January 18, 2019 Articles

Threats to judicial independence – not discussion of the Holocaust – are the real threat to Polish democracy

Polish Prime Minister Mateusz Morawiecki’s piece in Foreign Policy on recently enacted legislation in Poland to criminalize certain speech about the Holocaust missed the point.   While the so-called “Holocaust Law” – which garnered significant international concern – clearly warrants attention, it is symptomatic of a larger problem, namely politicization of the judiciary.  Failure to address the underlying cause will enable the adoption and implementation of laws that could undermine respect for human rights.

Independence of the judiciary, a necessary check and balance that protects democracies from authoritarian impulses, is under sustained threat in Poland.  The ruling Law and Justice (PiS) party began its most recent tenure by delegitimizing the Constitutional Tribunal through disregarding binding decisions and illegally swapping judges appointed to the bench with individuals sympathetic to the Party’s views.   This has permitted the Party to enact laws and then dictate which ones should be enforced without substantive constitutional review. 

Polish President Andrzej Duda has now referred the parts of the “Holocaust Law” that have been the target of negative international attention to the Constitutional Tribunal for review.  Even if the Tribunal strikes down these sections of the law, it will be a hollow victory so long as the Party can determine which court judgments to enforce.  What Poland needs is to restore judicial independence, so that laws unduly restricting freedom of expression and other fundamental rights will be rejected no matter which party is in power.

There are other sections of the “Holocaust Law” which also violate human rights, but escaped international attention, that are currently enacted and will not be subject to additional review.  One of the most concerning is a provision that permits civil lawsuits against individuals who defame the good name of Poland.  This makes Poles who try to restore democratic principles in Poland vulnerable to harassment and censorship.    

The “Holocaust Law” is not the only legislation recently enacted in Poland which runs counter to democratic ideals.  PiS also enacted a series of laws targeting the judiciary, purportedly to improve efficiency.  In fact, these laws give them control over key aspects of the administration of the judiciary, leaving judges and prosecutors who refuse to acquiesce vulnerable to demotion, termination, and even harassment through criminal charges.  Such concentrated power undermines the rule of law. 

Specifically, these putative reforms will force approximately 40 percent of current Supreme Court judges into retirement, except those personally selected by the president.  They also will terminate more than half of the members of the council, despite their constitutionally mandated terms.  These members are charged with safeguarding judicial independence, including selecting and promoting judges so that the resultant vacancies can also be filled with appointees allied with the ruling party. 

Changes in the law have already granted the Minister of Justice (a political appointee) temporary but absolute authority to recall and replace court presidents, who oversee case assignments in their respective courts.  The Minister of Justice also will have the authority, in his dual role as the Attorney General, to specify the strategy for any case and to replace, at-will, prosecutors assigned to cases.

Although the government has also promoted these reforms as necessary to purge the judiciary of backward-thinking “communists,” according to the Dean of the Warsaw Bar Association, such judges were culled when Poland transitioned to a democracy in the early 1990s.  Similarly, legal experts at the Warsaw-based Helsinki Foundation for Human Rights have noted that, while problems exist in the Polish justice system, such as unduly lengthy proceedings, the new legislation does not meaningfully address these issues.  To the contrary, one of the court presidents who was recently demoted had one of the most efficient courthouses in the country. 

In another highly problematic example, the government established an additional new chamber in the Supreme Court that will allow a handful of officials, including the politically appointed Prosecutor General, to re-open cases previously resolved in the courts.  Any case that has been tried since 1997 may have its original decision quashed by judges sympathetic to the current government.  So much for increased “judicial efficiency.” 

If left unchecked, the current government’s campaign against judicial independence in Poland could culminate in a more pliable justice system, largely unable to fulfill its critical role of upholding Poland’s Constitution and the rights of its citizens, and thereby eroding the rule of law.

Indeed, these developments have caused the European Commission to trigger a procedure to sanction an EU Member State for the first time in its history. 

The United States should consider a similarly strong response - it shares a long and storied relationship with Poland and the Polish people, and was one of the first nations to recognize Polish independence a century ago.  It should be made clear at every level of US relations with Poland, including in the forthcoming State Department annual human rights report, that the United States views these laws as a step back toward authoritarianism.   The State Department and our Embassy should continue our nation’s proud tradition of standing up for an independent judiciary as indispensable to democratic values.

Brittany Benowitz is Chief Counsel to the Center for Human Rights and the Director of the Justice Defenders Program. 

Disclaimer: The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of the American Bar Association.