“The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” The words of Dwight D. Eisenhower which have become more apposite following recent developments in Poland as the government seeks to enact its reforms of the judiciary prompting widespread protests that the rule of law and democracy is under threat and causing the president last week to veto two out the three contentious bills passed by parliament (please see Veto). The passing of the third bill was enough to cause the European Commission on Saturday officially to launch enforcement proceedings against Poland.
The Commission has been warning of this possibility for many months starting from the tussle over the changes to the composition of the Constitutional Tribunal which began after PiS assumed government following its victory in the October 2015 general election. The Council of Europe’s Venice Commission also entered the fray, and the Polish government, which has dismissed these interventions as unwarranted attacks on Poland’s internal affairs, has hitherto taken little notice.
The Commission has now sent a “letter of formal notice” requesting the government to respond within a month. It has identified several provisions in the new legislation that might contravene EU law, including discrimination on the on the basis of sex and the discretionary power given to the minister of justice. The Commission said that the law introduces different retirement ages for male and female judges and that “the new rules allow the minister of justice to exert influence on individual ordinary judges through, in particular, the vague criteria for the prolongation of their mandates thereby undermining the principle of irremovability of judges”, something which is contrary to article 180 of the Polish constitution. Still, one man’s constitutional safeguard is another man’s minor bump in the road to total power, as is seeming to be the case here.
European Commission Vice-President Frans Timmermans sent a letter on Friday inviting the Polish foreign and justice ministers to a meeting in Brussels “at their earliest convenience in order to relaunch dialogue.” Meanwhile, Krzysztof Szczerski, the head of the Polish president’s office, told the PAP news agency on Saturday that “with regard to the Polish reform on the judiciary, the EC is looking for pretexts to demonstrate its competence in cases where it obviously does not have it”. “The way the justice system is organized is an internal matter of every state and that is why it differs so much across the EU,” Szczerski said. According to Szczerski, by launching the procedure the commission has entered “a road that leads to nowhere,” although one might well contend that the Commission’s destination is to be preferred to the government’s direction of travel.
For its part, the Polish foreign ministry is sticking to the party line. In an interview for the PAP news agency, deputy foreign minister Szymański said that the new law contained “procedural guarantees and legal remedies,” adding that the ministry considers the Commission’s decision to be “unjustified.” “It also needs to be remembered that social policy and the organization of the judiciary are the competence of member states”, he added. Which is true, although that is within the context of generally held principles, the apparent breach of which by this legislation is the Commission’s concern. Representatives of opposition parties Civic Platform , Nowoczesna and the Polish People’s Party told PAP that they expected the government to resume the dialogue with the commission.
Apart from the philosophical arguments and the potential danger inherent in any system where the minister of justice and chief prosecutor has an influence who presides over a court, there is the practical effect on the Polish economy to consider. On Monday ratings agency Moody’s said in a report that the continuing row between the Commission and Poland could affect investor confidence, since the planned reforms threatened the independence of the courts and separation of powers which could lead to a rise in corruption. Moody’s said that since Hungary has said it supports Poland, and sanction require unanimity, it does not expect the EU actually to enforce sanctions against Poland, but investor sentiment could still be negatively affected.
Nor did Moody’s draw much comfort from the president Duda’s announcement that he would draw up alternatives to the two bills he vetoed since the agency believes that they will be similar to the government’s proposed bills, given the president’s closeness to PiS. Be that as it may, and with the government determined to have its reform, this story is far from over.