Populism, politics, and the Polish courts

Several months’ worth of rumblings over the fate of the Polish judiciary came to a head this week when the country’s legislature debated a controversial judicial reform bill. Like the judicial crisis in Ireland that unfolded earlier this summer, the Polish controversy is worth unpacking and monitoring closely.

The reform bill discussed this week was shepherded through the legislature by the Law and Justice (PiS) Party, a populist, conservative party that has been in power since 2015. The bill would give legislators and the Justice Minister the power to appoint new judges without input from the judiciary. It would also create a new code of ethics for the country’s judges. A second bill would require all Supreme Court Justices to resign (unless permitted to stay by the Justice Minister), and new Justices appointed in their stead. The PiS leader, Jaroslaw Kaczynski, has justified the moves by saying that the country’s judiciary had not sufficiently reformed from its communist past, and that “radical changes” were needed.

Opposition leaders and other European observers have painted the bill as a power grab that would compromise judicial independence and threaten the rule of law, and have even asked for international oversight of the vote on the bill. On Sunday, thousands of protesters jammed the streets of Warsaw to protest the legislation.

What should observers make of this?

From the perspective of judicial independence, there are several causes for concern here. The bill effectively allowing the government to replace the Justices of Poland’s top court in one fell swoop is particularly egregious, a transparent attempt at of court-packing that Americans wholly rejected in the 1930s (and even more recently at the state level). It is all the more transparent since the Supreme Court in the “new” system would be tasked with determining the validity of elections.

Also deeply troubling is the fact that PiS already packed another top court, the Constitutional Court, with party loyalists starting in 2015. Then, this June, the PiS asked the Constitutional Court to determine whether the Supreme Court’s appointment procedures were constitutional. If the process were deemed unconstitutional, PiS could remove the Supreme Court’s Chief Justice, Malgorzata Gersdorf, who has protested the proposed changes.

As for concerns about insufficient reform of the judiciary since the end of communism in 1989, it is worth noting that Chief Justice Gersdorf was a member of Lech Walesa’s anti-communist Solidarity Party in the 1980s.

Poland is a critical American ally, and Americans should demand that it stand up for judicial independence and respect for the rule of law.

This story will likely develop quickly in the next few days.  Stay tuned.

N.B. — This post was edited to clarify that the bill had not been passed at the time of the post.

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