Polish democracy defends itself against EU-supported judges

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By Olivier Bault.

Poland – Parliamentary democracy in Poland defends itself against EU-supported judicial activism. As was to be expected, only two months after Poland’s parliamentary elections, which gave the United Right coalition led by the Law and Justice (PiS) social-conservative party a new majority in the Sejm, the opposition retook to the streets on December 18 to defend the independence of the judiciary against a bill proposed by PiS which protesters claimed would mark the beginning of the end of democracy. In the week preceding Christmas, Věra Jourová, the Vice President of the European Commission for Values and Transparency, sent a letter to the Polish authorities to ask them to suspend parliamentary proceedings over the bill being protested by the opposition.

It is back to square one for the leftist and liberal opposition, with a strategy based on taking to the streets and calling for intervention from abroad (Brussels). The lower house of the Polish Parliament nonetheless approved the new bill on December 20. The opposition will be able to reject it in the Senate in January, but the Sejm will have the final say. If it becomes law, this bill will provide for harsher sanctions (fines, transfers or suspensions) against judges who exceed their powers by questioning the legitimacy of the National Judicial Council (KRS) as reformed by PiS and of the newly created Disciplinary Chamber within the Supreme Court. Judges will also have to declare their present and past links with political parties and associations, as well as the pseudonyms they use on social networks.

The Supreme Court’s First President, judge Małgorzata Gesdorf, who since 2017 has been actively resisting the reforms of the judiciary passed by Parliament, publicly asked her fellow judges sitting in the Disciplinary Chamber to suspend all sentencing. The chairman of the Iustitia judges’ association announced for his part that he would not appear in front of the Disciplinary Chamber, in spite of having been summoned for his political activism (judges are forbidden to engage in politics). Even worse, some low-ranking judges sitting in local courts now claim to have the right to question sentences delivered by other judges whose appointment was proposed to the President of Poland by the reformed KRS, because they consider those appointments not to have been made in a valid manner, the reformed KRS lacking the necessary legitimacy in their eyes.

These are the kind of behaviours that will be subject to harsher sanctions if the bill approved by the Sejm eventually becomes law. Contrary to what has been said in some opposition and foreign media, the bill is not about punishing judges who criticise the judicial reforms brought about by PiS, but those who question the legitimacy of other judges and of judicial bodies reformed or created after 2015 without being entitled to do so.

This is happening now in Poland, after a decision taken on December 5 by three judges of the Labour and Social Insurance Chamber of the Supreme Court. These three judges, who are among the 120 active judges sitting in the Polish Supreme Court, ruled that the reformed National Judicial Council and the new Disciplinary Chamber do not fulfil the condition of an independent and impartial tribunal referred to in general terms in the European treaties, and that, since European law has priority over national law, those two bodies cannot be considered as valid bodies within the framework of the Polish judicial system.

Those three judges, sitting in one of the chambers of the Polish Supreme Court, based their decision on a November 19 judgement by the Court of Justice of the European Union following questions referred by the same Labour and Social Insurance Chamber of the Polish Supreme Court. To put the record straight, those questions were referred to the CJEU in August 2018 with the clear purpose of forcing the CJEU to take a stance regarding the legitimacy of the Polish National Judicial Council and Disciplinary Chamber, even though under the European treaties the organisation of the judiciary is normally a sovereign matter for each member state. However, in its judgement delivered on November 19 the CJEU stated that it is for the referring court, and in the present case for the Labour and Social Insurance Chamber of the Supreme Court, “to ascertain whether or not the KRS [and hence the Disciplinary Chamber as well] offers sufficient guarantees of independence in relation to the legislature and the executive”. According to Polish law, only the Constitutional Court has such power, and in March 2019 the Polish Constitutional Court ruled that the way KRS members are now appointed is consistent with the Polish constitution.

What is happening today in Poland is a typical example of the current evolution of Western parliamentary democracies towards government by unelected judges, and of the way such evolution is encouraged in Europe by EU institutions. Thus, three unelected, unknown judges out of 120 sitting in a top court of a member state are, in the eyes of the Court of Justice of the European Union, entitled to decide that judicial bodies, as reformed or created by laws passed by an elected parliament and validated by that member state’s constitutional court, are not legitimate in the light of certain principles mentioned in very general terms in the European treaties. Is this really how representative democracy should work?