For a number of years now, Rule of Law Education has been following with interest and reporting on the situation in Poland.
Historical Governance of Poland
By way of background, Poland is a representative democracy. It has a President as the head of state, who is elected by popular vote every 5 years and a bicameral parliament consisting of a lower house (“Sejm”) and an upper house (“Senat”). However, it hasn’t always been this way.
At the end of World War II, Poland fell under the influence of the Soviet Union and was forced to adopt communism as its political system and a satellite government, strongly dependant on Moscow. Between 1944 and 1989, Poland was subject to Communist Rule. On 4 June 1989 in the first free, multiparty elections since World War II which signalled the collapse of the communist regimes of Central and Eastern Europe and the end of the Cold War, Poland finally freed itself from communist dictatorship. Long oppressed citizens embraced the seismic political, economic and cultural shift and together with other Central and Eastern European countries, Poland joined the European Union. Tadeusz Mazowiecki was the first non-Communist Polish Prime Minister to be appointed since 1946, putting an end to the Polish People’s Republic. Between 1989 and 1991, Poland engaged in a democratic transition which led to the formation of a democratic government, known as the Third Polish Republic.
Why is Poland’s political history relevant?
Fast forwarding to today, the European Union presupposes all of its Member States are constitutional democracies based on the rule of law and respect for human rights. The European Commission states:
The rule of law is one of the fundamental values of the Union, enshrined in Article 2 of the Treaty on European Union. It is also a prerequisite for the protection of all the other fundamental values of the Union, including for fundamental rights and democracy. Respect for the rule of law is essential for the very functioning of the EU: for the effective application of EU law, for the proper functioning of the internal market, for maintaining an investment-friendly environment and for mutual trust. The core of the rule of law is effective judicial protection, which requires the independence, quality and efficiency of national justice systems.
The principle of the rule of law has been brought under the microscope in Poland for some years now, due to the country’s perceived attempts to want to determine its own outcomes whilst remaining within the European Union leading to criticism from both the European Parliament and the European Commission. These reported attempts to determine its own outcomes have been witnessed in areas such as the functioning of Poland’s legislative and electoral system, the independence of its judiciary and the degree of protection of the fundamental rights of its citizens- all seen as erosions of key protections from the rule of law.
Summary of Challenges to the rule of law in Poland
In October 2015, Poland’s Law and Justice Party won an absolute majority of seats in its lower house of parliament (“Sejm”) and in doing so, ensured its appointment to both the presidency and the upper house (“Senat”). The government then proceeded to make a number of controversial changes to the authority of the courts, including:
- Appointing judicial offers to the Constitutional tribunal in breach of its rules of appointment;
- Refusing to adhere to or publish judgments of the Tribunal which declared these appointments unconstitutional;
- Lowering the retirement age of judges in the Supreme Court from 70 to 65.
See Rule of Law’s analysis of Poland’s controversial changes during this period at: https://www.ruleoflaw.org.au/changes-in-poland/
The changes made by Poland’s Law and Justice Party to the system of appointment, promotion and disciplining of judges and prosecutors attracted the ire of many, not just in Poland, but in the European community more broadly.
The European Commission is the EU’s politically independent executive arm. It not only drafts proposals for new European legislation, it is also responsible for implementing the decisions of the European Parliament and the Council of the EU. Its role includes overseeing member countries and ensuring there is no systemic threat to the rule of law. In the event that a systemic threat is found to exist, the European Commission may make recommendations to the member country about how to resolve the issue. Where necessary, it will also monitor the response and follow up the member country to the Commission’s recommendations.
Following the 2015 events and unsuccessful steps by the European Commission to obtain what they considered an appropriate response from Poland, in September 2018, the European Commission referred Poland to the Court of Justice of the EU.
In early 2020, Poland’s President signed what some have referred to as a “muzzle law”, which resulted in judges who criticise the government’s judicial reforms to be disciplined or fired. Some judges reportedly postponed hearings because of uncertainty surrounding whether they had authority to make rulings.
In May 2020, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs raised concerns in relation to a number of areas in their Draft Interim Report, including:
- the exercise of government power since 2015,
- recent enacted changes to Poland’s judiciary,
- the perceived undermining of fundamental rights, particularly freedom of expression,
- the de facto criminalisation of sexual education, hate speech, public discrimination, violence against women, domestic violence and other areas.
Article 7 of the Treaty on European Union is a procedure that can suspend certain rights from a member state. TEU Article 7 states the European Union can make a determination if there has been a clear risk of a serious breach by a member state of EU values. Such a determination could eventually lead to sanctions being taken against a member state, including suspension of voting rights in the European Council. In light of the concerns raised, calls could theoretically be made to the European Council and the European Commission, asking them to refrain from narrowly interpreting the principle of the rule of law, and to use the procedure under Article 7 to its full potential, on that basis that Poland is potentially in breach of the Treaty on European Union.
It will be interesting to see how these developments unfold. Certainly, concerns continue to centre around whether Poland has or is at real risk of violating the fundamental principle of judicial independence which is enshrined in the Treaty on European Union and the Charter of Fundamental Rights of the EU.
Most recently, the Polish government reportedly encroached on the space of the judiciary to such an extent that Attorneys Sylwia Gregorczyk-Abram and Michal Wawrykiewicz brought their concerns to the attention of the Court of Justice of the European Union, alleging the independence of the judiciary is being “dismantled”. In their speech to the Court dated 22 September 2020, they observed:
“this is not only a Polish matter. This is a matter for all of us Europeans…[and] the actions we are currently witnessing in Poland will …cause irreversible changes in the Union’s legal system, and the de facto collapse of the rule of law throughout Europe”
These serious concerns about the independence and impartiality of the judges and courts in Poland remain live issues and draw our attention and focus back to the ideal of separation of powers and the very essence of that principle, which is to ensure the independence of the judiciary from other branches of government. We believe EU member states and all parliamentary groups, both in Europe and internationally, should support the European Commission in its attempts to protect the rule of law in Poland and bring to an end the undermining of judicial independence. Democracy and the rule of law guarantee fundamental freedoms in any society. The rule of law lies at the heart of democracy and the two are inextricably connected. We will continue to monitor developments in Poland as they unfold.
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