Much ink has been spilled on the increasingly contentious political fight in Poland over how the country’s judiciary should be structured and the extent to which the government should be allowed to intrude in its operations. Since coming to power in 2015, Poland’s Law and Justice party (PiS) has enacted into law extensive reforms to the judicial system, including new rules for how judges are appointed, retained, and disciplined. The reforms include provisions lowering the mandatory retirement age of Supreme Court Judges from 70 to 65 and ordinary court judges to 60 for women and 65 for men, down from 67 across the board (though the Polish president can extend the tenure of Supreme Court Judges by five years at will). Another law established a disciplinary chamber empowered to investigate and punish judges in cases where their rulings are questioned, while a law concerning the Constitutional Tribunal shortened the tenure of its president from nine to three years and allowed the current Sejm (lower house of parliament) to annul and replace with its own nominees the appointments of three judges selected by the previous parliament. However, arguably the most significant source of the current controversy has been changes to the National Council of the Judiciary (KRS) responsible for appointing judges. While previously the KRS had been appointed by sitting judges, this power now rests with the Sejm, which has thus far approved 15 of 25 KRS members.
These sweeping changes have elicited charges from the Polish judiciary, European Union officials, and Poland’s opposition parties that the course pursued by the PiS government threatens the separation of powers. The reforms have also been broadly condemned in Western media. While the latest salvo in this long-simmering controversy is a ruling earlier this month by the European Court of Justice that Poland must immediately suspend the disciplinary chamber, the EU launched Article 7 proceedings against Poland already in 2017 on the grounds that the judicial reforms contravene fundamental values underpinning the Union. The European Court of Justice has also issued several other rulings against the PiS government, demanding that the reforms be rescinded.
The Polish government has responded that the changes are aimed at breaking up what it has called a “self-perpetuating caste” (kasta) within the judiciary. It argues that its reforms are crucial to tackling corruption and purging the system of an entrenched network of jurists with roots in the communist era who once lent their support to repressive policies under the old Soviet-backed regime. While the judicial overhaul has doubtless been clumsy and bedeviled by unequivocal legislative misfires, discussion of the controversy suffers from a lack of context. If we are to understand and not merely critique this reform effort, we must take seriously the concerns of its architects. This requires a broader consideration of the historical trajectory of Poland’s post-communist transformation.
Clearly, criticism directed at the above mentioned reforms is justified. They come dangerously close to undoing the core democratic principle of the separation of powers, and risking the politicization and subordination of the judiciary to the executive, especially if a given party holds a majority in the Sejm. However, this alone does not explain the drivers behind these changes. Deeper engagement with Polish history – rather than an exclusive focus on the law's institutional framing – offers a more productive way to make sense of the dispute currently unfolding in Poland.
The Polish judiciary is arguably the most “post-communist” of the three branches of government. It is all but insulated from the electoral competition in the public agora, which over time has forced personnel changes in the executive and the legislature. Reportedly, in 2019 every tenth judge in the ordinary courts and 36 of the maximum allowable 125 Supreme Court judges began their legal careers during the communist era. Additionally, 101 of the Supreme Court judges that have served over the past 30 years allegedly issued sentences on behalf of the communist regime during the Martial Law period (though no judges currently sitting on the highest court were involved in sentencing Solidarity activists under communism).
The accuracy of these numbers has been challenged, but the issue is not so much how many judges still active in Poland today are tainted by their service to the communist regime. Rather, it is the corrosive effect on institutional trust caused by a sense of grievance among a large segment of the population for whom the post-1989 transformation has failed to hold accountable those implicated in the country’s authoritarian past. To put it differently, the relative support for the government’s reform of the judiciary is not necessarily a function of Polish society’s desire to politicize the process for appointing judges, nor – as some critics have alleged – does it reflect the country’s especial proclivity for authoritarian governance. Warnings that Poland has been seized by a populist paroxysm that will inevitably steer it towards an illiberal future – or “Polexit” – are premature.
Historically, Poles have been fierce proponents of individual freedom and the right to self-determination. Yet today a majority appear to favor the PiS reforms – though not a proposal to grant special prerogatives to the interior minister – even though their institutional framing is clearly at odds with what is common practice in democracies. Polling conducted in 2017 revealed that only 31% of Poles were satisfied with the way the judiciary operated, while over 50% held a negative view of it. In addition, the last decade has seen a decline in support for the 1989 Round Table Accords, which ushered in the end of communism in Poland while sidelining the question of accountability for the preceding 44 years of communist repression. This allowed a segment of the communist party nomenklatura to become enfranchised in the new economy and continue to play key roles in the country’s politics. According to a 2010 study conducted by the Center for Public Opinion Research (CBOS), 43% of Poles believed the Round Table forged a positive “social compact,” while 31% saw it as a “conspiracy among elites,” with 26% undecided. More importantly, the study showed that in just one year the percentage for whom the negotiated transition represented a conspiracy had increased by 5% (from 26% to 31%) while the percentage of those undecided had declined by 4% (from 30% down to 26%). The results of another CBOS poll conducted in 2016 revealed that the percentage of the population espousing a negative view of the Round Table (i.e., that it constituted an “elite conspiracy” or an “operation by the secret services”) had increased 6 points to reach 37%, while the percentage who viewed it positively had declined by a point. By 2019, those with a positive view had dropped to 37%, with only 22% answering in the affirmative when asked whether the Round Table marked the end of communism in Poland (ten years prior, the number was 40%).
It is helpful to consider this data on the judiciary alongside polling on the Round Table because the judicial reform effort has been increasingly cast by the government as a mechanism for completing the post-communist transition. The fact that a majority of Polish citizens appear to believe that the Round Table was antithetical to a genuine break with the past and that Polish democracy remains tainted by the legacy of communism sheds light on their apparent acceptance of this controversial overhaul. Seen in this respect, the effort to reshape the judiciary is more than a legislative overreach by a party determined to put its parliamentary majority to maximal use; it is also for many Poles part of a more complex process aimed at burying the country’s communist past once and for all.
The greatest challenge when it comes to analyzing the forces driving the evolution of Polish democracy – including the ongoing political confrontation over the reform of the judiciary – is to understand the historical determinants at play. Normative statements are indeed important, but they can only take us so far. They certainly do not account for the complexity of Polish politics today. To put it simply, the past continues to weigh heavily on the country's present, and will continue to do so for some time.
Chelsea Michta is a Cambridge Trust Scholar and Ph.D. candidate in European history at the University of Cambridge.
April 27, 2020