“We are made wise not by the recollection of our past, but by the responsibility for our future.” The words of George Bernard Shaw which might, perhaps, have been in the mind of Poland’s President Duda, as he contemplates the continuing arguments over reform of the judiciary.
Indeed, for the president, these arguments have assumed great importance. Duda has described his continuing dispute with Justice Minister Ziobro over judicial reforms as “a dispute over the future of the country, the future of my compatriots.” Speaking in an interview for weekly Do Rzeczy, Duda said that it was “not the Law and Justice [(PiS)] community” that was attacking him, but “one of the coalition partners of PiS”. This is an apparent reference to the United Poland party, a socially conservative party headed by Ziobro that forms the government of Beata Szydło together with PiS, and the Poland Together group led by Deputy Prime Minister and Science and Higher Education Minister Jarosław Gowin.
Duda, who is originally from the PiS party, suggested that after the elections in 2011, Ziobro “betrayed Law and Justice” and aimed to break up the party and its parliamentary caucus. Duda also said: “This is not about Minister X or Minister Y, but about every justice minister who is prosecutor-general at the same time and who in my opinion should not have as much power over the Supreme Court as the law passed by parliament would have given him.”
And that is the key point which has been the concern throughout this dispute, the extent to which an individual should be in a position to exercise influence over the judiciary, especially when that person is a politician. By definition, a politician takes a partisan view of most things and it would be expecting super human qualities of a type hitherto unknown, for an elected politician anywhere, to be able to resist the temptation to interfere for political advantage when presented with such power. Which is why, of course, in most established democracies the separation of powers, or the rule of law, or both, have been seen as the only ways of safeguarding citizens’ rights and freedoms.
For his part, the party leader Jarosław Kaczyński, when asked to comment on the dispute said that he “does not want to deal with generational disputes between 40-year-olds” which, one might think, is a rather dismissive approach to such an important issue, and that he would not agree to superficial changes in the country’s justice system. He did admit that there were tensions between the government and the president following the latter’s veto – which veto probably became inevitable following Kaczyński’s outburst in parliament blaming opposition deputies for his twin brother’s death – in July of two out of three controversial government backed bills which would have given politicians wide powers over the appointment and dismissal of judges.
In response, President Duda last month put forward his own proposals for reorganising the country’s Supreme Court and the National Council of the Judiciary (KRS), which reviews and assesses candidates for appointment as judges. Under these proposals, members of the Supreme Court would retire at age of 65 with the ability to apply to the president for an extension, and not be retired at once as PiS had wanted, and which particularly concerned the European Commission in relation to Article 7 proceedings. In addition, members of the KRS would be elected by parliament with a three-fifths majority. There would be a “safety mechanism” to ensure continuity for the KRS in case parliament failed to muster such a majority. This would be allow the president to select candidates for the KRS if the lower house of parliament, the Sejm, failed to elect such judges within two months. Such a proposal would require a change to Poland’s constitution, something that the president also proposed.
Which brings the argument full circle. To amend Poland’s constitution requires two-thirds majority in parliament, something PiS does not have, hence the procedural shenanigans with the composition and function of the constitutional tribunal which began this saga after PiS’s assumption of government two years ago, an attempt to bring about a de facto if not de jure change to the constitution.
It remains to be seen how the president’s proposals are treated following the consultation period but, at least the judicial power grab by PiS has not quite succeeded so far and there is an opportunity, perhaps, for wiser counsel to prevail. It cannot be emphasised enough how fundamental to the rule of law is judicial independence and we do well, no pun intended, to remember the words of Aristotle: “At his best, man is the noblest of all animals; separated from law and justice he is the worst.”