Moment that mattered: Poland’s president vetoes sweeping judicial reforms

On 16th July 2017 thousands of people gathered on the streets of Poland to protest against the government’s plans to radically reform the country’s judiciary, which had been voted through parliament a day earlier. The protests only came to an end on 24th July when president Andrzej Duda bowed to public pressure and vetoed two of the three reform bills.

“The main idea of the reforms was to lessen the independence of the judiciary in Poland,” says Włodzimierz Wróbel, a supreme court judge and a law professor at Jagiellonian University in Kraków. “The biggest surprise to me was how quickly this was all done. [The reforms] were an immense legislative procedure. What is apparent to me is that the most important thing for the ministry of justice and the ruling party is to get as much power as possible.”

Under the first of the reforms sought by Poland’s ruling right-wing Law and Justice party, all supreme court judges would be removed unless approved by the justice minister. The second reform would give politicians control of the makeup of the National Council of the Judiciary, the body which nominates supreme court judges. A third reform, which Duda did not veto, will give the justice minister the power to hire and fire judges in local courts.

“If it were not for [Duda’s veto] all the supreme court judges would have been removed, including me,” says Wróbel. The veto came as a surprise to many in Poland since Duda had been the Law and Justice party’s own presidential candidate and had voted with the government so consistently that he had faced accusations of being a puppet of Jarosław Kaczynski, the ruling party’s leader.

Wróbel has no doubt that people power on the streets influenced the president’s decision to veto two-thirds of the reforms, and believes that pressure from Brussels was likely to have had an impact too. On 19th July, the first vice-president of the European Commission (EC), Frans Timmermans, accused the Polish government of trying to abolish the independence of the Polish judiciary and threatened to trigger the EU’s article seven procedure for the first time, which would suspend Poland’s voting rights in the council of ministers. On 26th July, Timmermans said the EC would sue Poland for breaking rules on judicial independence.

If it were not for Duda’s veto all the supreme court judges would have been removed, including me”

The populist Law and Justice party has sought to justify its proposed reforms by claiming that they are necessary to make the justice system more effective. It has suggested that judges are an out-of-touch, elitist and unaccountable clique.

Perhaps unsurprisingly, Wróbel doesn’t buy this argument. “Of course things could be better,” he says. “But we don’t have a great crisis in our judicial system. Our biggest problem is communicating [the role of judges and the justice system] to the public. We followed the idea that the judiciary was an isolated island, that judges shouldn’t take part in the media and in public debates. This is a very old-fashioned approach in the era of social media and it costs us social authority, and without that authority we don’t have influence. If we are not being heard then nobody will support us.”

After Duda’s veto, the president and his former allies in the ruling party entered lengthy negotiations. On 25th September Duda presented his counter-proposals to the vetoed reforms. On the first reform he proposed that supreme court judges should retire at 65 (unless given permission to stay on by the president) and for the second he declared that while politicians should have the power to elect judges to the National Council of the Judiciary, nominations should require a three-fifths majority in parliament to pass, which would force the ruling party to receive support from opposition MPs.

He also proposed a constitutional amendment that would give the president the final say on the election of judges, which he withdrew hours later following criticism from both the ruling party and the largest opposition party, the Civic Platform. The EU has expressed concerns that while Duda’s counter-proposals would somewhat soften the original reforms, they would still represent a significant blow to judicial independence. On 10th November it was announced that Duda and the Law and Justice party leadership had reached a preliminary agreement.

During this extended negotiating period, legal experts and rights groups continued to express concerns about the direction the country was moving in. In October, Human Rights Watch claimed that Poland was experiencing “authoritarian slide” under a government which, it claims, seeks to “eliminate checks on its authority”. As a supreme court judge, Wróbel says he is reluctant to make what could be construed as partisan political comments, but he does say that he worries that the passing of judicial reforms could mark “the crossing of a red line that is very hard to come back from”.

Despite facing widespread criticism, the ruling party are flying high in the polls. They won the October 2015 general election by a landslide and have since increased their popularity; they are as much as 20 to 25 points ahead of the Civic Platform party in polls.

Our democracy is a young one and we have to build it slowly and step by step”

“The protests may have had an impact on populist politicians [such as Duda],” says Wróbel, “but it hasn’t had a great influence on the political preferences of our society. The Law and Justice party’s popularity hasn’t been dented by this crisis.” A May 2017 poll showed that 63 percent of Poles believed judicial reform was necessary.

Wróbel suggests that the governing party has been able to successfully exploit many Poles’ misgivings or misunderstandings about the slow and at times frustrating reality of democracy and the rule of law. “During the 50 years of communism, whatever you might say about an authoritarian system, you couldn’t complain about [policymaking being slowed by] bureaucracy,” Wróbel says. “Our democracy is a young one and we have to build it slowly and step by step, and we have to connect the acceptance of the rule of law with the understanding that sometimes democracy is less efficient [than autocratic or authoritarian rule].”

The crisis of the past few months has left proponents of judicial independence worried. “I am pessimistic,” says Wróbel. “We need to get society to accept the idea of the rule of law and the independence of the judiciary. If that doesn’t happen I can’t imagine this getting better soon.”

In the months after this piece was published, President Andrzej Duda and Law and Justice party leader Jarosław Kaczyński negotiated an agreement on the government’s judicial reform proposals. On 3rd July 2018 a new law came into effect in Poland, forcing the resignation of 40 percent of current supreme court judges due to the lowering of the mandatory retirement age, while judges aged under 65 will now require presidential assent to remain in their roles. The governing Law and Justice party will nominate judges to replace those forced to retire and has announced plans to expand the supreme court to 120 judges, which would mean its own appointees could fill up to two-thirds of the institution’s seats. On 4th July 2018 the head of the supreme court, Małgorzata Gersdorf, turned up to work in spite of her forced retirement and told supporters she was committed to defending the rule of law. Meanwhile, tens of thousands of protesters took to the streets of Polish cities. 

Posted on Thursday, July 5th, 2018 - Categories: #28 - Jul-Sep 2017, From the archive, Moments that mattered.