Daniel Kawczynski is MP for Shrewsbury and Atcham and Chairman of the All-Party Parliamentary Group on Poland.
The EU and others have been swift to criticise the Polish Government’s judicial reform agenda. But is this really justified?
The 2015 Parliamentary elections gave Poland’s Law and Justice Party (PiS) a strong democratic mandate and an majority in the Sejm, a feat that had eluded any party since Communism ended a quarter of a century previously.
PiS was elected on a mandate to reform Poland’s judicial system to rid it of corruption – and 63 per cent of Poles agree their judicial system needs reform. With a 17-point lead in the polls, PiS is uniquely placed to take forward important systemic reforms and should not shy away from this opportunity.
However, this move is not without criticism. For example Donald Tusk, former Polish Prime Minister and President of the European Council, has been particularly vocal in his disapproval of this reform agenda. Is he right?
The first criticism surrounds a perceived erosion of the separation of powers. Montesquieu, the originator of the separation of powers, stated that judges must be “no more than the mouth that pronounces the words of the law”. Herein lies the problem for Poland.
Poland’s judiciary remains a hangover from the Communist era; many of its judges were the very same who handed down long prison sentences to Solidarity activists. It is composed of an established elite, appointing and promoting its own, defending oligarchs and an old way of life, slow to react to cases of judicial corruption, quick to exercise judicial activism and a good deal removed from being simply the mouth that pronounces the law.
It pursues an anti-reform agenda, supporting and protecting its own. Refusal to allow Freedom of Information requests for disclosure of expenses of judges incurred on taxpayer-funded credit cards, or requests pertaining to monopolies over procurement contracts, are recent examples of the shadows of corruption that lurk in the system and leave the judiciary far from Montesquieu’s vision.
Second, critics seem to imply that the PiS reforms are extreme, something that no sane democracy could advocate. Indeed, the reforms are not dissimilar to existing arrangements in other countries. The United States constitution, the embodiment of the philosophy of the separation of powers, has appointments to the Supreme Court made by the Executive, and ratified by the Senate.
Angela Merkel, the German Chancellor, has recently publicly criticised the PiS’s reforms, but politicians in her own country have been described by experts as having “a great amount of influence” when it comes to appointing and promoting judges. Judges for the constitutional court are chosen by a closed panel of 12 parliamentarians. The system for selecting federal judges has been described as “as transparent as a black hole”.
The EU has also criticised the measures, suggesting that they are in some way an anathema to democracy, human rights, and the rule of law as envisioned by EU treaties and by the European Convention on Human Rights.
However, this fails to take account of Article 4.2 of the Maastricht Treaty, which states that the EU shall respect the national identity of the member states and their basic political and constitutional structures, and contradicts the fundamental principle of the EU and its motto “united in diversity”. The PiS vision is a stricter adherence to Polish constitutional traditions, not the reverse, and we should welcome and support this improvement to existing judicial structures.
Finally, the reforms are criticised for being authoritarian. But is this fair? Isn’t it the case that a difference of opinion between government and opposition is a clear example of healthy democratic debate? Shouldn’t we be supportive of a Poland where all political parties are free to express themselves and present their points of view?
As recent events show, people are free to protest against measures they disagree with. A diverse press provides commentary on the debate and presents different perspectives. This is not a violation of democracy but a demonstration of democracy in action.
The measures will strengthen due process and the free and fair application of the rule of law in Poland by reinforcing the independence of the judiciary, increasing transparency and accountability in the judicial process, and meeting public demands for reform. These are all worthy and long-overdue objectives in a nation still grappling with the authoritarian legacies of a communist past imposed on Poland by the traumatic events of World War II and its aftermath. Reform is always risky in newer democracies, but that is not in of itself a reason to reject it.
For democracy to flourish and develop further in Poland, it needs an effective judiciary that reflects where Polish society is now and not the vested interests of 30 years ago. If the necessary changes to the judicial elite are to be made, they cannot be made from within by the vested interests that seek to preserve their power and privilege. Modernising Poland’s judiciary must be undertaken by the other branches of government, as has happened in other countries the world over.
PiS have the mandate to carry forward these reforms, and have made assurances to do so with safety valves and checks appropriate for a modern judicial system. The Opposition can oppose – happily that is their right in a democracy – but Poland should not be dissuaded from modernising and supporting its developing democracy by disingenuous cries of authoritarianism.