“Men rise from one ambition to another: first, they seek to secure themselves against attack, and then they attack others.” The words of Niccolo Machiavelli which are, perhaps, not inapposite when considering the latest intervention – the suggestion by a UN envoy that Poland’s justice system in under attack – in the continuing controversy over judicial independence and the rule of law of law in Poland.
According to Diego Garcia-Sayan, a United Nations special rapporteur who arrived in Poland on Monday, both the independence of the judiciary and the rule of law are threatened. Commenting on the government’s planned reforms to the judiciary, Garcia-Sayan said the changes appeared to be worse than the system they were supposed to fix, adding for good measure that they were an attack on the courts and that they undermined the separation of powers. He referred to changes to the Constitutional Tribunal as the “first victim” of the changes under the Law and Justice (PiS) government, which was elected two years ago.
Garcia-Sayan, who spoke to officials from the justice and foreign ministries, the president’s office, courts, and the human rights commissioner while in Poland, also criticised the changes to the Supreme Court and to the National Council of the Judiciary which he said were being discussed “behind closed doors”. New laws are indeed being discussed by President Duda and the leader of PiS, Jarosław Kaczyński, following the former’s veto of two of the three bills proposed by PiS in the summer, proposals which lead to protests at home and fierce criticism from abroad. He is expected to give a full report on the situation in Poland to the UN’s Human Rights Council in mid-2018.
Poland’s foreign minister, Witold Waszczykowski, denied Garcia- Sayan’s allegations, saying that although he was entitled to his opinions, Poland was entitled to disagree, and that if the separation of powers and the independence of the courts “are threatened … then it means they still exist”, not dissimilar, one might think, to the view that if the drowning man is waving for help, he must still be swimming. Besides, Garcia- Sayan was criticising reforms “which have not happened yet”, Waszczykowski added.
And as if that wasn’t enough for one week, a team from the Venice Commission, the Council of Europe’s advisory body on constitutional matters, was also visiting for two days to look at changes to Poland’s prosecution arrangements. Of particular focus was the merging in January of the justice minister and prosecutor general posts, on which the Commission is to present its opinion in December.
A PiS Sejm deputy, Dominik Tarczyński, said that his fellow party members justified the changes in Poland by reference to specific examples of similar arrangements in other countries. For his part, Borys Budka, a deputy from the opposition Civic Platform (PO) party and a former justice minister said: “We raised all the concerns we had during the legislative process, starting with the express speed with which this bill [on the prosecution service] was worked on, and ending with procedural powers being given to the prosecutor general, who is a politician”.
So far, so typical, but what conclusions may be drawn? Much will depend on the final shape of the laws to replace those vetoed by the president. The exercise of the veto was perhaps inevitable after Jarosław Kaczyński’s outburst in the Sejm, when he accused the opposition of having been responsible for his brother’s death, if the president were not to be seen as a puppet of the party leader. Of course, the cynics will argue that the veto was part of a plan to make the changes proposed by the president seem more palatable, even if they turn out to have be little different from what was originally proposed by the government.
In this regard PiS has been suitably Machiavellian. Expecting elements of its programme to be resisted by the opposition and perhaps struck down by the Constitutional Tribunal, it sought to neutralise that body before progressing through the rest of the judiciary, while tapping into a feeling a discontent with the judiciary, and accruing excessive power in the person of the minister of justice. That process has, pro tem, been interrupted but, to a large extent, having freed itself from effective attack by the opposition, the government has been able to attack others. Others, for these purposes, principally includes the opposition, and the European Union for its various interferences in Polish affairs. And while at face value, this has been a successful strategy for PiS, with the party enjoying record support according to the latest opinion poll by CBOS, which puts it on 47 per cent, far ahead of PO on 16 per cent, whether this policy of continual attack is sustainable remains to be seen.