Poland, populism and unpopular judges

Polly Botsford

Poland’s nationalist government and the European Commission are at loggerheads over what the Commission views as systemic breaches of the rule of law. Global Insight investigates a clash between populism and unpopular judges.

In September 2016, 1,000 Polish judges gathered in Warsaw for an Extraordinary Congress. They discussed a series of actions by the Polish ruling party regarding the judiciary. Others had wanted to join them but there wasn’t enough room. After lengthy discussions, they passed a number of resolutions aimed at protecting their independence and limiting political interference. After the resolutions were published, there was a barrage of criticism of the judges in the Polish media and a minister at the Justice Department stated that it was: ‘in a state of war on a juridical elite’.

However, the European Commission agrees with the judges that their independence has been under threat and has tried to do something about it. Over a year ago, the Commission engaged a procedure called the Rule of Law Framework over ‘systemic threats to the rule of law’ in Poland. The government there has wholeheartedly rejected any recommendations made by the Commission and has refused point blank to mend its ways. 

In a published letter to the European Commission, not only does the ruling Polish Law and Justice Party (the PiS) dismiss the recommendations, but it lambasts the Commission over its handling of what it argues was just a ‘political dispute’ between political parties that ‘cannot be used as grounds for arguing that there is a systemic threat to the rule of law in Poland’.

The letter takes the opportunity to (indirectly) accuse the Commission of failing to ‘abide by such principles as objectivism, respect for sovereignty, subsidiarity and national identity’. It even goes so far as to (directly) accuse Frans Timmermans, the Commission’s Vice-President, who has been the driving force behind the investigation, of being ‘politically motivated’ and ‘serving to stigmatise [Poland]’.

The EU had very few legal powers to rectify systemic challenges such as in Hungary. As Orbán slowly dismantled the checks and balances, the Commission had little room for manoeuvre

Laurent Pech
Professor of European Law, Middlesex University

The recommendations, whichhave so outraged the PiS, were the result of an investigation by the Commission into a constitutional fracas in Poland going back to 2015. Broadly, what happened was: the recently-elected PiS blocked the swearing in of judges appointed by the previous government to the Constitutional Tribunal. When the decision to block the appointments was reviewed by the Tribunal, the PiS refused to allow the publication of the judgment. Subsequently, the PiS passed legislation to limit the length of judges’ terms in office and appointed a PiS supporter as chief justice.

Throughout this, the PiS’s stance (and its election ticket) has been that it intends to ‘end Poland’s post-communist era’ by transforming the court system. This has considerable appeal because the judiciary in Poland has not seen significant reform since the fall of Communism in 1989. PiS’s opponents argue, however, this is just populist talk and attempts to revamp the judiciary are just a means of consolidating power.

The nuclear option

The Commission investigated under its new Rule of Law Framework, which had only just come into being, in 2014. Poland would be its first subject. After some back-and-forth between Poland and the Commission, a series of recommendations were made to rectify what the Commission saw as rule of law breaches: unlawfully tampering with the mechanics of the highest court and the independence of the judiciary.

But the PiS has called the Commission’s bluff, with its robust and damning stance set out in its letter. The stark choice which the Commission – and the Council of Ministers – must now make is whether to let the matter pass or take serious action: the recommendations could simply be kicked into the long grass. Or the Commission could go in the opposite direction and adopt ‘the nuclear option’, suspending Poland’s European Union Treaty rights (under Article 7 of the EU Treaty). Either option poses dangers for the European project, for Poland and for the rule of law.

A brief history of the rule of law in the European Union

The notion that no one is above the law (not even those in power) is the sleeping partner in a democracy. The rule of law is supposed to stand firm against military dictators, against the divine right of kings, against theocracies. For Europe, it is now enshrined in Article 2 of the EU Treaty which tells us the rule of law is one of the fundamental and common values on which the EU is based.

In Europe it was, of course, the Ancient Greeks who kick-started the idea of the rule of law. In the late seventh and early sixth centuries BC, this civilisation had (sort of) created a society governed by laws. Herodotus wrote that: ‘although they are free, [the Greeks] are not free in all things; for they have a master, namely the law’.

Skip forward to thirteenth-century England and we find for the first time a sovereign submitting to a series of laws set down in the infamous Magna Carta, which even went so far as to protect the independence of the courts. But it is during the age of enlightenment when the rule of law really gets an airing: for instance, the French lawyer Montesquieu helped establish the notion of the separation of powers.

The rule of law was then turned on its head by the existence of ‘unjust laws’, such as in Germany under Nazi rule (and further afield in South Africa with Apartheid). How could such states exist in accordance with rule of law? So, after the Second World War, the rule of law gained a moral dimension – there could only be the rule of law if the law was also moral. It also gained its place in the Universal Declaration of Human Rights: ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’.

The EU Treaty made the rule of law a pre-condition to EU membership (Article 49). The European Court of Justice, the European Court of Human Rights and the Venice Commission have all contributed to a set of principles of what the rule of law means in practice. Though practices vary between member states, the principles include independent and impartial courts.

Meanwhile, in Poland itself, the fracas shows no signs of abating. The PiS has ploughed on with further, more radical changes to the judiciary, arguing that judges make up a privileged, self-appointed elite alienated from the electorate. A new Bill likely to pass into law over the Spring proposes that the appointing body for the judiciary should be completely overhauled. The PiS wants to abandon the notion that judges should appoint judges because the system is seen as elitist and anti-democratic.

Instead, the Bill would let Parliament appoint judges. Under the legislation, the appointing council, the National Council for the Judiciary (KRS), will be made up of 15 judges and ten political representatives all to be Parliament-appointed, who would in turn appoint judges – but with a voting system such that the political representatives would be able to veto any appointment they didn’t like.

The European Network of the Councils for the Judiciary has studied the Bill and believes it ‘raises concerns that the Polish government wishes to take control of the Council’ and ‘could harm the independence of the judiciary’. The KRS itself states: ‘this regulation leads to a clear politicisation of the judicial nominations process’.

‘Enemies of the people’

Criticism of judges is disturbingly in vogue right now. Poland is not alone in wanting to see apparently closed shops wholly opened. Even in the United Kingdom, justices have come under media attacks for reaching unpopular decisions, for being ‘out of touch’, for instance, in the recent constitutional court case relating to what role, if any, the UK Parliament had on proceeding with the notification to withdraw from the EU.

After the divisional court found that Parliament had to be consulted on (and so could, technically, block) notification, and ultimately, the Brexit vote, the UK newspaper, The Daily Mail, declared the judges in the case ‘enemies of the people’; their judgment a ‘glaringly undemocratic verdict’. Of the Supreme Court to which the case was appealed, the newspaper called it ‘a virtual closed shop’.

The media in the UK has focussed in on the political sympathies of judges, the implication being that judges cannot be truly independent. Though as yet unrealised by legislative proposals as in Poland, there have been calls to change the way UK justices are appointed as a means of solving the lack of independence. The Daily Mail argues that judges are chosen by ‘quangocrats’ and criticises ‘the secretive and opaque process’ of selecting Supreme Court justices.

The fact is that in Poland the legal establishment represents an entrenched elite and there is a lot of support for changing the institution and shattering that elite

Aleks Szczerbiak
Professor of Politics and Contemporary European Studies, Sussex University

In Hungary, the second term of Viktor Orbán and his Fidesz Party, which began in 2010, introduced a new constitution which restricted the power of some of Hungary’s courts. According to the International Bar Association’s Human Rights Institute’s report Still under threat: the independence of the judiciary and the rule of law in Hungary, 270 judges were forced into premature retirement as a result. The president of the constitutional court was dismissed and new powers have been given to a National Judicial Office whose president is elected by Parliament.

Hungary as the catalyst

Hungary’s actions were the catalyst for the Commission’s Rule of Law Framework, as Laurent Pech, Professor of European Law at Middlesex University, explains. ‘The EU had very few legal powers to rectify systemic challenges such as in Hungary,’ he says. ‘As Orban slowly dismantled the checks and balances within the Hungarian Constitution, the Commission found it had little room for manoeuvre.’

Pech explains that it has significant leverage when a country is vying for accession in terms of commitments to human rights and democratic norms, institutional reform and so on. ‘The rule of law is a condition of accession,’ he says. ‘But once a country has joined the EU, it is more a matter of political pressure within the Council.’

There was only one possible response to Hungary’s actions: to vote to suspend it from the Union (the Article 7 power). Faced with what has been termed: ‘the special measures’ option, the EU chose not to act directly against a member state. But it also decided that it didn’t want to be in that position again. The Rule of Law Framework was set up as a pre-Article 7 procedure, a process whereby the Commission could try to exert soft pressure on a member state where it saw an emerging ‘systemic threat to the rule of law’.

There’s a huge difference between occasional discrepancies in the rule of law in a particular country and a situation, like the one in Poland, where breaches in the rule of law were the main focus of an election campaign

Martin Šolc
IBA President

The question then is: who defines a ‘systemic threat’? What has happened in Poland is quite difficult to decipher, argues Aleks Szczerbiak, Professor of Politics and Contemporary European Studies at Sussex University in the UK. ‘The PiS would argue that the original sin in the Polish constitutional crisis was that the previous regime had tried to pack the Constitutional Tribunal with PiS opponents and that they, the PiS, were trying to restore some sort of balance,’ says Szczerbiak. ‘The fact is that in Poland the legal establishment represents an entrenched elite and there is a lot of support for changing the institution and shattering that elite. Significant numbers of ordinary Polish people do not respect the Constitutional Tribunal. The rule of law is only going to work if judges are respected.’

On the other hand, the continued onslaught of reform of first the Constitutional Tribunal and now the KRS looks more and more like a real ‘war on a juridical elite’ rather than an oratorical one. The PiS has other rumoured plans too, including introducing a new disciplinary process for judges. Whether or not something is purely political jousting or a real and systemic threat to the rule of law is a case of degree and context, says IBA President Martin Šolc. ‘There’s a huge difference between occasional discrepancies in the rule of law in a particular country and a situation, like the one in Poland, where breaches in the rule of law were the main focus of an election campaign... It is more serious by degree and by its context and warranted the attention of the Commission,’ he says.

Why we have Brexit

EU member states are not supposed to interfere in the domestic affairs of another member state. They are bound by EU law, which is transposed into respective national laws. But there has been no technical breach of EU law by Poland. The Rule of Law Framework’s legitimacy derives from the EU Treaty, which states in Article 2: ‘the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’.

But the problem is that this plays into the hands of the very governments the Commission believes are undermining those values. Populist anti-EU rhetoric uses the argument that the EU has ‘overreached itself’. Lawyer and former American Ambassador to the EU, Boyden Grey, has argued that the investigation into Poland demonstrates ‘why we have Brexit’. He says: ‘the EU is inserting itself into Polish affairs because it sees an opportunity to institute its framework, an authority that it simply conjured out of thin air’.

Jaroslaw Kaczynski, the leader of the ruling Law and Justice Party (PiS), speaks during a news conference in Warsaw, Poland, March 2017.

When Global Insightput such reservations to the Commission itself, the official’s response was fairly dogmatic: ‘The independence of the judiciary is of paramount importance to the rule of law, which is a cornerstone of free European societies and a necessary prerequisite for the functioning of the EU as a whole and every single member state.’

Šolc does not see the Framework as an overreach: ‘The rule of law is something which all theEU institutions, not just the Commission, should be concerned about and do something about. The EU has certain values that it stands for and the rule of law is one of them.’

Šolc argues that the Commission can rightly call out when enough is enough. ‘When the Commission sees that those [values] are not being upheld, that requires a clear “public” reaction,’ he says. ‘Instead of merely talking about it, the rule of law issues should be addressed at the highest level. Indeed, let’s face the fact that anything can be played by populists in their favour: they can twist anything because they don’t respect any values.’

Damned if you do….

While the Commission waited for Poland’s response, the European Parliament came up with its own proposals on the subject of the rule of law in member states. It passed a resolution to introduce a watchdog, which would monitor and report annually on member states and their record on democracy, the rule of law and fundamental rights.

The idea is that instead of having what MEPs call a ‘crisis-driven’ approach whereby the EU is having to respond to specific breaches, the watchdog would keep a constant eye on these fundamental issues. MEPs also hope that such an ongoing review would enable objective benchmarks to be established so it would be clear when a member state has fallen below the standards expected.

Hungarian Prime Minister Viktor Orban speaks during his state-of-the-nation address in Budapest, Hungary, February 2017.

The IBA is doing its bit too. A newly-established Rule of Law Forum launched its own project in January to analyse and monitor systemic threats to the rule of law. The project will gather information from different IBA sections and will report back on its findings. ‘We need information and analysis on any threats to the rule of law and this is a presidential priority for the IBA,’ says Carmen Pombo, Co-Chair of the IBA Rule of Law Forum.

In the meantime, however, the Commission must make a decision on Poland. Should it trigger Article 7 because the rule of law is under threat or not? If it does nothing, or makes no recommendations to the Council of Europe (which, procedurally, is the next step), this could lead to the constitutional situation worsening in Poland. It could also send a message that the EU lacks the political will to act in circumstances where its values are threatened. Could other member state governments be inspired by the PiS’s actions?

Šolc is clear on what should happen next. ‘Certainly the Commission should make the necessary recommendation to the Council [of Ministers] to trigger Article 7,’ he says. ‘But if it does, this could easily push the EU into another crisis. At a time when it has so many other pressing issues to contend with, a rule of law fallout could be disastrous.

The Article 7 process itself is a huge challenge. It requires a unanimous vote of all the member states and Orbán, a close ally of Jaroslaw Kaczynski, the leader of the PiS (and de-facto leader in Poland), has already stated plainly that he would vote against the suspension of Poland.

There is the possibility of triggering Article 7 against both Poland andHungary at the same time. This gets round the likely veto by Orbán because Hungary would then be classified as a member state under review and would not have a vote. So far, Timmermans has stated that he will be doing a lot of talking and is kick-starting discussions with various Council ministers. As one Commission official put it: ‘The idea is to gauge EU governments’ views and support for moving forward.’

The populist argument is simple: if the government of a country is elected, then the government’s policies are democratically-mandated. If judges block the government through the decisions they reach, they are blocking ‘the will of the people’ (Poland’s PiS talk a lot about the ‘sovereign people’).  Populism also blames the system within which judges operate: judges block ‘the will of the people’ because the system is elitist and secretive. The problem is, if you attempt to make a system more ‘democratic’ in its design, such as involving Parliament in appointing judges, that doesn’t make the judiciary any less political – it makes it more so.

Polly Botsford is a freelance journalist and can be contacted at polly@pollybotsford.com