Polish Government’s Power Trip Interrupted?

The ongoing saga of the Polish government’s authoritarian slide – which has garnered the attention of rock stars and led to massive protests across the country – hit a major roadblock on Friday. The European Court of Justice (ECJ), one of the judicial arms of the European Union, has ruled that the Polish government cannot implement a new law that forces the retirement of a third of Poland’s Supreme Court judges. The emergency opinion, which will remain in force until the Court can hear arguments and take further action, prohibits the firing of any judges under the law – and through retroactive application requires immediate reinstatement of those that have already been forced out.

The opinion brings to a fine point an ongoing dispute between the E.U. and the Polish government: It tells the Polish government to follow E.U. rules and maintain E.U. values, or leave the Union. This is because the ruling is not appealable, the Polish government does not have the option of weaseling out of compliance, as it has done so far with the E.U.’s Article 7 proceeding – also called the Rule of Law Mechanism. If Poland wishes to remain in the E.U., with all the benefits this confers, it must comply with this ruling.

Poland’s Supreme Court has been locked in battle with the populist-nationalist government since 2016, when the government completed its illegal takeover of the Constitutional Tribunal– the highest court enabled to rule on constitutional questions – and introduced legislation intended to bring the Supreme Court and regional courts under political control. Possibly after witnessing a similar takeover of the courts in Hungary, in which Hungarian judges were unable to obtain swift enough relief from the European court system, the judges of Poland’s Supreme Court have fought back immediately and vociferously. They have been supported by thousands of demonstrators country-wide, including many lawyers that have organized in support. The public movement behind the judges has taken as its rallying cry the word Konsytucja! — referring to the Polish Constitution, as in: Let’s follow it!

The specific law at issue forced all Supreme Court judges over 65 to retire in July 2018 – unless the president of Poland gave them dispensation to stay. It affected about one-third of the then-serving Supreme Court judges. It was coupled with another provision expanding the Supreme Court, allowing the government to not only replace the “retired” judges but also to add another 27 judges. With the addition of several already-unfilled seats, this would give the ruling Law and Justice party a political majority on the Court. All of this is legally tenuous, if not an outright violation of Poland’s constitution. Of greatest concern to the ECJ was the fact that lack of judicial independence meant Poland could not guarantee litigants a fair trial.

The judges forced out include the head of the Supreme Court, Malgorzata Gersdorf, who was in her fourth year of a constitutionally mandated six-year term.

The Supreme Court’s first attempt to fight back against the ruling party’s takeover was an appeal made through an existing ECJ proceeding. The underlying case was then almost withdrawn from consideration. The Supreme Court was able to keep the case in front of the ECJ, but since the application did not include any requests for emergency measures, it may not be decided for months.

Then, the European Commission came to the rescue – sort of. This is the same body that initiated Article 7 proceedings against the government of Poland in 2017, largely due to passage of this very law. The European Commission indicated that Poland’s new laws and policies failed to uphold E.U. values of rule of law and judicial independence. Under the Article 7 process, if the Polish government does not make changes, the E.U. can vote to suspend Poland’s voting rights in the Union. In response to Poland’s repeated failure to address E.U. concerns about the new laws, the Commission initiated this proceeding on October 2, seeking an emergency ruling to stop implementation of the law.

The opinion is good news for those concerned with rule of law in Poland – but it won’t solve the larger problems surrounding judicial independence and judicial system chaos in Poland. And it certainly won’t stop Poland’s government from implementing other concerning policies such as a new body that can re-decide any court opinion issued since October, 1997; the use of party loyalty tests for not only government positions but also military, intelligence and other skilled posts; or the takeover of independent media that is likely to come next – a step that was announced publicly by the Law and Justice party after their less-than-stellar showing in municipal elections this past weekend (October 21).

The European Commission’s current application for ECJ review won’t even solve all the problems related to the appointment of judges in Poland, since it concerns only the reinstatement of those judges already removed. It won’t review the new politicized process that will be used to select 100 percent of new judges going forward. The new process allows no input from judges and has been completely politicized. For example, recent judge-nominees were asked the question “Is Malgorzata Gersdorf President of the Supreme Court?” Only those that answered “no” – meaning those who agreed with the Law and Justice party’s unconstitutional interpretation of the law — were permitted to advance in the process. To really fix the problem with judicial appointments, the ECJ would have to review the work of the National Council of the Judiciary, and it isn’t clear that this application by the European Commission’s application even requests such review.

The Polish government’s responses to the ruling have been all over the map. Some officials, including party leader Jaroslaw Kaczynski, suggested that an internal appeal to the (politically controlled) Constitutional Tribunal should decide whether the ECJ decision will be implemented. However, most Poles immediately recognized that refusal to comply for what it was:  a threat to leave the E.U. The alarm raised by this statement in a country where over 60 percent of citizens want to remain in the E.U. likely contributed to Law and Justice’s subdued showing in this weekend’s election.

Other officials hinted that the government will amend the law to comply, giving back jobs to the recently retired judges. But even if the government obeys the court order the impact of this one decision will do little to protect the European values the Commission is worried about. While it may allow the judges to return to their posts for now, the government could easily institute unfounded disciplinary charges to remove judges that rule against it, as it has already done with judges in the regional court system.

The real showdown will happen in the Article 7 proceeding, and in the two remaining cases still in front of the ECJ:  full review of the current European Commission’s application, as well as review of the application brought by the Polish Supreme Court. The ECJ, and the European Commission in the Article 7 proceeding, should bring down the hammer on Poland’s false “reforms” and the chaos they are causing. The ECJ should strike down the Law on the Supreme Court in its entirely – including the creation of the politically controlled disciplinary body for judges and the creation of the new “extraordinary appeal” that allows a redo of the last 20 years of Polish jurisprudence. The European Commission should put an end to the false “disciplining” of regional court judges that rule against the ruling regime, and reverse the political takeover of the National Council of the Judiciary, which nominates judges going forward. If it must suspend Poland’s voting rights in the E.U. to accomplish these things, that will be painful, but with strong support from Polish citizens, it must and should be done.

In the meantime, Poland’s allies that care about rule of law, including the international business community and NATO partners such as the U.S., should take this moment to remind Poland how important democratic institutions such as an independent judiciary remain for these alliances. If NATO allows democracies to adopt the very mechanisms used in authoritarian countries they aim to defend against, what is it, then, that NATO is protecting?

Image: Opposition group (KOD) hangs “Constitution” t-shirt on Sigismund’s Column in Warsaw on September 16, 2018. Photo by Maciej Luczniewski via AP Images.

 

About the Author(s)

Melissa Hooper

Director of Human Rights and Civil Society program at Human Rights First; previously worked for nine years as a practicing lawyer in state and federal courts on death penalty cases.