Two Laws

“There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.” The words of Montesquieu which are not inapposite when considering the further proposed changes to the appointment and functioning of the Polish judiciary and, in particular, two laws which were approved by the upper house of Poland’s parliament on Friday evening.

If the two laws come into effect, that is if the president does not veto them, they will reshape Poland’s Supreme Court and reorganise the National Council of the Judiciary (KRS), the body that nominates new judges and which is also responsible for safeguarding the independence of the courts. The government regards these reforms as vital to tackle the inefficient and, it is claimed, sometimes corrupt system of justice. The opposition has criticised the changes as being unconstitutional and has accused the governing Law and Justice party (PiS) as trying to pack both the the Supreme Court and the KRS with persons loyal to PiS.

Will the president veto these laws? That seems unlikely given that he submitted two draft bills to parliament himself, having in the summer vetoed two government supported bills dealing with broadly the same subject matter. Of course, president Duda might decide that amendments made in parliament change the bill, but this also seems unlikely. His spokesman Krzysztof Łapiński said on Polish Radio 3 on Saturday that after the parliamentary process both laws retained all those provisions about which the president was especially concerned. And earlier, senior presidential aide Paweł Mucha had welcomed the passing of the laws by the Senate without further amendment, saying that he hoped the changes to the judiciary would “serve the Polish people.”

The view from Brussels is less sanguine. The European Commission will on Wednesday assess these changes to decide whether to invoke article 7.1 of the EU treaty. This means that, at the request of a third of member states, the European Parliament or the European Commission, the EU Council may declare that there is a “clear risk of a serious breach” by an EU country of the bloc’s values. The decision would have to be taken by a three-fifths majority of member states. Any sanctions against Poland would require the unanimous backing of member states and Hungary has said it will not back sanctions. For his part, Poland’s new prime minister, Mateusz Morawiecki, said on Thursday that triggering Article 7 would be unfair and that sovereign nations have the right to reform their judicial systems.

Meanwhile, German Chancellor Angela Merkel and French President Emmanuel Macron said in a joint press conference in Brussels that if the EU Commission does decide to take this action against Poland they will support it. Which does rather play into the hands of those who consider that Poland is being unfairly treated since both Germany and France are no strangers to ignoring EU law when it suits.

Be that as it may, what of the actual changes themselves? The Supreme Court will be able to conduct “extraordinary reviews” of final judgments by lower courts, including those issued as far back as 20 years. It does not take much imagination to see how that could be abused. Under new rules for the KRS, the lower house of parliament would elect the majority of the panel’s 25 members, with each parliamentary caucus being able to nominate not more than nine members. At present, the majority of panel members are judges.

In another change, an autonomous disciplinary chamber will be created within the Supreme Court, in part staffed by lay members elected by the upper house of parliament, while Supreme Court judges will retire five years earlier than now at 65, although the president will be able to extend the retirement age in individual cases. The forced retirement of Supreme Court judges was an issue on which the EU Commission has said in July it would be ready to trigger a formal warning to Poland. The Venice Commission had said the previous Friday that the planned changes put the independence of “all parts” of the Polish judiciary “at serious risk”.

And the question remains – are the changes a step in the direction of a more cruel tyranny or an attempt to right wrongs? Nobody questions that certain reform is needed and it is probably the case that as a relatively new democracy tries to put down roots the medicine may need to be drastic. The difficulty is that power tends to be abused by politicians keen to impose “winner’s justice.” The reforms could probably work with men of goodwill but these, despite the season, are apt to be in short supply in politics.

And so, as yet another year draws to a close, may I thank you for reading and wish you a merry Christmas and a happy new year.

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