacy, and it is not a factor that can be ignored in the perceptions of Polish judiciary independence.

Nor does this difficulty with reconciling legacies manifest solely in the broader political context. It is also present in the last decades of judicial operation. Notably, the process of clearing out politically compromised judges following the fall of communism was ineffective and inconsistent.[8] The law that allowed for disciplinary proceedings against judges in the late 1990s enabled consideration of judge integrity only in relation to specific cases; overall performance over a period of time was not evaluated, and as such, judges who were involved in political trials did not necessarily get pushed out with the transition.[9] Furthermore, judges were only partially subject to "lustration laws", laws that mandated public officials clarify their involvement with state security services, and the Constitutional Tribunal ruled that judges were granted immunity in such proceedings.[10] These two aspects lent decommunization in the judiciary a lack of transparency, preventing a completely clear judicial separation from communist rule. While today's government has pushed for laws that would enable it to execute greater influence over judge selection, it is this unclear past that has enabled and spurred these types of reform measures.

Politicization is thus at the core of the Polish conceptualization of the judicial system, and when compared to other states, the debate calling this political influence into question is perhaps more central than other aspects of legal integrity. Poland struggles with identifying clear boundaries between politics and the judicial system. While current judicial reform is in some ways moving down a questionable path of judicial reform, it is not the first incarnation of the Polish judicial system to have done so, and unless Poland moves beyond its past, history will continue to play an active role in serving as a defining factor in governmental policy.

REFERENCES

 

[1] Matczak, Marcin. “Poland’s Constitutional Crisis: Facts and Interpretations.” The Foundation for Law, Justice and Society, 2018. 2-3. .https://www.fljs.org/sites/www.fljs.org/files/publications/Poland%27s%20Constitutional%20Crisis%20-%20Facts%20and%20interpretations_0.pdf.

[2] Venice Commission. “Opinion on the Draft Act Amending the Act on the National Council of  the Judiciary, on the Draft Act Amending the Act on the Supreme Court Proposed by the President of Poland, and on the Act on the Organization of Ordinary Courts.” Strasbourg, December 8, 2017, 3-9. https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)031-e.; Młynarska-Sobaczewska, Anna. "Polish Constitutional Tribunal Crisis: Political Dispute or Falling Kelsenian Dogma of Constitutional Review." European Public Law, 23, no. 3 (2017): 489-90.

[3] Venice Commission. “Opinion on the Draft Act,” 3-9.

[4] Taras, Ray. “Poland’s Accession into the European Union: Parties, Policies, and Paradoxes.” The Polish Review 48, no. 1 (2003): 4-7. https://www.jstor.org/stable/25779367?seq=1#page_scan_tab_contents

[5] Taras, “Poland’s Accession into the European Union,” 4-7.

[6] Associated Press. “Poland Cuts Pensions for Communist-Era Officials.” Wall Street Journal, January 5, 2010, sec. World News. https://www.wsj.com/articles/SB126271076592916675.

[7] Venice Commission. “Opinion on the Draft Act,” 3-9.

[8] Śledzińska-Simon, Anna. "The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition." German Law Journal, 19, no. 7 (2018): 1842-3. https://static1.squarespace.com/static/56330ad3e4b0733dcc0c8495/t/5c16c88040ec9a9be8cb8fab/1544996993169/Vol_19_No_7_Sledzinska-Simon.pdf

[9] Śledzińska-Simon, “The Rise and Fall of Judicial Self-Government,” 1842-3.

[10] Śledzińska-Simon, “The Rise and Fall of Judicial Self-Government,” 1843.

3.  Venice Commission. “Opinion on the Draft Act,” 3-9.

4.  Taras, Ray. “Poland’s Accession into the European Union: Parties, Policies, and Paradoxes.” The Polish Review 48, no. 1 (2003): 4-7. https://www.jstor.org/stable/25779367?seq=1#page_scan_tab_contents

6.  Associated Press. “Poland Cuts Pensions for Communist-Era Officials.” Wall Street Journal, January 5, 2010, sec. World News. https://www.wsj.com/articles/SB126271076592916675.

7.  Venice Commission. “Opinion on the Draft Act,” 3-9.

9.  Śledzińska-Simon, “The Rise and Fall of Judicial Self-Government,” 1842-3.

10.  Śledzińska-Simon, “The Rise and Fall of Judicial Self-Government,” 1843.