In 1748, Montesquieu published his monumental work On the Spirit of Things, in which he divides the government into three branches: legislative, executive, and judiciary. He shows that these branches, even though together they reflect the condition of the state and the way it is managed, must be separated. Otherwise, various threats may emerge – including the danger of being ruled by oppressors, or even tyrants.
Magdalena M. Baran: Montesquieu called it legislature – a branch responsible for making just decisions when faced with conflicts. This kind of power has been practically dismantled in Poland. Formally, there still are three separate branches of power. But once we take a closer look at the situation, it becomes clear that the relations between the respective branches are out of balance. What are the weak points? And when does the threat of tyranny become real?
Sylwia Gregorczyk-Abram: Let us start chronologically, with the Constitutional Tribunal. This is the first institution that was brutally infringed upon, dismantled, and stripped of its constitutional prerogatives. I am not surprised by this development, because the process of marginalizing constitutional courts and similar institutions has always been the first step towards destroying the rule of law – which was visible in Hungary.
I may honestly say that the Polish Constitutional Tribunal does not fulfill its key role. It should ensure that all legal acts are in line with the Constitution and rule on competence-related conflicts between various branches of power. In other words, the Tribunal shall make sure that all legal measures in Poland are compatible with the Constitution.
Meanwhile, in its current form, it is a mere tool in the hands of politicians. This was the first attempt to dismantle the separation of powers. It’s not a hoax made by those who dislike those who currently hold power in Poland, but the truth supported with plenty of evidence – this is simply not how the Constitutional Tribunal should work.
There are numerous reports (prepared, for instance, by the Stefan Batory Foundation), which in a great detail reveal how the composition of this body has been manipulated, supported with specific examples.
We now know that in case a court case was to lead to a specific decision, then the Tribunal’s composition was changed in such a manner so as to feature solely Deputy Judges who would always rule in favor of the ruling party.
This is already a strong and clear signal that people should no longer feel safe in their homeland. Knowing this, no citizen should feel safe. Not to mention the so-called rulings of the Constitutional Tribunal related to, for instance, National Council of the Judiciary, which was – in my opinion – a “commissioned” ruling. It was supposed to demonstrate that there is no danger, that the Council (which had been elected by politicians) respects the rule of law.
Meanwhile, the members of the National Council of the Judiciary had been elected in violation of the Constitution. And so, apart from the Constitutional Tribunal, this is yet another empty shell of an institution which can serve to achieve one’s political goals.
The take-over of the Council was accompanied by dismantling common judiciary, including substituting court personnel – for example, the so-called “unfaxing” of the court presidents.
Needless to say, a president of a court is responsible for something more than merely holding the keys to the building – but also for directing the court, being in charge of it. Which is why it is such an important position. This is exactly why the procedure is called “unfaxing” – it refers to dismissing court presidents via a fax notice, issued by the Minister of Justice, during their first six months in office.
And all of this is being done in order to be able to do “what he (the Minister of Justice) wants”, to put it in an informal manner, dismissing and appointing just anyone. What is the purpose? To have influence on how a given court operates.
And this was the second step. Next, an attack on the Supreme Court (because that’s what it was) was mounted, which we then managed to stop half-way with the help of the Court of Justice of the European Union (CJEU) and, as a result, stopped a complete overhaul of the existing judges in the Supreme Court.
Nevertheless, thanks to some other changes – i.e. increasing the number of judges in the Supreme Court and creating two new chambers, the newly appointed judges (whose election was scarred by the original sin), entered the Supreme Court after all. This original sin refers to them being elected by the National Council of Judiciary, which – as mentioned before – was brought about in violation of the Constitution, thus becoming a strictly political tool.
These connections may be observed on every level – if these powers are combined, we will always somehow lose those safety fuses. Coming back to Montesquieu, he stressed that there can be no relation between legislative and executive. Any connections would result in creating a dependence, subservience of one towards the other, which as a result destroys the state – to say the least. And that’s a problem, because in Poland this dependence has already been allowed for.
Yes, we are facing a real and formal dependence of the judiciary from the executive and legislative branches.
Precisely. This has been happening also with the judiciary – as was the case with combining the position of the Minister of Justice with that of Prosecutor General. The time has come when we may talk about the path towards tyranny, or authoritarianism, if we are to opt for a milder version, or tyranny of the minority. This minority thinks in a rather particular manner, and then uses this way of “thinking” to wield power. And it wields it, de facto, on its own, and thus poses a threat to all of us.
This “all of us” is the key element in our conversation. This is a narrative that we, as lawyers, try to convey constantly to the society – because it poses a great threat to every citizen. Each and every one of us could be faced with a situation I versus The State. For instance, in the case of expropriation.
It is not inconceivable to imagine a situation in which the judge presiding over your case, who would have been “faxed” by the Minister of Justice, would be either encouraged to rule in a particular manner, or that the created atmosphere would have already instilled in the judges the feeling that the fiscal interest of the State is more important that that of an individual citizen.
It is a situation that may be universal, applicable to all citizens. Our whole lives are controlled by the law – one cannot even be born or die officially without a dedicated document that is a proof that these events happened. The driving license, an apartment, or pension – all this is dependent on specific legal decisions. And what would happen if the state decides to question these rules, and no court would remain independent?
I think we pay too little attention to this phenomenon. Not only as citizens. I often talk with judges, and one may often hear from a district judge that “Listen, I am just sitting around in my little court, making rulings on some cases of minor importance, it’s my little playground. I am not involved in any side of the political spectrum, pretending that I have nothing to do with it”. But politics has a way of making its way into our lives anyway, even if we live in seclusion in a tiny house in the wilderness. Because at one point someone might decide to build a road next to our peaceful oasis and, for better or worse, the politics will catch up with us. It, therefore, seems to me that our whole society thinks that about courts as well, despite us having such a strong movement supporting their independence.
Yes, definitely. Because this is a narrative that should be available to the public opinion at all times, as the rhetoric employed by the ruling party is rather easy to understand. Every citizen had at one point been to court or knows someone who lost a court case and feels they have been treated unfairly. Simply put, they may feel that the judge’s verdict was unjust.
This is not surprising, as it plays on the lowest of emotions.
Yes, it’s easy, which is why it’s even easier to introduce a slogan “Let us introduce a new order” successfully.
Like the slogan “We’re giving the courts back to you”.
The so-called reform of the judiciary was supposed to bring the slogan “Courts Closer to People” to life, become the remedy for the imagined elites of the judges, which were said to be out of touch with reality. But, actually, this whole reform proved to be a fiction. Just as was the reported “rule of the minority”.
Freedom and security of citizens means also political freedom. And here, we come back to Montesquieu once again, as he wrote: “Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen”. What’s been happening on the streets, between the people, makes us cautious about one another. We start fearing other citizens. Don’t you think this is a result of this machinery?
The rule of the Law and Justice party has been built on a premise of constantly seeking new enemies and giving a signal for combat. Once, it was refugees. I am familiar with their perspective, I know how were they treated in Poland, because I have represented them on a number of occasions. It’s not an easy task to defend in Poland the people who seek in our country international protection, because they have no money, nor state support. It’s a tricky subject.
Another fabricated enemy is the LGBT+ community, which – according to PiS – poses a threat to Polish children, Polish families, and the Polish Church. These hot potatoes are thrown onto the society with the aim of unhinging it, making it uncertain, cautious, hateful, overall antagonized. And this it something that has been visible in Poland for the past four years. So yes, we start being afraid of one another.
And here, there’s another problem: Polish society is chiefly uneducated. Czesław Miłosz, a renowned Polish poet, accurately pointed it out in his posthumously published poem Flet szczurołapa (Pied Piper’s Flute). It’s a problem typical of the Polish education system after the year 1989. Rousseau once stated, and Miłosz recalled it, that before slaves can be liberated, they must first be educated, enlightened – otherwise, Pied Piper will come, play a tune, and they will follow him. He may play a tune straight out of the “our small stabilization’s” repertoire. A kind of stabilization based on going to the favorite cinema or siting in front of a TV with a can of beer. Alas, it is a sad realization, because “one or two generations will pass, and the youth discovers the shame unfamiliar to their fathers. Then, to voice their dissent, they shall seek examples in a long-forgotten anti-imperial rebellion”. And maybe the revolution they will bring about is to be an anti-everything in its character. Because they will no longer understand anything.
It’s a great comparison, but did you know that Czesław Miłosz is Frans Timmermans’ favorite author? I have been involved in defending independence of Polish judiciary for three years already, so for me the latter is also a very important figure. Whenever Timmermans talks about Poland, he very often refers to Miłosz. But let us come back to educating the Polish society.
As lawyers, we must do our homework. After the dismantling of the Constitutional Tribunal, I also considered education to be of utmost importance. So what did we do back then? As the Professor Zbigniew Hołda Association, we decided to visit schools and talk to the youth.
We launched a project called “Constitutional Week” (Tydzień Konstytucyjny) – this year, already the seventh edition of the project will be organized. Twice a year, thousands of lawyers conduct talks in schools to discuss with the students the Constitution.
An estimated 200,000 youngsters took part in all six editions of the project. It may not be a lot, but it also shows that a grass-roots initiative may create a mass action led by lawyers, if the will is strong enough.
And the kids may then bring that knowledge home.
Exactly! It’s a kind of a spill-over effect, in a way. It’s a project that was very popular among schools. It involves talking about the Constitution, what does it involve, why is it important to Janek or Marta who sit at the back of the classroom. It’s about explaining that it’s not just any abstract document, but a highly important one that impacts everyone’s life.
We always present cases which could happen to any student. It’s not about a lawyer in a suit who comes to the classroom and talks smart. The way we conduct such discussions focuses on real conversations and an actual interaction with the students.
Talking in a straight-forward manner and showing that these things should be important to them.
That’s what we are trying to do on a regular basis. It was a huge challenge for our Association, which, at the time, was rather small. But it was worth it, which shows that everyone can become actively involved.
If in every town a local lawyer conducted such discussions with the youth or local community in general, educating them, then the sheer scale of such an endeavor would be really large.
Yet, I get the feeling that this generation still lacks understanding of what it means to be a citizen, awareness of being a part of a larger community that doesn’t necessarily have to be so deeply divided.
And taking responsibility for others, especially the weak, the underprivileged, but also for the natural environment and everything that surrounds us. It’s the foundations of our very existence.
But what does it actually mean to be responsible nowadays?
Indeed… If you’re still asking me about the community, for me, it is about the sense of responsibility for the success of common matters and the willingness to act to ensure it. In this sense, responsibility creates engagement, energy, and enthusiasm – it gives a sense of having an impact on the world.
Understanding that “I am a building block the world is comprised of”?
I believe that this kind of thinking must be instilled in the youth so that it may bear fruit in a few years. We must raise such a society that would be able to think about something more than “my neighborhood grocery store” or “my own backyard”.
When I’m pondering over some the key ideas necessary for successful societies, responsibility always makes the shortlist, along with justice and solidarity. These three values should be taught and cultivated to avoid societal collapse. So that we may save democracy.
Solidarity among people is a key aspect of a modern society. It proves its maturity, understanding of, and openness to dealing with various issues. If we remain open to others, this means that we are brave enough and are compassionate to harm inflicted on other individuals.
Let me come back to the case of refugees. One of my clients, a women’s rights activist from Iran, could not comprehend why Poles do not want to take her in, whereas during World War II, Iran welcomed thousands of refugees from Poland.
Even Poles often do not understand it. I know people who were once refugees, who were in a camp in Italy to later emigrate to the United States. And these are the people who now vote for Law and Justice or Confederation, a nationalist party. When their grown-up daughter, now a respected lecturer, asks them “Don’t you see that in the past somebody helped us? We were refugees. Don’t you see that solidarity requires us to help others now?” And the response is based on a religious or racial argument. Such a narrative terrifies me.
We are not good hosts for the people who are fleeing wars, violence, and torture. And I’m not alone in saying that. Polish and international organizations dealing with refugees sound the alarm, because we do not comply with international standards and procedures.
One of the reasons for this negligence is the prevalent rhetoric according to which “foreigners will come and take away our national identity”. They will come and bring their world with them.
It is truly terrifying that this rhetoric of “others” keeps returning like a bad dream.
But it works, unfortunately. So let me come back to solidarity, because I think that we must learn how to be solidary not only with other people, but also with institutions.
Timoty Snyder in his On Tyranny wrote: “It is institutions that help us to preserve decency. They need our help as well. Do not speak of “our institutions” unless you make them yours by acting on their behalf. Institutions do not protect themselves. They fall one after the other unless each is defended from the beginning”. This is also true for Polish courts, the justice system. Meanwhile, a movement striving to protect them is being created – but it soon hits a wall.
It’s a wonderful quote, very meaningful to me too. The citizen should have trust in each and every institution, be it a public administration institution, a court in the smallest town there is, or the Supreme Court. The citizen must respect these institutions and should feel safe thanks to them. This is why we should defend them. By defending them, we defend our own rights and freedoms.
And so, we come back to political freedom that is just emerging…
It should emerge. Meanwhile, the separation of powers that for years has been rooted in Western democracies is being destroyed. It now turns out that the are groups who want to destroy it.
It seems we still aren’t aware that political freedom is our personal freedom. This is the time, this is a contemporary kind of freedom that Constant or Locke had in mind. It safeguards our freedom according to which we are not to be forced to anything, while at the same time allow us to enjoy other freedoms. In light of these remarks, what shall be done in order to rebuild trust in courts?
This is a question of utmost importance currently. Before answering, let me say one crucial thing. There still are a number of independent judges and lawyers who safeguard the separation of powers. There is also an army of citizens who voice their dissent to destroying the rule of law. We are strong and we act together.
Polish judges experience a range of repressions – from disciplinary procedures, to withholding promotion. They face a wave of hate. Again, it is not about me having an aversion to the Law and Justice party – the volume of repression towards judges, prosecutors, and most recently lawyers was reported by such NGOs as Justice Defence Committee. This is why it is crucial that all citizens showed solidarity with those who are still fighting for their political freedom and for being free to live according to their own values.
Being free to be yourself. As simple as that.
Yes, as it might turn out that we may not be able to be ourselves if the courts are not independent. You’ve asked me about rebuilding the trust in courts – it’s a task that has yet to be tackled. Truth be told, the lawyers’ community is getting ready to start this process.
I hope that the Court of Justice of the European Union will assist us in this mission. The Court’s spokesman declared that the recently created Supreme Court’s Disciplinary Chamber does not comply with the principle of independence, and ruled that the procedure of appointing members of the National Council of the Judiciary (KRS) does not ensure being independent from politicians.
In Europe we all have the same goal. Poland cannot simply pick and choose what it wishes to adopt (funding or any other benefits) while ignoring basic European values, that’s not an option. The rule of law is a common value for the EU and as such it should be championed irregardless of political differences, or particular state interests.
If a given state cannot secure independent courts, then this means that it does not follow, nor protects, the rule of law. And so a question arises: Should such a state be a member of the EU community?
Sadly, what has been recently happening in Poland in terms of how the judiciary operates is a mental Polexit. The ruling of the Court of Justice of the European Union will be a break-through in terms of rebuilding the rule of law in the country. It may give us some idea of what may happen next. The rest is up to us.
Let us hope that we may experience this process as soon as possible.
Indeed, the longer bad blood is circulating in the body, the sicker we get. The same applies to judiciary. The longer we allow politicians to control the courts, to appoint judges, pressure them, the more difficult healing the judiciary will get. This remedy shall be created as soon as possible in order to reverse the recent detrimental tendencies and stabilize the situation in Poland.
The article was originally published in Polish at: https://liberte.pl/gdy-zaczynamy-sie-siebie-bac-z-sylwia-gregorczyk-abram-rozmawia-magdalena-m-baran/
Translated by Olga Łabendowicz