“Criticism may not be agreeable, but it is necessary. It fulfils the same function as pain in the human body. It calls attention to an unhealthy state of things.” The words of Winston Churchill which, save for criticism which is unjustifiably malicious, seems as good an explanation for the constructive role of criticism in public affairs as any. Of course, to some folk criticism is never welcome, and this includes the Polish government, which does not like criticism unless it is the one doing the criticising.
Thus, the latest spat in the continuing dispute between Brussels and Warsaw as to the status of the rule of law in Poland which saw Marek Prawda, head of the European Commission Representation in Poland, summoned to the foreign ministry in Warsaw on Thursday, “in connection with media reports about an analysis of Poland’s justice system drawn up by the European Commission Representation in Poland,” according to a ministry statement.
In the view of the ministry, “the document sponsored by the European Commission Representation in Poland and its head” gives an inaccurate picture of changes at Poland’s National Council of the Judiciary (KRS), a constitutional body whose role is to safeguarding the independence of courts and judges. The ministry said that this report presents those changes “in a cursory manner, without proper reporting on the minister of justice’s position, which has… been publicly expressed.” And, for good measure, the ministry also said the document “is clearly defamatory in nature” in its part referring to “alleged persecutions of judges who object to the planned reforms.”
The ministry of justice has indeed made its position clear. In place of the current arrangements where judges are chosen autonomously by their peers, the proposals envisage that the terms of all the judicial members of the KRS would be terminated within 90 days of the draft law’s enactment. Their replacements would be selected by the Polish parliament, with the speaker of the parliament given discretion as to which candidates should be put forward for consideration. The KRS’s judicial members at present enjoy a majority, but under the government’s proposals the body would be split into two chambers, one for judicial members and one for political representatives. Since both chambers would have to agree to an appointment, this would in effect give the political representatives a veto over decisions made by the judicial members.
The government describes the proposals as “enhancing democracy and independence” by freeing the appointments process from “the corporate interests of the judicial environment”, citing the judicial appointments process in countries such as Spain and Germany. “Objectivity in selecting members of the National Council of the Judiciary and their independence from corporate interests is to be ensured by them being selected by the Sejm, which holds a mandate gained in democratic elections. A similar system is successful for instance in Spain,” said the ministry of justice in a statement.
Not all agree. “The government’s proposals will be an instrument for ensuring the appointment of the ‘right’ kind of judges who will not be too critical of the authorities and their political programme,” 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 council is an independent constitutional organ that was instituted in 1989 in order to safeguard the independence of the judiciary, because in the communist era everything was dependent on the ruling party,” Dariusz Zawistowski, chairman of the KRS and a serving supreme court judge, told the Guardian. “When members of the council are elected by the parliament, this function of safeguarding the constitution will be pure fiction. Formally speaking, there would be no independent judiciary.”
Shortly after assuming power in 2015, the government merged the office of prosecutor general with that of the justice minister, Zbigniew Ziobro, a move that some argue has already allowed the government to exert political pressure on judges. “We have already seen numerous examples of prosecutors answerable to the minister of justice initiating criminal proceedings against judges who have reached decisions they don’t agree with,” said Łętowska.
No doubt the minister of justice is a man of the utmost probity and commitment to the rule of law and he has clearly demonstrated his belief in the principle that justice delayed is justice denied, since the KRS was given less than three working days to respond to the draft act. It described the proposals as “in obvious and gross contradiction with the Polish constitution.”
So there you have it. Once again the Polish government, working hard to correct the wrongs of previous governments, has had its motives impugned by ill-informed criticism. Or not.