Polish government brings forward plans to assert control over judges

Debate on proposals to give government power to appoint and dismiss judges moved forward at short notice in wake of protests.

The Polish government has brought forward its attempts to assert political control over the country’s judicial system, after thousands of Poles took to the streets in cities across the country.

Demonstrations took place at the weekend to protest against a series of moves by the ruling rightwing Law and Justice party (PiS) to assume power over the appointments of judges and members of the country’s supreme court.

On Sunday, protesters held a rally outside the Polish parliament, followed by a candlelight vigil outside the supreme court. Gathered on Krasiński Square, at the same spot where the US president, Donald Trump, gave a controversial speech to pro-government crowds earlier this month, protesters projected “This is our court” on to the court building as the music of Polish composer Frédéric Chopin played in the background.

The government describes the moves as a necessary means to speed up the process of issuing judgments and to break what it describes as the grip of a “privileged caste” of lawyers and judges.

Parliament is considering legislation that if enacted would instantly terminate the appointments of all 83 judges sitting on the country’s supreme court, except for those kept on by the minister of justice.

It follows the passage of legislation last week that gives parliament control over a hitherto autonomous body charged with the appointment of Polish judges. The legislation also gives the minister of justice the power to dismiss and appoint court presidents, who decide which judges sit on which cases.

“The judiciary branch, according to these three laws, would become subjugated to the executive,” said Ewa Łętowska, a professor at Poland’s Institute of Legal Sciences and a former judge who served on the country’s constitutional tribunal and the supreme administrative court.

The government appears to have been emboldened by the visit of President Trump earlier this month, whose speech in Warsaw was considered by many in Poland to have given the United States’ blessing to the government’s brand of so-called “illiberal democracy”.

“Trump’s visit proved to the domestic audience that the PiS government isn’t alienated abroad, further strengthening its claim to reform the country,” said Wawrzyniec Smoczyński, managing director of Polityka Insight.

State media, controlled by the government since the passage of a controversial media law in 2015, has portrayed the ongoing protests against the changes as a violent “coup against the democratically elected government” by a militant liberal elite that has benefited from the country’s transition from Communism to liberal democracy.

“Courts in our opinion are the stronghold of post-communists in Poland,” said the Law and Justice leader, Jarosław Kaczyński, adding that the supreme court was “protecting people who had served the old [Communist] regime”, and that the country’s judicial system was “controlled by lefties and … subordinated to foreign forces”.

But critics say that bringing the judicial system under political control will do nothing to improve its efficiency, and instead will leave judges dependent on political patronage and subject to political pressure.

“The courts are sometimes too slow, some of the fees payable by citizens are too high, the system of legal aid is inadequate and under-financed – we can see the problems,” said Mikołaj Pietrzak, chair of the Warsaw Bar Association. “But this is like going to the doctor with the flu and he treats you by amputating your leg.”

Widely regarded as the last remaining check on the government’s power, the supreme court is the highest court of appeal for all criminal and civil cases in Poland, and is also charged with ruling on the validity of elections, as well as approving the annual financial reports of political parties and adjudicating upon disciplinary proceedings against judges.

Because the draft legislation presently under consideration was introduced as a private member’s bill, there is no obligation for public consultation. It had been due to be debated on Wednesday this week, but the debate was moved forward at short notice to Tuesday, with some analysts saying it could be passed as early as this week.

It would obligate supreme court judges to consider “Christian values” when making rulings. “In social life, apart from legal norms there also operates a system of norms and values, undefined in law but equally established, derived from morality and Christian values … The supreme court should take this duality into account in its rulings.”

When Małgorzata Gersdorf, the president of the supreme court who earlier this year wrote an open letter to the judicial profession urging them to “fight every inch” for their independence, addressed parliament on Tuesday morning, she was met with cries of: “Get lost!” and, “You’re lying!” from the government benches.

The ruling party has already taken effective control of the country’s constitutional tribunal, which rules on the constitutionality of legislation and the actions of the government and other state bodies, amongst other responsibilities.

After the expiration in December of the term of Andrzej Rzepliński , the former president of the tribunal, three PiS-appointees all called in sick on the day that the court’s judges were due to vote on Rzepliński’s replacement. Their absence denied the meeting a quorum, and a new president of the tribunal was appointed by the president, Andrzej Duda, instead. The tribunal’s new president promptly sent Rzepliński’s deputy on indefinite leave, giving PiS-appointees a majority.

The supreme court is due to rule on the legality of the government takeover of the constitutional tribunal in mid-September, a deadline that some analysts say may have forced the ruling party’s hand to act before the August recess.