Hostile Takeover: How Law and Justice Captured Poland’s Courts

• Since Law and Justice came to power in Poland in 2015, it has waged a campaign to take control of the Polish judiciary in open defiance of the law, the constitution, and the courts. The changes to the judicial framework included among other amendments to laws on common courts, the National Council of the Judiciary, the Supreme Court; a refusal to publish and abide by Constitutional Tribunal rulings; and unconstitutional appointments to the Tribunal.
• As of May 2018, Poland’s ruling party enjoys direct control over the Constitutional Tribunal and the National Council of the Judiciary (body that appoints Polish judges) and is set to take control of the Supreme Court. An ongoing European Commission sanctions process, the so-called Article 7 procedure, has achieved little so far. On the legal level, an Irish court decision on a European Arrest Warrant case and an upcoming European Court of Justice decision could be indicative of a Europe-wide backlash brewing over the reforms.
• Whatever the outcome of these procedures, a situation in which Poland’s judicial arrangements are incompatible with the European Union’s democratic values and legal framework might be manageable in the immediate term, but it is not sustainable indefinitely.

Poland’s ruling Law and Justice party (PiS) is often described as a “conservative” party committed to upholding “traditional values.” Such labels miss the point: Law and Justice is first and foremost a political movement devoted to overturning Poland’s existing constitutional order and the democratic principles that underpin it.

PiS leader Jaroslaw Kaczynski has built his political career on the assertion that Poland’s democratic transition after 1989 led to a shadowy postcommunist “system” that controls Polish institutions, serves “postcommunist elites” at the expense of ordinary Poles, and is upheld by the country’s existing legal order.[1] All of Poland’s woes, from the social to the economic, can be attributed to the activities of this so-called system.

Law and Justice claims to be the only legitimate representative of the people’s interests, on the basis that they are the only ones fighting this so-called system and the constitutional order that they argue preserves its dominance. Kaczynski has long criticized what he describes as legal “impossibilism,”[2] the notion that it is impossible for a democratically elected Polish government to fulfill the “nation’s will” because of the checks and balances imposed on it by the Polish constitution.[3]

The party does not, however, enjoy a constitutional majority in the Polish parliament. To break the hold of “postcommunist elites” (in practice, anyone who opposes Law and Justice), PiS claims the right to disregard the provisions of the constitution so as to assert its control over the judiciary, which, it argues, has no right interfering with the people’s will.[4] In the domestic arena, this argument is made explicitly: as Kaczynski told supporters in 2016 during a speech in which he described opposition to PiS as a “rebellion”, in a “democratic state of law,” not even the highest judicial authorities, such as the country’s Constitutional Tribunal, should have the right to defy the executive:

"In a democracy, the sovereign is the people, their representative parliament and, in the Polish case, the elected president. If we are to have a democratic state of law, no state authority, including the Constitutional Tribunal, can disregard legislation."[5]

This briefing describes how Law and Justice put Kaczynski’s theories into practice since assuming office in 2015, using extraconstitutional means to seize control of the judicial institutions of the post-1989 Third Republic – an incremental but systematic process described by one distinguished Polish law professor as amounting to a “constitutional coup d’etat.”[6]

Law and Justice’s campaign to capture Poland’s Constitutional Tribunal was the central component of its wider push to seize control of the judicial institutions of the post-1989 republic and emblematic of the methods deployed by Poland’s ruling party since it assumed office in November 2015.

The Tribunal is Poland’s highest constitutional court, the final arbiter on the constitutionality of domestic and international law, and on actions taken by state bodies.[7] Described by Jaroslaw Kaczynski as “the bastion of everything in Poland that is bad,”[8] the Tribunal had thwarted Law and Justice in the past by striking down a series of measures taken by the previous PiS-led government 10 years ago—including a law on Poland’s media regulator, a controversial “lustration” law, and a commission to investigate the banking sector. Therefore, it should have come as no surprise to anyone that the Tribunal was targeted upon the party’s return to power.[9]

The ruling party’s strategy played out in three parts: First, to deny opposition-appointed judges from taking their place on the court. Second, to pass laws designed to paralyze the court and prevent it from functioning effectively. Third, to force through the appointment of judges loyal to the ruling party.[10] All this was done in open defiance of the law, the constitution, and multiple rulings issued by the Tribunal itself.

The crisis began in late 2015 when President Duda refused to swear in five Tribunal judges appointed during the last sitting of the outgoing parliament (Sejm)—despite the fact that he had no legal authority to do so.[11]

This was followed by a declaration in November 2015 by the new, PiS-controlled Sejm that all five appointments were void—again, a declaration the parliament had no authority to make. In response, the Tribunal issued a legally binding injunction ordering the Sejm not to appoint any new judges until it had assessed the situation. The new Sejm ignored the injunction, selecting five new judges on the night before the Tribunal’s ruling was due on December 3. Having been elected after sunset, four of the five were sworn in by Duda—again, in open defiance of the Tribunal—before dawn on the same night (the fifth was sworn in soon after). Incredibly, immediately after being sworn in the new judges were taken in governmental vehicles from the presidential palace to the Tribunal so as to participate in the December 3 ruling. At that point, the Tribunal’s president prevented them from doing so.[12]

The Tribunal’s December 3 ruling was unanimous: three of the appointments made by the outgoing Sejm had been constitutional, but two had not.[13] This was followed by a ruling on December 9 striking down a series of other amendments passed by the Sejm in November.[14] Taken together, the two December rulings made explicit that there were only two vacancies on the Tribunal for the PiS-controlled Sejm to fill, rendering three of PiS’s five appointments invalid.

The government, however, refused to recognize the rulings as legitimate, ordering state printing presses not to print them so as to prevent them from taking legal effect (by December 2016, the government had refused to print 17 rulings issued by the Tribunal).[15] Instead, the Sejm passed a so-called “Repair Act” on the Tribunal, consisting of a series of measures designed to prevent the court from functioning properly and to give the unconstitutionally appointed progovernment judges the power of veto over key decisions.[16]

The “Repair Act” was enacted with immediate effect, meaning that the government was demanding that the Tribunal assess the constitutionality of the Act in accordance with the rules as outlined in the Act itself—a trap likened by one legal expert to “a snake eating its own tail.”[17]

The Tribunal responded in a ruling issued on March 9, 2016 that the object of review cannot simultaneously provide the basis for the review itself if the constitution is to retain its supremacy over statutes issued by parliament, describing the Act’s provisions as amounting to a deliberate attempt to institute “a paralysis of the Court which violates in a decidedly arbitrary manner judicial independence, the separation of powers and the right of individuals to an expedient judicial process.”[18]

Again, the government refused to publish the ruling, arguing that it had violated the terms of the Act it was assessing. When the General Assembly of the Supreme Court issued a resolution declaring that the Tribunal’s rulings must be published, a PiS spokesperson described the Assembly as “a group of buddies preserving the status quo of the old regime.”[19]

The stalemate continued as long as judges insisting on the primacy of the constitution (and hence the rulings of the Tribunal) over regular law-making constituted a majority on the court.[20] Tribunal judges were put under intense pressure by ruling party politicians during this period, including public threats of prosecution.

In April 2016, Minister of Justice Zbigniew Ziobro—who also serves as prosecutor general after PiS merged the two offices in 2015—wrote a letter to court president Professor Andrzej Rzepliński stating that he “should adhere to the legislation or face a legal review;”[21] soon after, prosecutors initiated an investigation into Rzepliński’s conduct.[22] This followed comments by Witold Wasczykowski, then serving as foreign minister, saying that Rzepliński “increasingly reminds me of an Iranian ayatollah.” In Iran, said Waszczykowski, “it’s not the law as determined by democratically elected parliaments, governments, presidents which is the dominating law, but the interpretation of that law through jurisprudence.”[23] 

With Rzepliński’s term due to run out in December 2016, however, the government was able to shift its attention towards engineering the outcome of the court’s ostensibly internal deliberations regarding Rzepliński’s successor.

This it did in three stages. First, the court’s three PiS-appointees all called in sick on the day that the nine other Tribunal judges gathered to vote for Rzepliński’s successor, with Duda refusing the nomination of Rzepliński’s deputy on the grounds that the meeting had been one vote short of being quorate.[24] Second, parliament passed a law designating criteria for an ‘interim president’ to be appointed, designed so that Julia Przyłębska, a relatively junior PiS appointee, would get the role.[25] Third, Przyłębska presided over a new vote consisting of just six judges, all appointed by PiS: the three judges that had been appointed legally, and the three “non-judges” whose appointments had consistently been ruled invalid. The six voted for Przyłębska , and she was promptly sworn in by President Duda (according to Duda’s logic, in other words, six judges was enough but nine was not).

One of Przylebska’s first actions as president was to send Rzepliński’s deputy on indefinite leave; with another judge resigning, this gave PiS-appointees—including the “non-judges,” who were now allowed to participate—a majority on the Tribunal. The rulings from 2016 that had been so bitterly opposed by the government disappeared from the Tribunal’s website.[26]

Whereas for the government’s opponents Przyłębska continues to serve as a symbol of the Tribunal’s subjugation to the will of the ruling party, to supporters she embodied the first step towards Poland’s “liberation” from the existing constitutional order. This point was made explicit by Sieci, a magazine with close ties to Law and Justice, which made her its “Person of the Year” for 2017, arguing that “the election of Julia Przyłębska to the position of President of the Constitutional Tribunal marked the beginning of the rebuilding of the justice system in Poland.” At a gala ceremony, she was presented with the award—and a big bunch of flowers—by Kaczynski himself.[27]

Observers also noted a miraculous change in the government’s attitude towards the Tribunal: having publicly threatened judges with prosecution for insisting on the primacy of a legally constituted Tribunal, since Przyłębska’s appointment Minister Ziobro has publicly threatened prosecution against judges who do not recognize the primacy of the now illegally constituted Tribunal.[28]

Having taken control of the Constitutional Tribunal in December 2016, in January 2017 the government published its proposals for a radical restructuring of the Supreme Court and the National Council of the Judiciary (KRS). The timing of the proposals, in addition to the fact that they were drawn up without any public consultation, belies government claims that the proposals constituted a response to public demand, as opposed to the next logical step in a long-term plan to assume control of the judicial system as a whole.

The principal function of the KRS, which had been designed to give judges a majority so as to safeguard judicial independence, is to make judicial appointments;[29] the Supreme Court is the highest court of appeal for all criminal and civil cases in Poland and is also charged with ruling on the validity of elections, as well as approving the annual financial reports of political parties and adjudicating upon disciplinary proceedings against judges.

The government also published a major proposal on the functioning of ordinary courts, which gave the minister of justice the power to dismiss and appoint court presidents, who enjoy substantial formal powers and informal influence over the allocation of individual cases.[30]

The initial proposals on the KRS and Supreme Court were eventually passed in the Sejm but vetoed by President Duda in July 2017, in the face of mass protests and concerns and divisions within the ruling camp (the amendments to the law on the ordinary courts he signed).[31]

The vetoes marked not a change of heart, but a tactical retreat. Duda and Kaczynski retired to negotiate behind closed doors; meanwhile, the government used public funds earmarked for promoting Poland abroad to wage a domestic propaganda campaign, describing judges as a “privileged caste” and drawing attention to high-profile miscarriages of justice and instances of judges caught drink-driving, shoplifting, and starting bar fights.[32]

When the revised proposals were announced by President Duda in September 2017, they confirmed suspicions that they had been designed principally to reflect a reconfiguration of power between figures within the ruling camp, rather than to address substantive concerns over the assertion of control by the ruling party.

First, Duda’s proposals paved the way for PiS to assume control of the KRS by terminating the term of office of the existing members and giving the parliamentary majority the right to nominate a majority of their replacements.[33] This means that the parliamentary majority now enjoys unmediated power of appointment to the body that appoints all Polish judges.

Second, the Supreme Court legislation forced all Supreme Court justices over the age of 65 to retire, unless their terms are extended with presidential approval.[34] Combined with control of the KRS, this has given the government effective power of appointment to 40 percent of the Supreme Court.[35]

Third, Duda introduced a mechanism of “extraordinary appeal,” whereby during the next three years almost any legally binding final judgment dating back to the introduction of the constitution in 1997 can be reopened, and heard again by Supreme Court judges appointed by the ruling party via its control of the KRS. “Lay judges”—members of the public appointed for renewable four-year terms by the (PiS-majority) Senate—will also sit in on cases in the new Extraordinary Chamber, which will also consider disciplinary charges brought against Polish judges and cases concerning Polish elections. The inclusion of lay members at such high levels is extremely rare, serving as a demonstration of the ruling party’s intention to supplement formal legal justice with its own understanding of “social justice” in certain cases.[36]

Duda also granted himself considerable powers over the internal functioning of the Supreme Court, including not only the right to appoint the president of the court, but also the discretion to re-appoint the court president for a second term. As a result, Poland’s ruling party now not only holds the power to appoint Supreme Court judges, but also the power to appoint those who decide which Supreme Court judges (and which lay judges) hear which cases.[37] A detailed analysis by the Council of Europe’s Venice Commission arrived at the conclusion that “the two Draft Acts put the judiciary under direct control of the parliamentary majority and of the President of the Republic.”[38]

The government claims that it is motivated by a desire to purge the Polish judicial system of the influence of former communists.[39] But even allowing for the ruling party’s gross exaggeration of the presence and influence of former communist judges in the Polish judicial system(the average Polish judge is in their early 40s),[40] this does not explain why the government should enjoy the power to oversee the appointment, promotion, discipline and financial incentives of all Polish judges, indefinitely. Gallingly for the government’s critics, the reforms were steered through the parliament’s justice committee by PiS MP Stanislaw Piotrowicz, a decorated former communist prosecutor who helped prepare indictments against dissidents arrested during the imposition of Martial Law.

Both Acts were passed by the Polish parliament and signed into law by Duda in December 2017.

In March 2018, the terms of the 15 judicial members of the KRS were terminated, and the Sejm appointed their replacements. The appointment process was boycotted by the overwhelming majority of Polish judges—out of approximately 10,000 only 18 consented to stand as candidates, while the names of those who had nominated them have been kept secret.[41] The majority of appointees either had close links to the Ministry of Justice, or had been recently appointed by Minister Ziobro as court presidents shortly before (one of the appointees was the spouse of a recently appointed court president).[42] The appointees also included two judges with records of poor performance that would normally have excluded them from the office, including one who had faced over 50 disciplinary charges; the identities of those who nominated the new appointees have not been made public.[43]

The Ministry of Justice has also replaced 149 court presidents and vice presidents since amendments to the law on ordinary courts was passed in July 2017.[44] According to a recent report by the Warsaw-based Helsinki Foundation for Human Rights, “the process of appointing new presidents and vice presidents was conducted in a non-transparent way and based on irrelevant criteria,” including “through private friendships.” It argues that the amendments “do not address the most important problems of the justice system,” “will not improve court proceedings,” “broadened the opportunities for politicians to influence courts,” and “may violate the right to a fair trial.” [45]

With ruling party nominees in control of the KRS and set to take over the Supreme Court in July 2018, and the government protected by a tame Constitutional Tribunal, there will soon no longer exist an independent institution capable of checking how the government wields the power it has acquired. The destruction of the rule of law in Poland needs to be seen not as some worrying future prospect but a near fait accompli that the European Union, the international community, and above all, Polish society itself has failed to prevent.

If 2016 was spent taking control of the Constitutional Tribunal, and 2017 spent laying the foundations to take control of the KRS and the Supreme Court, in 2018 the challenge for Law and Justice has been to withstand pressure from the European authorities to reverse the reforms.

Although the Polish situation is frequently compared to that in Hungary, there is an important difference. In Hungary, a government with a constitutional majority is constructing an authoritarian order that may contravene democratic principles, but which is broadly within the parameters of Hungarian law. In Poland, a government without a constitutional majority has simply dismantled the existing constitutional order through a sustained attack on the law itself.

In December 2017, after two years of “dialogue” with the Polish authorities, the European Commission recommended the initiation of a sanctions procedure under Article 7 of the European treaties, arguing that the “common pattern” of over 13 laws adopted since 2015 is that “the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.”[46]

Up until now, Law and Justice’s strategy has been to humor the European Commission and fellow member states with expressions of willingness to engage in dialogue, or to make unconvincing offers of “compromise,” even as it establishes facts on the ground that will prove extremely difficult to reverse.

The Commission has made a series of demands, including the repeal of the laws described in this report, and asked the government to “restore the independence and legitimacy of the Constitutional Tribunal, by ensuring that its judges, President and Vice President are lawfully elected and by ensuring that all its judgements are published and fully implemented.”[47]

Unsurprisingly, the Polish government has done no such thing, instead publishing in February 2018 a 94-page “White Paper” defending its position.[48] Described in an official response by the Polish Supreme Court as “unreasonably and tendentiously argued,” and containing “distorted,” “untrue,” “unfounded,” “contradictory,” and “methodologically inconsistent” assertions,[49] the document was riddled with factual inaccuracies, misrepresentation of statistics, and spurious international comparisons, and rejected by the Commission as “not the answer to the Commission’s recommendations.”[50]

Instead, the government has floated so-called concessions that amount to little. For example, it has offered to consult the (new) KRS on the dismissal and appointment of court presidents. But since the KRS has already been filled with ruling party appointments, and 149 court presidents and vice presidents have already been replaced, such a move will not remedy the situation. Neither does an offer to “print” three disputed Constitutional Tribunal rulings, but only after passing a law declaring them to have no legal force. Additionally, a “concession” on the extraordinary appeal mechanism, proposed in the first week of May, will still allow the minister of justice/prosecutor general to reopen old cases with the new judges.[51]

It appears unlikely, however, that the Article 7 procedure will result in concrete action against the Polish government, given the reticence of a number of EU members, particularly in Central and Eastern Europe, to set a precedent by which an EU member is sanctioned by fellow member states for its internal judicial arrangements. More likely is that member states seen to be in breach of their rule of law commitments will be penalized in the upcoming EU budget process.[52]

How effective the prospect of a reduction in EU funds may be remains to be seen. In March this year, however, a development in Ireland raised the possibility that the situation could be taken out of the hands of the Commission and the Member States altogether, when Irish High Court judge Aileen Donnelly refused to extradite a suspected drugs trafficker to Poland on the grounds that changes to the Polish judicial system had been “so immense” that Ireland’s high court had been forced to conclude that the rule of law in Poland had been “systematically damaged,” undermining the “mutual trust” that underpins the European Arrest Warrant process.[53]

Justice Donnelly’s referral of the case to the European Court of Justice is especially important when seen in the context of a recent ruling by the ECJ concerning a pay dispute in Portugal that had ramifications for the independence of the Portuguese judiciary. In its ruling, the ECJ declared itself competent to evaluate the independence of national judges charged with applying and interpreting EU law, given their key role in upholding the EU’s system of legal protection.[54] Taken together, the rulings raise the prospect of dramatic consequences were the ECJ to rule that the Polish judicial system was in contravention of European standards.[55]

However things progress on either the political or the legal front, it is impossible to overstate the gravity of the present situation, and its potential consequences. The key point is that Poland’s present judicial arrangements are incompatible with the conditions of membership of the European Union. That situation might be manageable in the immediate term, but it is not sustainable indefinitely.

From the European perspective, Brussels is caught between the immediate risk of confrontation exacerbating existing political fissures across the continent, and the long-term risk of the European legal order disintegrating as more and more members, emboldened by Law and Justice’s example, see fit to violate the basic democratic standards and legal framework that holds the union together.

From the perspective of Law and Justice, it has succeeded in its leader’s central mission—to establish control of the Polish judiciary and release itself from the checks and balances that thwarted it in the past. Even if it wanted to retreat, the sheer breadth and depth of measures already taken in recent years means that only total capitulation and proactive measures to repeal legislation and reverse hundreds of decisions and appointments made over recent years could truly restore judicial independence and the rule of law. Given that the Polish authorities have not shown the slightest inclination to embark on such a process, the time may come when Polish citizens will be forced to choose whether their future still lies at the heart of Europe.