In Poland, an Assault on the Courts Provokes Outrage
WARSAW - Step by step, the Polish government has moved against democratic norms: It increased government control over the news media, cracked down on public gatherings and restricted the activities of nongovernmental organizations.
Now the party in power is moving aggressively to take control of the last major independent government institution, the courts, drawing crowds into the streets and possible condemnation by the European Union.
The party is pushing to jam several bills into law; one would force all the nation’s top judges to resign, except those it appointed. Another bill, already approved by Parliament, would ultimately give the government control over who can even be considered for a judgeship.
In Brussels on Wednesday, a top European Union official said that if the changes were made, Poland might slip outside the bloc’s definition of a democracy.
“Each individual law, if adopted, would seriously erode the independence of the Polish judiciary,” said Frans Timmermans, first vice president of the European Commission. “Collectively, they would abolish any remaining judicial independence and put the judiciary under full political control of the government.”
The drive to control the courts comes barely two weeks after President Trump paid a triumphant visit to Warsaw and praised the populist and nationalist Law and Justice Party, which controls the government. Now, if the party prevails, its success could be the final chapter in Poland’s long progression from a model Eastern European nation - and one of the first former Communist nations to join the union - to what its opponents are calling an illiberal democracy.
Three former Polish presidents, including Lech Walesa, have released a manifesto against the proposed changes, saying “we do not consent to taking away our basic civic freedoms.” And a coalition of more than 175 artists and scientists signed an open letter on Wednesday calling the government’s move a “coup d’état.”
With the legacy of the Solidarity movement, Poland entered the post-Soviet era with a head start on other post-Soviet nations politically, and its strong agricultural sector allowed it to quickly emerge as an economic success.
But its status as a regional star has been endangered by the rise of the Law and Justice Party. Since assuming power in late 2015, the party has moved to co-opt or weaken potential rivals, beginning with the Constitutional Tribunal, which could have declared its moves unconstitutional. Now dominated by government supporters, the tribunal provides a reliable rubber stamp for government initiatives.
Law and Justice supporters have been put in charge of public television and radio, which now adhere to a firmly pro-government line. Independent oversight was removed from the secret services. The justice minister was named chief prosecutor, formerly a separate and more independent post. New regulations were imposed on public assemblies.
Still, at least one previous step to pull Poland to the right, a nearly total ban on abortions proposed last fall, was defeated after mass protests.
“This is a call for a right-wing revolution,” said Jerzy Stepien, the director of the Institute of Civic Space and Public Policy at Lazarski University, and a former president of the Constitutional Tribunal. “If we have people in power who feel themselves above the law, we are in a revolutionary situation.”
In the lower house of Parliament this week, as opposition leaders struggled to beat back the governing party’s push to pass its legislation, people on both sides delivered emotional speeches frequently interrupted by chants.
“You could have been reformers of the Polish judiciary,” an enraged Wladyslaw Kosiniak-Kamysz, from the opposition Peasants Party, said to stone-faced lawmakers from the Law and Justice Party. “But you have become its executioners wearing a mask of justice.”
Things turned especially ugly during a debate at midnight on Tuesday in Parliament when an opposition politician, Borys Budka, presumed to speak for the former Polish president from Law and Justice, who was killed in a 2010 plane crash. “If Lech Kaczynski were alive, he wouldn’t allow this,” Mr. Budka declared.
An enraged Jaroslaw Kaczynski - the former president’s twin brother and, as leader of Law and Justice, the most powerful political figure in Poland - seized the lectern and fired back: “Do not wipe your traitorous mugs with the name of my late brother. You are scoundrels.”
Law and Justice has long maintained that the 2010 crash was an assassination, perhaps involving Russia and members of the political opposition.
“You murdered him,” Mr. Kaczynski shouted.
Ewa Kopacz, the prime minister under the previous center-right government, declared herself flabbergasted. “This man is crazy with hate,” she said of Mr. Kaczynski. “He cannot control his emotions.”
The conflict over the judiciary has been simmering for some time. One proposed law, already approved by Parliament and awaiting President Andrzej Duda’s signature, would reconfigure the National Council of the Judiciary, which chooses those eligible to become judges, so that government-appointed members would essentially have veto power.
A second bill, introduced late last week, would force all current members of the Supreme Court to resign, including several who have been feuding with the government, and replace them with judges selected by the governing party’s minister of justice.
“Their goal is to create political control over the judiciary,” said Adam Bodnar, Poland’s official ombudsman, who has come out against the bills. “I don’t have doubts about it.”
Mr. Kaczynski and other Law and Justice officials contend that opponents are overreacting to an honest attempt by the government to reform a dysfunctional and highly unpopular court system and to root out corrupt judges and liberal ideologues who want to thwart the will of the people.
Law and Justice, Prime Minister Beata Szydlo said, has “stood on the side of the people, and nobody will make us turn back from this way - not even by shouting here and stamping your feet!”
To become law, a bill must have three readings in the Sejm, the lower house of Parliament, then be passed by the Senate and signed by the president. The government’s decision to use procedural maneuvers to fast-track the Supreme Court bill appears to have caught opponents off guard.
“There were no public consultations, no public hearings,” said Kamila Gasiuk-Pihowicz of the opposition party Modern. “There should have been experts’ opinions, but there’s no time for that.”
President Duda tried to suggest a compromise in a nationwide address. He said he would sign the bill on his desk involving the appointment of judges only if an amendment were added so that new judges must get 60 percent of the vote in Parliament rather than a simple majority. Since Law and Justice has only a slim majority in the Sejm, this would force the governing party to find at least one other party to vote with it. If that amendment is not added, Mr. Duda said, he will refuse to sign the Supreme Court law.
It was a rare disagreement between Mr. Duda, a former Law and Justice member who became independent when he was elected president, and Mr. Kaczynski. Opponents were not sure whether this signaled a true split between the two leaders or was some sort of a trick.
“We don’t know if the president is acting really with some sort of noble intentions or whether he’s just playing a game,” said Mr. Stepien, the former president of the Constitutional Tribunal.
As opponents sought to slow the bill’s passage, opposition leaders asked Poles to continue to take to the streets. Some protesters have set up a tent camp outside Parliament, vowing to keep a round-the-clock vigil. “I had to be here,” said Lidia Leipert, a lawyer who joined the throng after work.
Agnieszka Wierzbicka, a nutritionist, said she was already resigned to losing this round.
“I think our protest is nothing but symbolic now,” she said. “Will it change anything? I highly doubt it. But that doesn’t make it invalid. It is important for history.”
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Poland may be stripped of EU voting rights over judicial independence
The EU is on the brink of taking the nuclear option of stripping Poland of its voting rights in Brussels in response to plans by its rightwing government to “abolish” the independence of the country’s judiciary.
Frans Timmermans, the first vice-president of the European commission, accused Warsaw of seeking to put judges under full political control as he warned that the EU was “very close” to triggering article 7, a never-before-used sanction in the treaties that allows a member state’s voting rights in the council of ministers to be suspended.
Poland’s ruling rightwing Law and Justice party (PiS) has been in almost constant conflict with the European commission since it was elected. In recent weeks the Polish government has proposed a series of reforms that would give ministers power over the appointment of judges and members of the country’s supreme court.
The first step in the EU triggering article 7 is an assessment of whether there has been a breach of fundamental rights, which could be launched as early as next week on the recommendation of the commission. “What we decide next week depends on developments also this week,” Timmermans said, as he called for fresh dialogue with Warsaw.
Should a breach of fundamental rights be found, a motion to suspend Poland’s voting rights would then need to win the support of member states under the EU’s system of qualified majority voting. Two-thirds of the European parliament would also need to give its consent.
Timmermans told reporters in Brussels that the recent proposal from the Polish government to increase political control of the judiciary was a grave threat to the fundamental values of the EU.
“These laws considerably increase the systemic threat to the rule of law in Poland. Each individual law, if adopted, would seriously erode the independence of the Polish judiciary. Collectively they would abolish any remaining judicial independence and put the judiciary under full political control of the government.
“Under these reforms judges will serve at the pleasure of political leaders, and be dependent upon them, from their appointment to their pension.”
The commissioner added: “I think every citizen wants to have, if they need to, a day in court without having to say, ‘Hmm, is this judge going to get a call from a minister telling him what to do?’.”
Timmermans said he was confident he would have the support of member states should he recommend the triggering of article 7.
In Warsaw, Rafał Trzaskowski, an MP with the opposition Civic Platform party and a former Europe minister, said Poland was being pushed to the margins of the EU by its authoritarian government.
He said: “It’s absolutely clear that patience is running out, not only in the European commission, but also in many European capitals.
“The initiation of article 7 would be unprecedented, and it would show quite clearly how marginalised the current government is in the European Union.”
Timmermans, a former Dutch minister who has been the subject of personal attacks by Polish ministers over his tough stance with Poland in recent months, said he had written earlier this month to Warsaw about his concerns, but appeals for the proposed laws not to be pursued had been ignored. Two of the four pieces of legislation in question have since been adopted by parliament.
Timmermans said any concerns that triggering article 7 would push Poland to follow the UK out of the union would not be an obstacle to the EU taking action. He insisted there was “no way” the Polish people would ever choose to leave the union.
The commissioner also called on the Polish government to respect the right of journalists to do their job, after a Brussels-based TV journalist was accused by state-controlled Polish TV of asking politically motivated questions with intent “to harm Poland” after she sought information from the European commission about its intentions with regard to protecting the rule of law.
“There are lot of emotions around this,” he said. “A lot of personal attacks, people’s personal credibility or integrity has been put to discussion, mine, other people’s. I can take it. They should take their best shot. But what should not be happening is that journalists should be intimidated.”
Andrzej Duda, Poland’s PiS-aligned president, had sought to calm the situation on Tuesday evening, as crowds gathered outside the presidential palace for a candlelit vigil to demand he veto the supreme court legislation.
In a televised address, he said he would only sign the supreme court bill if legislation passed last week giving parliament control of the National Council of the Judiciary (KRS), a hitherto independent body responsible for appointing Polish judges, were amended.
Under Duda’s proposal, appointments to the KRS would require a three-fifths majority in parliament, rather than a simple majority as contained in the present legislation, meaning that as parliament is presently constituted, Law and Justice would not be able to appoint judges by itself.
“The judiciary is a very serious issue. It needs to be reformed - but wisely,” he said, arguing that his aim was “to avoid accusations that the KRS … is working under a political dictate.”
However, Timmermans suggested that the president had not gone far enough. Under Duda’s proposal a coalition of Law and Justice and affiliated rightwing parties would still be able to push through appointments to the body. The supreme court legislation before parliament envisages “silent consent” for judicial appointments should the KRS not express a view within 14 days, meaning that a paralysed council would still give the justice minister the power of appointment over the supreme court.
“Duda’s proposal does not change the essential mechanisms of the three combined legal acts, which grant the government political control over the judiciary,” said Mikołaj Pietrzak, chair of the Warsaw Bar Association. “It’s not constitutional, and it’s not satisfactory. It’s just smoke and mirrors.”
The European commission is also preparing infringement proceedings against Poland for breaches in EU law. Asked whether Hungary - whose rightwing prime minister, Viktor Orbán, has also repeatedly clashed with the commission - could also be in line for the ultimate sanction, Timmermans said the nature of Poland’s breaches was of a far more serious nature.
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Also: The Guardian view on Poland and Hungary: heading the wrong way - Editorial