The Hijacking of Polish National Courts

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By: Ryan Thiele

Since the Law and Justice (PiS) party took the reigns of the Polish government in 2015, the party has been on a crusade to remove “communist influence” from the country by taking over the courts. Led by President Andrzej Duda and Party Chairman Jaroslaw Kaczynski, the party has used its majority to remove checks and balances and establish control over the three main branches of the judiciary: the Constitutional Tribunal, the National Council of the Judiciary (KRS), and the Supreme Court.

PiS has taken control of the judiciary in three stages. In order for its laws and decrees to have any weight, it must first control the Constitutional Tribunal, the court that ensures government laws and actions are in accordance with the Constitution. The Tribunal consists of 15 judges appointed by the lower house of parliament, the Sejm, and enjoys some independence in that each judge serves for a nine-year term.

The takeover began with PiS invalidating the appointment of five judges from the previous government under the Civic Platform (PO) party and replacing them with five new judges of their own choosing. PiS claimed that the Tribunal cannot reject the will of the people by ruling legislation unconstitutional and that it must, therefore, be under control of the executive and legislative branches.

“In a democracy, the sovereign is the people, their representative parliament and, in the Polish case, the elected president,” said Party Chairman Jaroslaw Kaczynski, “if we are to have a democratic state of law, no state authority, including the Constitutional Tribunal, can disregard legislation.”

The Tribunal rejected PiS’ claim, arguing that three of PO’s five appointments were completed on time and should be valid. The party disagreed and, as punishment, barred state printing presses from publishing Tribunal rulings. It then passed a “Repairs Act” and an interim court president law which stopped the Tribunal from issuing rulings and gave the party the power to appoint a new interim Tribunal President.

When the Tribunal judges convened to appoint a successor to current Tribunal President Andrzej Rzepliński, however, their ruling was ruled invalid by President Andrzej Duda because they did not have a quorum for the vote. Conveniently, the PiS appointed judges on the Tribunal had called in sick that day. Duda then appointed Julia Przyłębska, a PiS appointee, as interim Tribunal president. Under Przyłębska, any judges appointed by PiS were sworn in, setting in stone a PiS appointee majority on the Tribunal. Przyłębska’s first act as court president was to put Rzepliński’s successor on indefinite leave, further cementing PiS control.

The National Council of the Judiciary (KRS) has the sole role of appointing judges within the judicial branch. In order to maintain judicial independence, a majority of the members on the Council are judges. Laws passed by PiS in 2017 gave the ruling majority the power to appoint a majority of KRS members and terminated the current members’ terms of office. This meant that PiS could now appoint party-loyal judges throughout the judicial system.

Similarly, the Supreme Court has had its powers diminished by the expanded powers of the Minister of Justice in appointing and dismissing lower court presidents. The President, with support by the KRS, appoints Supreme Court justices for indefinite periods. To speed up the judicial replacement processes, PiS passed a law lowering the mandatory retirement ages, though it has currently been halted by President Duda as he bows to European Union pressure. This expansion of power gives PiS troubling influence over the outcomes of criminal and civil cases, which the Supreme Court oversees. By gaining influence over criminal and civil cases, PiS affiliates can act unchecked knowing that should they break laws they either won’t be charged for or will be exonerated of their crimes.

While these “reforms” have temporarily given the executive and legislative branches near complete control over the judiciary, PiS has faced growing international pressure to repeal them, especially within Europe. PiS has been fighting the European Union for years over its judicial program, which the Union has long denounced as undemocratic and against rule-of-law principles.

“The main objective of this disciplinary regime is — as with the rest of the judicial reform — to systematically subject judges to the political control of the executive,” European Commission Vice-President Frans Timmermans said. “All this has an obvious chilling effect on the activities of judges, and this is incompatible with the requirements of judicial independence as detailed by the European Court of Justice.”

The EU is bringing its concerns to the European Court of Justice, claiming that the Polish government’s reforms destroy the independence of the judiciary. The EU triggered Article 7 of the Lisbon Treaty, the binding document outlining the institution of the Union. Article 7 strips member states of its voting rights and requires a ⅘ majority to pass. Should it pass, Poland will remain within the European Union but would have no vote. The Union has stated it will pull back if Poland reverses the PiS judicial laws.

PiS shows no signs of reversing the control it has established over the courts, and the European Union shows no sign of allowing Poland to continue blurring the lines of the checks and balances system. While the EU has argued PiS is becoming authoritarian, PiS has countered by saying that that the EU is simply trying to undermine the sovereignty of Poland’s government. Time will tell which argument wins out in Poland’s parliamentary elections at the end of this year.

Photo courtesy of Mathiasrex (Maciej Szczepańczyk) of Wikimedia Commons.

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