“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” ~James Madison
In the years following the fall of the Soviet Union, Poland emerged as a nation poised to embrace and fulfill the promises of Western democracy. However, since coming to power in 2015, Poland’s Law and Justice Party (hereinafter LJP) has attempted to secure authoritarian power by radically reforming the nation’s judiciary. As a part of its attempted power grab, the LJP first overhauled the nation’s Constitutional Tribunal, which ensures that rules of law do not violate the Constitution. Additionally, the party took control of the National Council of the Judiciary, which is tasked with overseeing judicial appointments and safeguarding judicial independence in Poland. Since the takeover of the two delegating bodies, the party has packed them with judges who are sympathetic to the LJP, giving politicians near-complete control of the judiciary.
Most recently, the LJP has taken aim at the highest court in Poland – the nation’s Supreme Court. In September of 2018, President Andrzej Duda signed into law judicial legislation lowering the mandated retirement age of Supreme Court justices from 70 to 65, thus forcing 27 of the 72 serving judges into retirement. Further, judges who wish to stay on the bench past the mandated age of retirement must seek approval from President Duda. In response to the growing public outcry, the LJP justified the judicial overhaul as necessary to increase judicial efficiency and, ironically, force out judges held over from the pre-1989 communist regime. Party officials contend deep judicial changes are needed to restore justice and fairness to ordinary Poles, who are currently victim to a corrupt system that thwarts the will of the people.
Critics fear that the hostile judicial takeover threatens Polish democracy by abolishing judicial independence and that it will dismantle the rule of law in Poland. Dariusz Zawistowaki, Chief Justice of the Supreme Court’s civil division, describes the judicial reform as having “politicized” the judiciary, and fears democratic standards developed since 1989 will be “gone.” Opponents of the party contend that the governing party is building a judicial system that will be “subservient” to the LJP’s political rule.
If the LJP can stack and control the Supreme Court, critics have argued that the party will be able to effectively govern Poland the way the old Communist Party governed the nation. Opponents fear the party will rig national elections, punish outspoken political adversaries, and rule without concern for judicial ramifications. The LJP’s strategy involves wearing down the Polish people with legal abstracts, such as judicial independence, so that the public is no longer resistant to the party’s judicial reform.
As the legal battle over Poland’s judiciary is coming to a head, both the European Union and Poland’s Supreme Court are fighting back against the LJP. The Polish Supreme Court decided to suspend President Duda’s law, and took the extraordinary step of appealing directly to the European Court of Justice, asking it to rule against the party’s attempt to forcibly retire over 40 percent of current Supreme Court justices. The Polish Supreme Court insists the law is unconstitutional and refuses to comply with the judicial legislation.
However, President Duda rejected the Supreme Court’s ruling, and announced that the Supreme Court would have 27 new judges to replace the judges forced to retire. The appointment of the new Supreme Court justices took place in a secret ceremony in an attempt to circumvent European Union interference. The European Commission launched Article 7 proceedings against Poland, commanding President Duda reverse the appointments and reinstate the previously serving judges or risk the matter being sent to the European Court of Justice for further review. The European Union alleges the LJP’s judicial reform violates Article 19 of the Treaty of the European Union, read in connection with Article 47 of the Charter of Fundamental Rights of the European Union. Read together, the European Union asserts that retiring Supreme Court judges must leave the bench independently and that the LJP’s judicial reform undermines judicial independence and the irremovability of judges.
The European Court of Justice issued an injunction stopping the new law. The European Union’s top court ordered Poland to freeze judicial appointments and reinstate the judges forced into premature retirement. However, Duda’s cabinet chief announced that “it’s impossible for law to work in reverse,” implying that the LJP would not plan on complying with the recently issued injunction, increasing tension between the European Union and Poland.
As the European Union struggles to deal with nationalist, populist, and anti-immigration movements arising under its jurisdiction, dealing with threats against democracy has never been more crucial. As countries in the region, such as Hungary, have recently turned to autocracy, adhering to the democratic standards of judicial independence and the irremovability of judges is critical to instilling public faith in the judiciary and further promoting Poland’s quest for complete democracy. If Poland’s judiciary falls under the control of the LJP, the ripple effect could be felt through former Soviet Union nations and may give way to political parties ruling in the manner that the Communist Party once did throughout Central Europe.
Furthermore, the democratic standards developed in Poland since 1989 may be undone upon the LJP’s seizure of legislative, executive, and judiciary power. If that happens, the words of James Madison will once more ring true and Poland’s authoritarian governing party “may justly be pronounced the very definition of tyranny.”
David A. Murray is a JD Candidate at Penn State Law and the second-place winner of JURIST’s 2019 student commentary contest. He is expected to graduate in 2020.
Suggested citation: David A. Murray, Democracy Threatened: Judicial Independence Under Attack in Poland, JURIST – Student Commentary, September 30, 2019: https://www.jurist.org/commentary/2019/09/david-murray-judicial-independence/
This article was prepared for publication by Brittney Zeller, Deputy Managing Editor for JURIST Commentary. Please direct any questions or comments to her at email@example.com