(CN) – For the past four years, Poland has been at the heart of a uniquely European fight between nationalist politicians and European Union institutions over who gets to decide how an EU nation’s laws are made and its courts are run.
This constitutional fight just got even more intense on Thursday after Poland’s nationalist government, led by the Law and Justice party, passed a new disciplinary law that threatens the independence of Poland’s judges and defies edicts by European institutions.
On the same day, Poland’s Supreme Court, whose judges are fighting the Law and Justice reforms, said it didn’t recognize the rulings of judges appointed under a new system crafted by the ruling party.
Poland’s justice system is now deeply split. On the one hand, there is the authority of the Supreme Court, which enjoys the backing of Europe’s institutions, and on the other hand a new legal regime being set up by the Polish government.
“We risk the situation where we have two legal systems in Poland,” said Agata Gostyńska-Jakubowska, senior research fellow at the Brussels-based think tank Centre for European Reform, in a telephone interview Friday with Courthouse News. “We risk this legal chaos in Poland.”
The new disciplinary law passed Thursday must still be signed by Polish President Andrzej Duda, but he supports it and he relies on the backing of the Law and Justice party. He faces reelection in May elections, adding a political dimension to this fight over Poland’s justice system.
The new law is aimed largely at the Supreme Court and its resolution to not recognize judges appointed by a judicial body revamped by the Law and Justice party. The high court says changes made to the National Council of the Judiciary, a body that nominates new judges, have made it insufficiently independent from the executive and legislative branches.
The Supreme Court’s ruling was based on guidance the European Court of Justice issued to determine whether the council is sufficiently independent. About 500 new judges have been nominated by the National Council of the Judiciary and now rulings issued by these magistrates are thrown into doubt.
In response, the Justice Ministry said the Supreme Court’s resolution was illegal and had no legal effect. The ministry said Poland’s Constitutional Court was the appropriate body to consider whether the National Council of the Judiciary is independent. The Constitutional Court is considered more favorable to the Law and Justice government.
Thursday’s sweeping new legislation is being called a “muzzle law” by opponents because it allows the government to discipline – and even remove – judges opposed to the government’s judicial restructuring and who allegedly show a lack of impartiality. The Law and Justice party says the law tackles the “anarchy” of rebellious judges.
After seizing power in 2015, the right-wing and nationalist Law and Justice party made overhauling Poland’s justice system a priority, saying it wanted to fix a flawed system ruled by a caste of corrupt judges left over from the communist era. The government also argues the old court system was slow, inefficient and tolerated corrupt practices.
Aleks Szczerbiak, a politics professor at the University of Sussex and an expert on Poland, said in an analysis this week that the Law and Justice party believes Poland’s judiciary “was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite, which then co-opted a new legal establishment that perpetuated its legacy.”
He said the ruling party argues that the judiciary is “out of touch with ordinary citizens, and operated as a ‘state within a state’ incapable of reforming itself.”
Under this perspective, the Law and Justice party sees its mission as forcing the judiciary to become more accountable to elected bodies and therefore more democratic, the professor said.
But Poland’s legal establishment and centrist and left-wing opposition parties see it very differently and view the Law and Justice party as attacking the rule of law and stripping away the separation of powers, Szczerbiak said.
Gostyńska-Jakubowska said there is a need to make changes to judicial systems in post-communist countries, but she said the Law and Justice party was going about it in the wrong way.
“They are not the reforms needed, they are not a way to address shortcomings,” she said.
Europe’s most powerful institutions too are opposed to Poland’s reforms, which have included seeking to force judges into early retirement and setting up a new disciplinary chamber within the Supreme Court.
The European Commission, the EU’s executive branch, the European Parliament, the European Court of Justice and the Venice Commission, a judicial watchdog, have all strongly criticized the changes. Critics castigate the Law and Justice party as an authoritarian movement seeking to bring the judiciary under its control and stuff the courts with hand-picked judges.
Its judicial restructuring set off an unprecedented political and legal fight within the EU that is set to rage on. The European Court of Justice is being asked to weigh in on the new disciplinary law.
Poland’s defiance is also seen as a test of the strength of EU courts and institutions meant to ensure EU members uphold the rule of law and make sure there’s no back-sliding on democracy. Similar tensions are taking place between Hungary and the EU.
Gostyńska-Jakubowska said it is important for EU institutions to fight Poland’s judicial reforms.
“Is the EU right to intervene into something that many people see as their domestic matters?” she said. “The answer is yes. The deliberate attempt to undermine the rule of law, or in this case judicial independence, is not only a domestic matter because it is a challenge to the whole European project.”
She said the EU and its single economic market relies on mutual trust among member states
“If one state decides to undermine judicial independence, then another state cannot trust that the rights of its citizens will be respected,” she said. “So this is why this is a broader problem.”
In December 2017, the European Commission initiated for the first time so-called infringement proceedings against Poland. Under the EU’s charter, a member state can be penalized and even have its voting rights on European affairs suspended for failing to uphold the EU’s democratic and rule of law principles. But this is unlikely to happen to Poland because every other EU member state must agree on meting out punishment and with Hungary facing similar sanctions it presumably would vote against punitive measures against Poland. Those proceedings stalled last year.
As a member of the EU, Poland signed onto the EU’s founding treaties that require, among many other things, that countries ensure their justice system is fair and independent and that it abides by rulings of EU’s courts.
Instead, the Law and Justice Party has refused to back down and pushed ahead in its fight over control of Polish courts, sparking protests in Poland and drawing the ire of European officials.
In 2018, Europe’s highest court, the European Court of Justice, provisionally suspended Poland’s judicial reforms. Last year, the EU court ruled that Poland had failed to fulfill its obligations under the EU treaties.
Last October, the EU commission took Poland to the Court of Justice over rules subjecting Polish judges to disciplinary action. The commission alleged Polish judges face censure if they exercise their right to ask for preliminary rulings from the European court and for the content of their judicial decisions.
Under the new law passed Thursday, the Polish government can punish judges deemed to be preventing the functioning of the justice system or who refuse to recognize the legitimacy of other judges. Thus, under this law, Supreme Court judges might be disciplined and removed for refusing to recognize judges appointed by the National Council on the Judiciary.
The law also forbids judges from taking part in public activities deemed to undermine the functioning of state or that cast into doubt their independence and impartiality. Critics say this violates the freedom of expression and association of judges.
Gostyńska-Jakubowska said the Law and Justice party uses it electoral support as proof it is carrying out “the will of the people.” But she said many voters don’t understand the effect the changes will have on their lives. She added that the party is using generous social welfare programs to win the hearts of voters.
“They are more concerned about this,” she said about many Polish voters. “To many of them this is a remote problem and many of them think they will never face a court case.”
But she said the crisis now risks creating “legal chaos which at the end of the day creates problems for citizens.”
(Courthouse News reporter Cain Burdeau is based in the European Union.)