Calling on Poland to Protect Their Independent Judiciary
By: Austin Blessing
An independent and empowered judiciary is perhaps the most important thing necessary to have a free and democratic society.[1] This concept has been held out as true since the birth of modern democracy.[2] Poland professes to be a free and democratic society devoted to the rule of law, to justice, and to the protection of civil rights and civil liberties.[3] However, despite having legal protections in place to protect civil liberties and civil rights and to ensure the rule of law, these protections are often ignored or violated, some are inadequate or ill-defined, and members of the ruling party (which is named the Law and Justice party) frequently and openly insult certain protections and often state a desire to overturn or undermine them (and sometimes actually do in fact undermine them).[4]
As an example of behavior designed to undermine the rule of law, Poland recently made a move that would undermine the independence of the Polish judiciary and would remove important checks and balances on the Polish government.[5]
In a blatant effort to curtail judicial independence and to prevent the judiciary from effectively acting as a check on the Polish government, the Polish government enacted measures, which they disguised as reform measures, that are designed to tighten control over the judiciary and that would allow judges to be punished for their rulings, including those against the government or which those in power disagree with.[6] The new measures “give[] politicians the power to fine and fire judges whose actions and decisions they consider harmful[,] bar[] judges from questioning judicial appointments made by the president[,] and forbid[] them from engaging in political activity.”[7]
This move, which the Polish government claims is just a needed court reform measure that they claim is supported by the public, was widely criticized and spawned a legal battle in the European Courts. [8] The measures have “drawn condemnation from the European Union and international human rights organizations as well as from Poland’s opposition and some of its judges. They say it violates the basic democratic values of judicial independence and the system of checks and balances and puts judges under political control.”[9]
It has also drawn formal backlash from other European countries, such as Norway, which recently decided to halt negotiations with Poland for a treaty that would have resulted in closer cooperation between the courts of the two countries.[10] The EU has also called on member states to exert pressure on Poland.[11]
As bad as this new legislation is, it is not the first time Poland has gotten in trouble for supposed court reform,[12] this is only the latest attempt to damage the Polish judiciary.[13] “In last four years, the [Polish government] has adopted over 20 different pieces of legislation concerning the judiciary system and protection of fundamental freedoms (such as freedom of assemblies). Each of these changes poses a serious threat to the fundamental freedoms enshrined in the [Polish] Constitution. For the majority of the legal community, civil society, and most importantly, average citizens, protesting against the policies introduced by this governing majority also means protecting the Constitution.”[14]
If the Polish government is successful in damaging the independence of its courts, there could be a variety of consequences for Poland. First, it has already been mentioned that these measures have damaged Poland’s foreign policy, have led to international outcry, and have spawned protests and legal battles.[15] It stands to reason that if the Polish government continues to attack judicial independence, these consequences will not go away and will likely become worse for Poland.
Another big consequence of an assault on the independence of the Polish Judiciary is less protection for civil rights and civil liberties and for the rule of law.[16] Poland, which is a very Catholic and socially conservative country, lacks a lot of civil rights protections (particularly for the LGBTQ community) that are prevalent in most other European countries.[17] Nevertheless, the courts have found ways to provide some level of protection to vulnerable groups, even if they only do so in some cases.[18] If the independence of the courts is curtailed, it is not an exaggeration to say that vulnerable groups could soon find themselves without any form of legal protection from the Polish government, including the Polish courts.[19]
Another set of consequences from attacks on the judiciary are those faced by the judges, who under new measures can be subject to termination and fines.[20] And these consequences aren’t just on paper, at least one judge has already been suspended and fined, by a disciplinary body whose political independence is suspect, to say the least, for questioning the way the government is altering the judiciary.[21]
Bottom line, if the independence of the Polish judiciary is successfully destroyed, the consequences will be dire. In order to protect the independence of the Polish judiciary, which is necessary to ensure the proper functioning of Polish democracy and to protect civil rights and liberties within Poland, the Polish government must stop and reverse its attack against judicial independence and pressure should be put on the Polish government, from both within and without Poland, until they do so.
#InternationalLaw #AustinBlessing #BlogPost #Poland
[1] Linda A. Klein, Independent Courts are Vital to Democracy, ABA Journal (June 1, 2017), https://www.abajournal.com/magazine/article/independent_courts_protect_democracy.
[2] Id.
[3] Małgorzata Szuleka, Polish Activists Fight for Rights Already Guaranteed in Their Constitution, Open Glob. Rts. (Oct. 23, 2013), https://www.openglobalrights.org/polish-activists-fight-for-rights-already-guaranteed-in-their-constitution/.
[4] See e.g., Yascha Mounk, Democracy in Poland is in Mortal Danger, Atlantic (Oct. 9, 2019), https://www.theatlantic.com/ideas/archive/2019/10/poland-could-lose-its-democracy/599590/; Madeline Roache, Poland is Holding Massive Pride Parades. But How Far Have LGBTQ Rights Really Come?, Time (July 3, 2019), https://time.com/5619660/lgbt-rights-poland/.
[5] In Poland, Controversial Legislation Restricting Judiciary is Signed into Law, NY Times (Feb. 4, 2020), https://www.nytimes.com/2020/02/04/world/europe/Poland-judiciary-law.html.
[6] Anna Applebaum, The Disturbing Campaign Against Poland’s Judges, Atlantic (Jan. 28, 2020), https://www.theatlantic.com/ideas/archive/2020/01/disturbing-campaign-against-polish-judges/605623/.
[7] In Poland, Controversial Legislation Restricting Judiciary is Signed into Law, supra note 5.
[8] Holly Ellyatt, Controversial Judicial Reform Still ‘Needed,’ Polish Prime Minister Says After EU Battle, CNBC (Jan. 22, 2020, 10:16 AM), https://www.cnbc.com/2020/01/22/controversial-judicial-reform-still-needed-polish-prime-minister-says-after-eu-battle.html. It should be noted that the supposed reforms spawned protests across Poland. Alicja Ptak et al., Thousands in Poland Protest Against Latest Judicial Reforms, Reuters (Dec. 18, 2019, 2:20 PM), https://www.reuters.com/article/us-poland-judiciary/thousands-in-poland-protest-against-latest-judicial-reforms-idUSKBN1YM29Y.
[9] In Poland, Controversial Legislation Restricting Judiciary is Signed into Law, supra note 5.
[10] Morten Møst, Norway Drops Court Treaty with Poland, News in Eng. (Feb. 28, 2020), https://www.newsinenglish.no/2020/02/28/norway-drops-court-treaty-with-poland/ (“Norway is pulling out of talks with Poland about closer cooperation between courts in the two countries. After nearly three years of negotiations, Norway’s court administration (Domstols-administrasjonen) has concluded that Poland’s current leaders simply want to turn its courts into a political tool.”).
[11] Monika Sieradzka, Poland's Planned Judiciary Reforms Would 'Undermine' Rule of Law, DW (Jan. 17, 2020), https://www.dw.com/en/polands-planned-judiciary-reforms-would-undermine-rule-of-law/a-52034657 (“Despite the European Commission taking action against Poland and Hungary for judicial reforms that risk ‘a serious breach of the values on which the Union is founded,’ EU lawmakers have called for more pressure on the two member states.”).
[12] Alstair Walsh, What are Poland's Controversial Judicial Reforms?, DW (Nov. 5, 2019), https://www.dw.com/en/what-are-polands-controversial-judicial-reforms/a-51121696; Barbora Cernusakova, On the Importance of Courage: Poland’s Judges and EU Top Court Decisions on Judicial Independence, Amnesty Int’l (Nov. 19, 2019, 2:33 PM), https://www.amnesty.org/en/latest/news/2019/11/polands-judges-and-eu-top-court-decisions-on-judicial-independence/.
[13] Jan Strupczewski et al., EU Top Court Rules Poland Broke Rule of Law with Judicial Reforms, Reuters (Nov. 5, 2019, 4:06 AM), https://www.reuters.com/article/us-eu-poland-judges/eu-top-court-rules-poland-broke-rule-of-law-with-judicial-reforms-idUSKBN1XF13Z.
[14] Szuleka, supra note 3.
[15] Sieradzka, supra note 11; Alicja Ptak et al., supra note 8.
[16] Szuleka, supra note 3.
[17] Roache, supra note 4.
[18] Szuleka, supra note 3.
[19] Id.
[20] In Poland, Controversial Legislation Restricting Judiciary is Signed into Law, supra note 5.
[21] Polish Judge Suspended in Row Over Court Shake-Up, BBC News (Feb. 4, 2020), https://www.bbc.com/news/world-europe-51370907.