The article was first published in the Washington Examiner, January 2, 2018 in response to the PM Mateusz Morawiecki’s article: Prime Minister Mateusz Morawiecki: Why my government is reforming Poland’s judiciary

About the authors

Michał Wawrykiewicz, Paulina Kieszkowska-Knapik, Maria Ejchart-Dubois, Sylwia Gregorczyk-Abram are Polish lawyers, founders of the Free Courts initiative, involved in the Committee to Defend Democracy KOS.

According to Morawiecki, the resulting condemnation by the European Union and other Western liberal states is all due to a “widespread misunderstanding.” The rest of the world just doesn’t seem to get, the prime minister contended, that the current government’s goal is to “reform Poland’s deeply flawed judicial structure” by freeing the Polish judiciary from its Communist past.

According to the prime minister, in 1989 Poland’s then-ruling Communists forced Solidarity, the democratic opposition that gained power, to keep the Communist-era judges in the courts. Another problem, he claimed, is that the National Judiciary Council, which nominated all judges, is dominated by a clique of appellate judges who independently select all judges and their successors. As a result, he says, nepotism and corruption abound.

Nothing could be further from the truth. In 1990, the entire Supreme Court was dissolved, with only about 20 percent of the Communist-era judges (all judges from the criminal chamber) allowed to keep their posts. Those who judged political cases in line with the Communist regime were expelled from the Supreme Court.

Most of the remaining judges from the Communist era have long ago retired, such that the average age of judges in Poland today is about 40 years old. And the National Judiciary Council, in conformity with the Polish Constitution, is an independent body free of political influence.

Morawiecki’s real objection is not that the Polish judiciary is Communist, but that it is independent. To get rid of its independence, nearly 40 percent of current Supreme Court judges will now be forced to retire, having reached the new mandatory retirement age of 65. The president of the Supreme Court will be immediately removed from office, even though her constitutional term of six years has not yet expired.

This “reform” is simply a pretext to establish a Supreme Court favorable to the prime minister’s political party, known as the PiS — a court whose power, by the way, includes the final say in the validity of national elections.

The independence of the National Judiciary Council, the body currently in charge of judicial appointments, will soon be emasculated thanks to these new laws. The terms of office of existing members of the Judicial Council will be terminated in violation of the Constitution. New members will now be elected by the majority of parliament, giving the PiS-led legislature to right to appoint replacement members. No longer will judges be choosing their representatives in this council, but politicians.

Already, our Constitutional Tribunal has been made more PiS-friendly. Within a month of taking power in 2015, the new PiS-controlled Sejm (lower house of the parliament) refused to recognize the election of the judges made by the previous parliament. In another neat trick lacking constitutional validity, the government also stopped publishing decisions issued by the Constitutional Tribunal that it disagreed with, thereby preventing these ruling from taking effect. The Venice Commission, a body that monitors the rule of law in Europe, found this unilateral move by the PiS government to be a direct attack on the rule of law.

The adoption of these three new judiciary laws signals the beginning of the end of democracy and rule of law in Poland. Our judiciary will gradually succumb to control by the executive and legislative branches, to a degree that not only is unacceptable under the Polish Constitution, but which also puts our country outside the mainstream of modern democratic countries.

Poles agree that Polish courts need improvement and reform. The current judicial system is too formalistic, slow to issue judgments, understaffed, and needs more IT solutions. But none of the changes adopted by ruling majority will make our courts more efficient and just. Rather, our courts will become politicized.

Such intention also transpires from the way and atmosphere in which these laws were adopted – quickly, with no reflection, no public or expert consultation, and during late-night parliamentary sessions.

The United States has always been Poland’s strongest friend. President Woodrow Wilson at the end of World War I supported the re-establishment of the Second Polish Republic in 1918. President Ronald Reagan helped free us from our dark Communist past. President Barack Obama came to Warsaw to celebrate 25 years of Poland’s liberation from communism. In July 2017, President Trump affirmed our special relationship by visiting Poland before going to Britain, France or Germany.

We would like the American people to know that what is happening in Poland is in breach of the Polish Constitution against the will of many, many the majority of Poles who in their majority feel linked with the Western world and its values.