Democracy Threatened: Judicial Independence Under Attack in Poland
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
– James Madison
In the years following the fall of the Soviet Union, Poland emerged as a nation poised to embrace and fulfill the promises of Western democracy. However, since coming into power in 2015, Poland’s Law and Justice Party (hereinafter LJP) has attempted to secure authoritarian power by radically reforming the nation’s judiciary. As a part of their attempted power-grab, the LJP first overhauled the nation’s Constitutional Tribunal, which ensures that rules of law do not violate the Constitution. Additionally, the Party took control of the National Council of the Judiciary, which is tasked with overseeing judicial appointments and safeguarding judicial independence in Poland. Since the takeover of the two delegating bodies, the Party has packed the panels with judges who are sympathetic to the LJP, giving politicians near complete control of the judiciary.
Most recently, the LJP has taken aim at the highest court in Poland as a part of their judicial takeover—the Supreme Court. In September of 2018, President Andrzej Duda signed into law judicial legislation lowering the mandated retirement age of Supreme Court justices from 70 to 65, thus forcing 27 of the 72 serving judges into retirement. Further, judges who wish to stay on the bench past the mandated age of retirement must seek approval from President Duda.
In response to growing public outcry and increased protesting, the LJP has justified the judicial overhaul as necessary to increase judicial efficiency and, ironically, force out judges held-over from the pre-1989 communist regime. Additionally, Party officials contend deep judicial changes are needed in order to restore justice and fairness to ordinary Poles who are currently victim to a corrupt system which thwarts the will of the people.
Critics of the LJP, however, are fearful the hostile judicial takeover is an attempt to dismantle the rule of law in Poland and threat to Polish democracy via abolishing judicial independence. Dariusz Zawistowaki, chief justice of the Supreme Court’s civil division, sees the judicial reform as “politiciz[ing]” the judiciary, and fears democratic standards developed since 1989 will be “gone.” Likewise, opponents to the Party contend the governing party is building a judicial system which will be “subservient” to the Party’s political rule.
If the LJP is able to stack and control the Supreme Court, some critics have urged the Party will be able to effectively govern Poland the way the old Communist Party governed the nation. Opponents fear the Party will rig national elections, punish outspoken political adversaries, and rule without concern for judicial ramifications. According to opposition lawmaker Kamila Gasiuk-Pihowicz, the LJP’s strategy involves wearing down the Polish people with legal abstracts, such as judicial independence, that the country is no longer resistant to the Party’s judicial reform.
Fortunately, as the legal battle over Poland’s judiciary is coming to a head, both the European Union and Poland’s Supreme Court are fighting back against the LJP. The Polish Supreme Court, under its president Malgorzata Gersdorf, made the decision to suspend administering President Duda’s judicial legislation law. Instead, the Court took the extraordinary step of appealing directly to the European Court of Justice, asking the Court to rule against the Party’s attempt to forcibly retire over 40% of current Supreme Court justices. Gersdorf insists the law is unconstitutional and refuses to comply with the judicial legislation. Consequently, the Court sent five questions to the European Court of Justice in an attempt to suspend the implementation of the law until the questions are answered by the higher Court.
However, President Duda rejected the Supreme Court’s ruling, saying the Court “acted improperly” and the Court’s decision “will have no consequences for the president or any other body.” Consequently, in October of 2018, Duda announced the Supreme Court had added 27 new judges to replace the judges forced to retire. The decision to appoint the new Supreme Court justices came in a secret ceremony as an attempt to circumvent European Union interference. The European Commission, an executive arm of the European Union, launched Article 7 against Poland, commanding President Duda to reverse the appointments and reinstate the previously serving judges, or the matter will be sent to the European Court of Justice for further review. The European Union alleges the LJP’s judicial reform violates Article 19 of the Treaty of the European Union, read in connection with Article 47 of the Charter of Fundamental Rights of the European Union. Read together, the European Union asserts retiring Supreme Court judges must leave the bench independently and the LJP’s judicial reform undermines judicial independence and the irremovability of judges.
On Friday, October 19, 2018, the European Court of Justice responded to the European Commission’s inquiry and issued an injunction stopping the new law. The European Union’s top court ordered Poland to freeze judicial appointments and reinstate the judges who were prematurely forced into retirement. Welcoming the ruling, Polish district judge Monika Frackowiak noted the fundamental importance of the ruling and hopes “it will somehow stop this process of demolishing the judiciary.” Likewise, a spokesperson for Amnesty International’s European Institution’s Office warned the European Court of Justice’s order “makes it clear that it is unacceptable for Poland to ignore the [European Union’s] most fundamental principles” and “[a]nything but immediate and full compliance . . . would clearly show . . . Polish authorities have complete disregard for the rule of law.” However, Duda’s cabinet chief announced “it’s impossible for law to work in reverse,” implying the LJP does not plan on complying with the recently issued injunction and the tension between the European Union and Poland will only continue to escalate.
As the European Union struggles to deal with nationalist, populist, and anti-immigration movements arising under its jurisdiction, intervention against the threat against democracy in Poland has never been more crucial. As countries in the region, such as Hungary, have recently turned to autocracy, adhering to the democratic standard of judicial independence and irremovibility of judges is critical to instilling public faith in the judiciary and further promoting Poland’s quest towards a complete democracy. If Poland’s judiciary falls under the control of the Law and Justice Party, the ripple effect felt through former Soviet Union nations could give way to governing in the manner of the Communist Party throughout Central Europe. Furthermore, the democratic standards developed in Poland since 1989 may be undone and upon the Law and Justice Party’s seizure of legislative, executive, and judiciary, the words of James Madison will once more ring true and Poland’s authoritative governing party “may justly be pronounced the very definition of tyranny.”
 The Federalist No. 47 (James Madison)
 Marc Santora, Poland Purges Supreme Court, and Protesters Take to Streets, New York Times (July 3, 2018), https://www.nytimes.com/2018/07/03/world/europe/poland-supreme-court-protest.html.
 President ‘waits calmly’ for top EU judges decision on Polish Supreme Court, Radio Poland (May 5, 2018), http://www.thenews.pl/1/10/Artykul/385851,President-waits-calmly-for-top-EU-judges-decision-on-Polish-Supreme-Court.
 Griff Witte, Poland’s judges boycott Supreme Court posts, accusing the government of a takeover bid, The Washington Post (Aug. 17, 2018), https://www.washingtonpost.com/world/europe/polands-judges-boycott-supreme-court-posts-accusing-the-government-of-a-takeover-bid/2018/08/17/8a9a5590-943a-11e8-818b-e9b7348cd87d_story.html?noredirect=on&utm_term=.3cc5e20fc18b.
 Jan Cienski, Polish Supreme Court turns to ECJ for help, Politico (Aug. 2, 2018), https://www.politico.eu/article/polish-supreme-court-turns-to-ecj-for-help-older-judges-retirement-eu-rule/.
 Brussels opens new case against Poland over Supreme Court reforms, Radio Poland (Feb. 7, 2018), http://www.thenews.pl/1/10/Artykul/370998,Brussels-opens-new-case-against-Poland-over-Supreme-Court-reforms.
 Manny Marotta, Poland adds 27 Supreme Court justices, defying EU, Jurist (Oct. 12, 2018), https://www.jurist.org/news/2018/10/poland-adds-27-supreme-court-justices-defying-eu/.
 European Commission Press Release IP/18/5830, Rule of Law: European Commission refers Poland to the European Court of Justice to protect the independence of the Polish Supreme Court (Sept. 24 2018).
 John Stone, European Court of Justice orders Poland to stop purging its supreme court judges, The Independent (Oct. 19, 2018), https://www.independent.co.uk/news/world/europe/poland-supreme-court-judges-eu-european-court-judge-ecj-a8592136.html.
 Vanessa Romo, Top EU Court Blocks Polish Supreme Court Law Forcing Judges to Retire, NPR (Oct. 20, 2018), https://www.npr.org/2018/10/20/659016900/eus-top-court-blocks-poland-s-supreme-court-law-forcing-judges-into-retirement.
 See supra note 1.