Poland’s Lack of Rule of Law is Causing Concern for Democratic Backsliding

The role of a Judicial Branch in a Democracy is to check the power of coequal branches, however Poland is accused of having a Lex-telaphonica Judiciary. Without an independent Judicial Branch, The President becomes an authoritarian, according to Polish Democratic Activist apart of The Free Courts Initiative. The basis of this commonly echoed accusation rests in the recent power grab of Poland’s majority party, Law and Justice (PiS). The right-wing Law and Justice party (PiS), which assumed power after the 2015 elections, regularly censors media outlets, prevents freedom of assembly, and tries to restrict the activities of non-governmental associations. Poland’s monolithic political culture and unchecked political power is caused by a lack of rule of law. Judges can be removed, replaced, and censored by Warsaw.

The ramifications of the PiS Political Party’s power grab have been scrutinized by The European Union and Non-governmental organizations like Freedom House, Harvard University, and Observers from the Organization for Security and Co-operation in Europe.

The compounding state action of Warsaw has included eliminating dissenting political voices. In 2018, 27 out of 72 Polish Supreme Court Justices were forced into early retirement. One of those justices is Supreme Court Judge Malgorzata Gersdorf. Justice Gersdorf believes her outing is contrary to the progression made in the last 25 years in Poland. Following the power grab, The European Commission launched legal challenges against the government’s judicial reforms.

In the absence of the Judicial Officials, Polish President Andrzej Duda and his majority party have nominated PiS Politicians to fill the absent seats. The European Commission accuses PiS of violating their obligation to adhere to the European Union’s founding treaty since Polish politicians control the appointment of judges. This is because a recent Polish Law mandated that 15 of the 25 members of the National Council of the Judiciary (KRS), which is responsible for nominating judges, be appointed by the parliament instead of elected by the judiciary.

However, successfully electing neutral justices will not solve the issue since The Executive Power forbids Justices from making independent decisions. As John MacMenamin, a judge on the Irish Supreme Court, puts it, “If judges are not independent, they are not judges.” If Polish judges know they will face mistreatment for disapproving the PiS, they will likely rule in favor of the PiS because they fear the penalties of ruling contrary to the status quo. According to A bill passed this February mandates that judges who criticize the new government’s judicial appointments and reforms will be punished. One such Judge was district court judge Pawel Juszczyszyn, who faced a salary reduction, after his critical remarks of PiS. Punishing judges is politically chaotic, and contrary to EU Policy. According to Michal Laskowski, a spokesperson for Poland’s Supreme Court, “I think we will get a reaction [from the European Commission] to this legislation because it contradicts European law.” In April 2019, the European Commission launched another infringement procedure, alleging that the Disciplinary Chamber established by the Supreme Court law undermined the independence of judges and failed to ensure “necessary guarantees to protect judges from political control.”

Likewise, Justices play an important part in overseeing fair elections. Without an independent Judicial System, Warsaw’s democratic government is left unchecked. Observers from the Organization for Security and Co-operation in Europe (OSCE) expressed concern that recent judicial reforms had left a “lack of trust in prosecutors and courts to handle election-related complaints independently.” This point is especially concerning when considering the nature of Covid-19 has prolonged politician’s power. For a legitimate election to be held, an independent justice branch must oversee the nation’s elections.

Freedom House, using reports from Oxford University, summarizes this political backsliding in three steps, “First, to deny opposition-appointed judges from taking their place on the court. Second, to pass laws designed to paralyze the court and prevent it from functioning effectively. Third, to force through the appointment of judges loyal to the ruling party.” According to a 2017 report published by the European Commission, Polish authorities have implemented more than 13 laws affecting the credibility of Poland’s justice system. It is overwhelming clear that Poland’s Judicial System will need to be restructured to comply with European Legislation. Furthermore, Warsaw should consider creating a more independent judicial system because the original intent of modern Poland was to create a free and open society. 

Polish rebellion force Solidarity (KOR) revolted from their Communist Occupiers. Often, KOR members criticized police brutality and an unfair judicial system. Following the Solidarity Movement, reform was undertaken in Warsaw, Poland. By October 1997, liberal reform was passed to establish an independent judiciary system, and to ensure that Poland has fair elections. Years following, by 2004 Poland has successfully passed a referendum to join the European Union. Today, Poland is a valued member of the European Community. To remain as such, it is necessary for Poland to listen to The Free Courts Initiative, represented by Polish lawyer Michal Wawrykiewicz, who believe an independent Judiciary plays a quintessential role in a Democratic Poland. Thus, Poland will adhere to its commitment it made to join the European Union by following the findings of the Council of the EU.