Since the right-wing populist Law and Justice party (PiS) took control of the lower house of Poland’s parliament in 2015, the country’s democracy has been under attack. Judicial independence has been of particular concern.
The situation has already forced the European Union in 2017 to take up Article 7 deliberations that could ultimately suspend Poland’s voting rights within the European Council.
The ongoing saga between Brussels and Warsaw came to a head on earlier this month when the opposition-controlled Polish Senate rejected a controversial draft law aimed at punishing justices who question controversial judicial reforms.
Unfortunately, this victory was short-lived. The draft law returned to parliament, where lawmakers from the Law and Justice party hold the majority. Last week, the PiS-controlled lower chamber overturned the Senate’s vote, and approved the bill. Now that the legislation has passed in the lower house, it is up to PiS-aligned President Andrzej Duda, who is expected to sign the bill into law.
Passing the initiative will effectively silence critical voices on the bench and eliminate checks on PiS’ power. The judiciary is the final arbiter of the rule of law in any democracy. A judicial branch shackled to the ruling power spells the end of Poland’s ability to call itself a democracy.
However, even without the “muzzle law,” as Supreme Court President Malgorzata Gersdorf has denounced the bill, Polish judges are silenced, harassed, and face threats.
Fate of Polish Judges
In December 2018, Judge Dorota Zabłudowska of Gdansk received an award from the town’s mayor for her contribution to the public debate about Poland’s rule of law. Three months later, the national deputy disciplinary officer ordered Zabłudowska to provide a written explanation regarding possible misconduct “due to her failure to uphold the dignity of her office” for accepting the reward.
The state-run media have called the award a “scandalous prize.” In an interview in the daily Rzeczpospolita, the targeted judge commented on the disciplinary proceedings:
“It’s harassment. These threats are intended to silence us… Judges have obligations towards citizens; we have a duty to defend the rule of law and the constitution.”
In another case, Judge Slawomir Jeksa had charges drawn up against him after ruling in favor of an imprisoned citizen for using offensive language at a political rally. The judge cited the citizen’s constitutional right to free speech. Unfortunately, this was not enough to save him from censure.
Other Polish judges have found themselves in the midst of smear campaigns and face additional harassment and death threats as a result of PiS’ reform efforts. Judges have been “doxed” online by pro-government social media accounts and are regularly portrayed as “the enemy of the people.”
PiS’ Iron Fist
The government’s acts have placed the judges and courts under the iron fist of the Law and Justice party. PiS argues reforms are needed to weed out “corrupt” and “inefficient” judges educated under the communist regime.
Critics, on the other hand, say that the new laws are a power grab intended to keep only politically-favored judges in office indefinitely.
The argument regarding “corrupt judges.” who are holdovers from the communist regime, is without merit.
First, one official has already resigned in the wake of an investigative report alleging his role in smear campaigns with PiS favored judges. One of the Twitter handles the group used (@KastaWatch) is still operational.
Second, Poland began its transition away from communism in 1989 and held presidential elections the following year. Sufficient time has passed. Rather than being influenced by communism, Poland has been on a clear democratic path and was one of the shining examples of democracy in post-communist Europe. That standing has only declined with the PiS’ ascendance to power.
Poland’s Rule of Law
While the party may have taken their October re-election victory as a mandate to unabatedly continue their reforms, they may be misguided. The country remains deeply polarized, and 50 percent of the electorate rejects PiS along with the far-right Konfederacja party.
Further, when surveyed, Polish citizens do not seem convinced of the official line.
According to the European Commission’s Justice Scoreboard, less than 40 percent of Poles perceive their courts and judiciary as being fairly good or very good on independence, while almost 50 percent view the judiciary as fairly bad or bad on autonomy with the balance being “unsure.”
When asked why they held these feelings, the majority responses returned “interference or pressure from government and politicians” (nearly 40 percent) as their main reason and “the status and position of judges do not sufficiently guarantee their independence” (approximately 32 percent) suggesting reasons beyond the control of the judges themselves. Only about 33 percent offered “interference or pressure from economic or other specific interests” as a response.
Large-scale protests have broken out across Poland in defiance of PiS’ judicial reforms. Just last weekend, judges and lawyers from many EU member states marched through Warsaw in an unprecedented show of support for Polish judges.
Yavuz Aydin, a Turkish judge who lost his bench in a purge of thousands of judges following the 2016 coup attempt, was among those in attendance. In an interview with Time, Aydin explained the rule of law is worth fighting for.
“You don’t understand how important it is until you lose it. We understood, but it’s too late,” he said. “I hope Polish people understand this before it’s too late.”
Brussels has begun to show its impatience with Poland’s flagrant violation of E.U. norms and has indicated it will seek measures to protect the rule of law. If Warsaw eventually moves forward with the “muzzle law,” then the E.U. must press forward with measures immediately, halting these reforms while continuing to pursue Article 7 measures.
For now, as E.U. Values and Transparency Commissioner Vera Jourova said on Tuesday, the door is open for dialogue with Poland to avoid such actions.
However, if Poland refuses to comply, it would see its funds cut in the new 7-year E.U. budget starting in 2021. Definitive action is the only way to ensure the integrity of the rule of law in Europe and to discourage the growth of illiberal democracies across the continent.