Poland – In Poland, the PiS wants a thorough reform of the judicial system inherited from Communism, by Olivier Bault.
In the conflict between the Polish Constitutional Tribunal, supported by the Supreme Court, the liberal opposition and the European Commission, the Conservative government and its parliamentary majority gained at the elections of October 2015, the past and the political affiliations of judges is an important aspect that escapes the notice of the international media which were interested in this topic. Globally, justice in Poland has never been reformed and de-communised after the democratic transition of 1989-90.
The Law and Justice Party (PiS) of Jarosław Kaczyński therefore expected strong resistance even before coming to power, but this does not prevented it to announce a thorough reform of justice and promise to end impunity for corrupt or incompetent judges and prosecutors. But to realize its campaign promises, the PiS had first to prevent the blocking of the parliament by the Constitutional Court organized by the outgoing PO-PSL coalition with the support of the President of the Constitutional Court and some judges. Let us remember that this conflict which brings the current Polish government to be threatened by the European Commission of a sanctions procedure originates from a law passed by the previous majority and endorsed by the outgoing President Bronisław Komorowski (he lost while facing the candidate of PiS Andrzej Duda at the May 2015 elections) for the sole purpose of allowing the outgoing parliament to appoint in October 2015, two weeks before the elections which were announced to be very bad for the majority of that time, five judges who would normally be appointed by the parliament chosen after the vote on October 25. Indeed, the mandates of the replaced judges were ending, respectively, in November and December 2015. If President Duda wouldn’t have refused to endorse these appointments because of their obvious unconstitutionality, the Liberal opposition would have fourteen judges today appointed by itself on the fifteen that accounts the constitutional Court.
Besides the fact that these shenanigans have been overlooked by the international media which pounced on the PiS when it canceled those five nominations, there were attempts to make people believe in a sudden politicization by the PiS of an institution until then apolitical. By the way, the foreign media seem to ignore that today nine judges on fifteen that accounts the Constitutional Court were appointed by the previous majority. And among those nine judges, some profiles highlighted by the weekly Gazeta Polska conservative are particularly interesting.
First of all, the Tribunal President Andrzej Rzepliński, whose term will end in December 2016. Professor Andrzej Rzepliński, who finished his law studies in the same class as Jarosław Kaczyński, unlike the latter, started a career as a member of the Polish Communist party (PZPR) until 1981 before joining the opposition trade union Solidarity. In 2005 he was Liberal candidate of PO (Civic Platform, Donald Tusk’s party that ruled from 2007 to 2015) for the post of Defender of Rights. A few years later, he took the defense of the judge Igor Tuleya who, in a controversial judgment against an anti-corruption operation conducted at the time of the coalition government led by PiS (2005-2007), had qualified the methods of the anti-corruption office (CBA) of being “methods of the 40s and 50s, the deepest Stalin era.” A quite excessive comparison from a judge raised in a communist family whose mother had worked in the militia and the political police (SB). In 2014, Rzepliński signed with others a statement condemning Jarosław Kaczyński for his questioning of judicial reaction to the multiple irregularities in regional and municipal elections that year. During the dispute over the Constitutional Court, Andrzej Rzepliński was seen, and even filmed with the smartphone of a member of the PiS, in discussion with the PO and PSL members of the Diet. The President of the Constitutional Court Andrzej Rzepliński also has the bad habit to say in the media his negative opinions of laws passed by the PiS before the hearings during which the Constitutional Court must rule on the constitutionality of these laws. It’s still a bit embarrassing for a judge supposed to be apolitical, independent and impartial.
Another jewel of the tribunal, appointed by the PO, is the judge Sławomira Wronkowska-Jaśkiewicz, which was in the 80s, under the Communist dictatorship, a member of the Legislative Council of the President of Council of Ministers. She is also co-author of several books published in the 70s and 80s where she defended the socialist law of the time, established “in a manner consistent with the interests of workers.”
Another “apolitical” judge of the court, Stanisław Rymar, him too a PO candidate appointed to the Constitutional Court in 2010, is a friend and collaborator of Roman Giertych, former leader of the League of Polish Families (LPR) who ruled with PiS in 2005-2007 but which then rallied body and soul to PO. Rymar got into the public eye for his involvement in a lucrative real estate deal that would have resulted, according to the Rzeczpospolita newspaper, of some irregularities. Rymar was never convicted for it but he has not sued the newspaper for defamation.
Leon Kieres, also a judge proposed by the PO to the Constitutional Court (in 2012), is a former senator of the PO. This did not stop him to say in December 2015 that “the Constitutional Court and its judges have not been, are not and will not be engaged in political disputes.”
And so on…
Of course, Poland is not different in this matter than any other European country, like for example France, where François Hollande recently appointed the Socialist Laurent Fabius to the presidency of the Constitutional Council. Some countries do not even have a constitutional court, as the Netherlands which Frans Timmermans is originating from. He is Vice-President of the European Commission responsible for Better Regulation, Inter-Institutional Relations, Rule of Law and Charter of Fundamental Rights, who now takes the defense of the Polish constitutional court. All this on the behalf of a very thorough interpretation of a Charter of Fundamental Rights which, when it was integrated into the Lisbon Treaty, should apply only to the European institutions and their actions. Let us also note that the Constitutional Court based in Warsaw was established in 1982, in the state of siege imposed by the communist dictatorship. That really says it all about how much this court is a guarantor of respect for democratic rules!
But in Poland, there is also the Supreme Court whose judges have given their support on April 26 to the Constitutional Court. If the Constitutional Court should in theory rule only on the constitutionality of laws passed by parliament, the Supreme Court supervises the judiciary, examines appeals for elections and serves as Court of Cassation. In 2009, an investigation was opened against some of the judges of the Supreme Court in a corruption case: favorable judgments have been proposed against remuneration. If the case was closed in 2012 and 2015, it was based on the ground that the evidence presented by the Anti-Corruption Bureau (CBA) had been obtained by violating the law. Moreover, several current judges of the Polish Supreme Court playing the role of defender of democracy and of the rule of law began their careers under communist rule and did sentenced political opponents of that time.
Lower in the hierarchy of the judiciary, the communist legacy still weighs heavily, and we saw with the Amber Gold case how the presiding judge of Gdańsk, for example, was at the orders of Prime Minister Donald Tusk.
The justice reform, which has never been achieved since the fall of communism, therefore promises to be the most daunting task for the PiS, but it is clear to the Polish conservative right that it is the sine qua non condition for a deep consolidation and a thorough process of democratization in Poland. The first adopted reform was to give back to the Minister of Justice the role of Attorney General. Regarding the Constitutional Court, the PiS will probably not succeed in anything if it fails to gain a constitutional majority, and thus agree somehow with a part of the opposition. But for sure this is where the PiS should concentrate its efforts, not only because “the fish rots from the head”, but the Constitutional Court, in its current form, will probably block the legislative initiatives of the PiS for political reasons and will effectively be a “third chamber” of the Parliament. A chamber dominated by the Liberal opposition for several years to come.
Translated from French by the Visegrád Post.