A democratic society - with a government that is accountable to its citizens - depends on judges and lawyers who are completely independent of the state. This separation of powers is a cornerstone of democracy and an essential foundation of political, social and economic stability.
Reforms that threaten the independence of the Polish judiciary have been creeping in since October 2015. The government has interfered in appointments to the Constitutional Tribunal, which exists to make sure that legislation complies with the Polish constitution. The government has gone even further, refusing to comply with or publish the tribunal’s decisions on a number of occasions.
Last week further reforms passed through the Polish parliament that almost completely politicise appointments to the Polish Supreme Court.
A programme to do this had been vetoed by the Polish President Andrezej Duda in July 2017. But now the president himself proposed the legislation and it is supported by the ruling Law and Justice party, which has a stable majority in both chambers of the parliament. I do not know what pressure or incitement has led to this change of position, but it has led to the legislation being passed.
Some 40% of the existing Supreme Court judges - including the president of the court – will be immediately removed by reducing the retirement age of sitting judges from 70 to 65.
The new laws also aim to enable parliament to select 15 of the 25-strong National Judiciary Council - which nominates ordinary judges, a function previously undertaken only by other judges. Nine of the members of the Council are already political appointees, so there will be only one member chosen by a judicial body, the Supreme Administrative Court. The new legislation will also empower the president and the justice minister to appoint a new disciplinary chamber with powers to sanction judges.
Degradation and isolation of the judiciary has been accompanied by rhetoric in the media and public life labelling judges enemies of the people and the state, and as corrupt and unaccountable.
The UN Special Rapporteur on the independence of judges and lawyers, Diego Garcia-Sayan, visited Poland last October. He was highly critical of reforms already instigated and implored 'all political forces' to engage in a constructive dialogue to restore the authority of the Constitutional Tribunal. In his view 'any long-lasting solution to the constitutional situation that Poland is facing today should be firmly rooted on the principles of the independence of the judiciary and the separation of powers'.
By ploughing ahead with these reforms, Poland risks losing its vote within the European Union, a sanction never previously invoked against any member state. In December the EU threatened to implement Article 7 of the Treaty of Rome against Poland – which could lead to Poland losing its voting power in the EU - if a constructive dialogue was not achieved within three months. The rebuke has been met with an even more extreme legislative programme to further dilute the independence of Poland’s highest court. The president of Poland’s National Council of the Judiciary, a body established to oversee judicial impartiality, has resigned.
We should all be opposing this repressive legislation. Poland’s direction is towards becoming an authoritarian state, with scant regard for the separation of powers or the independence of the judiciary or the legal profession. Turkey and Hungary are moving in a similar direction. The UN, EU and Council of Europe mechanisms for protecting fundamental democratic freedoms and upholding the rule of law are being ignored or side-lined.
Lawyers across Europe have a duty to make their voices heard and support their colleagues and judges in Poland whose independence is under threat at this very moment.
Tony Fisher is senior partner at Fisher Jones Greenwood LLP and chair of the Human Rights Committee of the Law Society of England and Wales.
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