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The Polish government is taking aim at the country’s justice system, intent on pushing through reforms that critics are warning could threaten the separation of powers.
A strange protest camp has formed outside the Supreme Court in Warsaw's Krasinski Square. "The court must go to court," reads one sign. The protesters have arranged toilet seats, sofas, and rickety office furniture in a representation of how they see the Polish justice system. The right-wing demonstrators are calling on their right-wing government to crack down on what they see as the excessive power of the courts.
Putting the courts on trial is just what the country's conservative nationalist government wants. On Tuesday, the constitutional court spoke out about the National Council of the Judiciary, an independent organization that plays a decisive role in the appointing of judges. Of the council's 25 members, 15 were previously appointed by various judges' assemblies, but that is now set to change. In future, the governing Law and Justice Party (PiS) wants them to be elected by parliament. Additionally, the term of the current council members is to be shortened.
According to the constitutional court, the previous rules for appointing judges to the council were unconstitutional. The decision paves the way for new legislation, which will soon be put before parliament. Effectively, it means that PiS, under the leadership of Jaroslav Kaczynski, will wield considerable influence over the courts, and be able to sideline any troublesome judges.
Giving the judiciary back to the people
The constitutional court resisted this development for about a year, but that came to an end with the appointment of PiS-backed judge Julia Przylebska to the head of the tribunal. Now, the Supreme Court is in the government's firing line instead.
Here, too, parliament - where PiS has an absolute majority - is playing a key role. A group of PiS MPs has asked the constitutional court to determine whether the process for appointing Supreme Court judges is constitutional. If the constitutional court were to rule in line with the government, then law professor Malgorzata Gersdorf, who was appointed chief justice of the Supreme Court in 2014, would then be seen as having illegitimately attained her office, paving the way for her removal.
For PiS, such tactics represent a success: they are giving the judiciary back to the people that elected this parliamentary majority. That's according to Stanislav Piotrowicz, a former communist prosecutor who now serves the anti-communist PiS as chairman of the parliamentary judiciary committee.
'A great danger for Polish democracy'
Jaroslaw Kaczynski was educated as a lawyer during the era of communist rule in Poland, a time when the principle of the separation of powers was not as highly lauded. Civil rights activists like Aleksander Hall, however, see that principle as a cornerstone of any democracy. Dating back to Montesquieu, the separation of powers has had significant meaning for every democracy, he said. "But the PiS wants to introduce a completely different system in Poland," Hall added. "This system change is a great danger for Polish democracy and individual freedom."
There will be judges in the future who administer justice independent from the pressure of the government, Hall wrote in Polityka magazine. But, "they will have to deal with chicanery and public smear campaigns, just like constitutional judges and judges from the highest courts. Perhaps also with provocations from the secret services." The campaign against the so-called "courtocracy" destroys respect for the rule of law and the courts, especially on the part of government supporters, he added.
Adam Stzrembosz, the former president of Poland's Supreme Court, has also been critical of the latest developments in Poland. He fears that the attack on the provincial council will "destroy another fundamental instutition of the democratic, constitutional state." Even worse, he added, is the attack on the Supreme Court, whose judges were revamped in 1989.
"How can Jaroslaw Kaczynski so shamelessly call the Supreme Court a bastion of post-communism today?" Stzrembosz asked. "If that is the case, then I suggest Kaczynski give up his doctorate."
President Andrzej Duda, who almost always signs off on Kaczynski's actions, could one day be put on trial for the destruction of the constitutional court, said Stzrembosz. Whatever happens, the outcome will have long-term implications for the country - and its leaders.