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Judicial Reforms Create Parallel Legal System in Poland

The ruling Law and Justice party has made numerous changes to weaken the judiciary’s independence.

Mateusz Morawiecki
Polish prime minister Mateusz Morawiecki gives a speech at the Constitutional Tribunal in Warsaw, April 11, 2019 (KPRM/Adam Guz)

Poland’s ruling conservative party’s obsession with bending the legal system to its will is creating what the Financial Times calls a parallel legal system: one set of judges are loyal to Małgorzata Gersdorf’s still-independent Supreme Court while another obey the government-friendly Constitutional Tribunal.

Reforms

Since returning to power in 2015, the right-wing Law and Justice party, led by Jarosław Kaczyński, has passed, or tried to pass, numerous reforms to weaken the judiciary’s independence.

  • The party packed the Constitutional Tribunal, which tests the constitutionality of new laws, with loyalists.
  • It tried to force a third of Supreme Court justices to retire.
  • A majority of members of the National Judicial Council, which appoints lower-court judges, are now picked by parliament, where the right has a majority.
  • The justice minister has been given the power to unilaterally dismiss court presidents.
  • A disciplinary chamber, appointed by the president from names chosen by the National Judicial Council, has been created that can suspend judges.
  • A new “muzzle law” allows judges who question the government’s legal reforms to be fined or fired.

Pushback

There has been pushback:

  • The European Court of Justice forced Poland to reinstate 22 Supreme Court justices, including Chief Justice Gersdorf.
  • The Supreme Court has ruled that judges appointed by the rejigged National Judicial Council are illegitimate.
  • The Senate, where Law and Justice does not have a majority, voted down the muzzle law in January, but the lower house enacted it again.

Poland’s European neighbors are alarmed. The European Commission is conducting its first-ever rule-of-law review of the judicial reforms.

But there is not much the EU can do beyond issuing condemnations. Any punishment, such as suspending Poland’s voting rights, would be vetoed by Kaczyński’s ally in Hungary, Prime Minister Viktor Orbán.

Why all the changes?

Law and Justice claims it is purging judges who served under communism and trying to make the justice system more efficient.

However, most Polish judges are too young to have served prior to 1989 and the reforms do nothing to speed up trials.

The more likely explanation is that the courts did a lot to frustrate the previous Law and Justice government, from 2005 to 2007, and the party understands that an independent judiciary stands in the way of its vision of an illiberal democracy for Poland.

The judicial reforms are not the only aspect of Kaczyński’s efforts to remake the country. His party has also purged political opponents from government agencies and state-run companies. Critical media outlets have been threatened by lawmakers. Poland has thrown EU recommendations to the wind and simultaneously lowered taxes and raised spending on child benefits and pensions. Kaczyński has called gay rights an “import” and dozens of local authorities controlled by Law and Justice have declared themselves “LGBT-free zones”.

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