Since the Parliamentary Elections in 2015, Poland's government has come under fire for undermining democratic principles and eroding judicial independence in the country. To understand how this happened, Program Staff sat down with Dean of the Warsaw Bar Association, Mikolaj Pietzrak, to get his perspective on the current state of rule of law in Poland and how we can help.
We’ve seen thousands of people take to the streets in Poland protesting a series of Judicial Reforms. Can you explain the root cause of the issue?
When the governing party, known as “Law and Justice” or “PiS” took office in 2015, one of their first priorities was to destabilize the justice system which had blocked many of their reform efforts the last time they were in office. Their first target was the reform of the Constitutional Tribunal, a key element of the system of checks-and-balances. After one year and adoption of six different pieces of legislation concerning the Tribunal, the governing majority has managed to take control over this Court. The governing majority not only packed the Tribunal with three persons who were appointed for the positions of judges without a valid legal basis, but has also not recognized two judgements issued by the Tribunal concerning certain elements of the reform. As a result, the Constitutional Tribunal can no longer be regarded as effectively exercising judicial review and there are significant doubts as to its independence, there is no legal remedy available to challenge the laws passed by Parliament.
What impact has this had so far in Poland?
The governing majority then took advantage of the absence of effective constitutional review and started reforming the judiciary in its entirety. Each of the proposed reforms failed to address the key problems of the justice system’s functioning, like e.g. excessive length of proceedings, access to a defense lawyer or access to free legal aid. Instead, the governing majority focused on the Supreme Court which is the highest instance court in Poland and on the National Council of Judiciary which is a constitutional body responsible for protecting the independence of judges and courts. Parliament passed new laws regulating the workings of these two institutions, which resulted in politicians gaining wide supervision powers over these institutions. Parliament also adopted changes which allow the Minister of Justice to dismiss the presidents and deputy presidents of all common courts and appoint new judges in their place.
Parliament has also passed laws that have restricted other fundamental freedoms, such as freedom of expression when it passed the so-called “Holocaust Law.” These types of laws would never be passed if lawmakers knew they would be subjected to effective Constitutional review.
Is the situation likely to improve?
No, as long as the government is able to write laws that are not subject to substantive Constitutional review democracy will be under threat. In fact, the situation is likely to become much worse as new legislation has basically abolished legitimate oversight of the election process.
Why should Americans Care?
To begin, the American people should care because it is the right thing to do, especially with a country with which it has a long and storied relationship. The US was one of the first countries to recognize Polish independence close to a century ago and was instrumental in our transition to democracy. I am not speaking out here because of my personal beliefs, but rather because the ruling party has put our young democracy in peril and the Polish people need your support to preserve and protect our Constitution and their rights and freedoms.
The loss of an independent judiciary could also have serious financial implication for Americans with business interests in Poland. Many judges will be worried that if they rule against the Polish interest in a case that it will have negative implications for their career. That means that an American caught in a contract dispute with a State-owned entity, or one with close ties to the State, may not get a fair trial. The same would be true for issues regarding tax and property rights.
Americans should also be concerned about destabilization in the region. NATO is founded on the principles of democracy, individual liberty, and the rule of law. When these values are eroded in a member country it must become a concern of its allies. It is in the interest of the both the US and Poland for these relations to be based on mutual and democratic values.
What can US policy makers do to help?
They should consider:
Issuing an official statement of concern (in a form of letter or resolutions) addressing the reforms introduced in Poland and their negative impact on the protection of the rule of law in Poland.
The administration (including the Embassy in Poland) should follow-up on these calls by responding in a timely manner publicly each time the Polish government makes a serious step that threatens the rule of law.
The problem of respecting the rule of law in Poland should be mainstreamed in the Polish-American relations. The US Government officials should raise this problem in their bilateral talks and in the frame of joint initiatives with their Polish counterparts. Furthermore, US officials should use all opportunities to communicate with their Polish counterparts about these concerns – including at meetings of the Security Council, at the NATO Summit, and NATO Parliamentary Assembly where both will be present.
What can members of the ABA do to help?
Keep monitoring the situation and supporting your colleagues in Poland who are working to preserve the independence of the judiciary and rule of law. It would also be useful to let your representatives know that you are concerned about the security and/or financial implications of the loss of the rule of law in Poland and ask them to take action.