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European solidarity – added value for the Polish judiciary independence

Bartosz Rydlinski
Co-founder of Ignacy Daszynski Center, collaborator of Aleksander Kwasniewski’s Foundation “Amicus Europae”

On Saturday, January 11th, we witnessed a March of a Thousand Robes’ in Warsaw. It was an unprecedented event because nobody remembers such a manifestation of legal circles in recent Polish history. Thousands of judges, attorneys, solicitors and prosecutors have taken part in a silent protest against the ongoing illiberal reform of the judiciary system, which the Law and Justice (PiS) government has consistently implemented for its second term of office, regardless of the street protests and the European Union’s warnings. It is also noteworthy that the Polish judicial community has been supported by judges from all over Europe, who also marched through the streets of Warsaw demonstrating their solidarity.

The current conflict between the judiciary and the executive power in Poland is another consequence of the illiberal changes in the Polish legal system made by Jarosław Kaczyński’s party continuously since gaining power in 2015. While the initial conflict around the election of Constitutional Tribunal judges was a result of the incorrect election of five instead of three judges of this chamber by the coalition of the Civic Platform (PO) and the Polish Peasant Party (PSL) with the support of the Democratic Left Alliance (SLD), each subsequent reform had the characteristics of constitutional uncertainty as well as of disrespect for the treaty provisions and values of the European Union.

The Polish judicial community is protesting against the so-called “Muzzle Act” – also known as the “Oppression Act” –  as they are enormously afraid about reforms which will undermine the legitimacy of the election of judges, by a new distribution of the new National Council of the Judiciary, which is recently highly politically dependent. In addition to drastically broadening the disciplinary responsibility of judges and prosecutors, the Minister of Justice, Zbigniew Ziobro, has also announced plans to change the structure of courts in a further step, which will provide an opportunity for ministerial verification of judges and the removal of disobedient judges from the profession. Therefore, the protest of Polish and European judges and the clear position of the Vice President of the European Commission, Věra Jourová, is not too much, and it even shows great political imagination.

“Defending the sacred democratic principle of the separation of powers, which is what the Left does, is different from showing its own reform proposal is”

In one of her latest books No is not enough, written just after Donald Trump was elected President of the United States, Naomi Klein pointed out that simply denying right-wing populism is not enough for progressive circles to have a positive message, a vision of the future, a strategy of action. The same applies to Polish Social Democracy, which should tackle the political crisis around the justice system that has been going on for half a decade. Defending the sacred democratic principle of the separation of powers, which is what the Left does, is different from showing its own reform proposal is. It is above all about their own proposals to heal the often pathological situation in courts in Poland: from the lengthy court proceedings, through the arrogance of the judges, their impunity, the huge financial costs of court cases, which often cannot be afforded by citizens, especially the less well-paid, who are an extremely loyal group of Jarosław Kaczyński’s party voters.

Without preparing its own political response to this challenge, the Left will not only fail to save the judiciary from the supremacy of the executive but will also fail to fulfil its role of representing disadvantaged groups in society. The promise of efficient courts, free legal advice at a high level, transparency of trials and a developed form of control of the judiciary has therefore an existential dimension for the young Polish democracy.

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