Civil Development Forum (FOR) presents the fourth report on the crisis of the rule of law in Poland. This part deals with the restoration of the rule of law, reversal of Law and Justice’s policies and reforms of the justice system that are needed in the future.
The detrimental changes that have been implemented in Poland’s justice system since late 2015, collectively referred to as ‘the rule of law crisis’, are well identified and documented both domestically and internationally.
The set of deliberate actions which the ruling Law and Justice party has taken resulted in the gradual takeover of judicial institutions, including the Constitutional Tribunal (2016), the National Council of the Judiciary (2018), and more recently, a large part of the Supreme Court (2019–2020).
Taken together, these legal changes and practices undermine judicial independence, an essential component of the rule of law intended to safeguard other core principles, such as separation of powers, equality before the law, fair trial, legal certainty, and preventing the arbitrariness of the executive.
Such violations of the rule of law cannot be tolerated in a democratic society. On the one hand, they create a major risk to human rights and democracy, resulting in a gradual erosion of the rights and freedoms of individuals and their ability to legally prevent the establishment of a de facto one-party state.
On the other hand, respect for the rule of law is a precondition for any of the genuine institutional reform, particularly in the judiciary, which is so expected by Polish society. For this reason, it is essential to contain the crisis immediately as soon as favourable conditions arise.
However, it will not be an easy task to restore the rule of law, either legally or practically. Merely repealing all the legal changes introduced deliberately to undermine the rule of law will not be sufficient, as it may unintentionally create further risks to that principle.
Moreover, the institutions already captured by the ruling majority may react to attempts to undermine their status, for example, by declaring new laws unconstitutional or creating more and more undesirable case law.
It would be also problematic to rewrite the constitution and establish new institutions from scratch, since that requires a qualified majority of two-thirds of the votes in the lower house of the parliament (Sejm) and the approval of the upper chamber (the Senate); in some cases, a referendum must also be held to approve any constitutional amendments.
Furthermore, it would also seem contrary to the rule of law not to guarantee sufficient judicial protection and an opportunity to challenge new rules for the individuals who benefited from the crisis, such as appointees nominated to courts by the current National Council of the Judiciary.
Apart from procedural issues, time also plays a crucial role when it comes to restoring the rule of law. This is because the longer the captured institutions operate and contaminate the legal system from within, the more convenient it will be to leave these changes as they are for the sake of legal certainty.
Trying to invalidate hundreds of irregular judicial nominations (and their rulings) years after they took place could be detrimental to individuals looking for the legal protection of their interests, while unaware of the fact that their cases had been dealt with by dubiously constituted courts.
It is, therefore, essential that the restoration of the rule of law follows certain principles in order to avoid any reasonable doubts as to the real purpose of this process. Among other things, these include:
- legality: any measure intended to overcome the crisis must be in line with the constitution and Poland’s international commitments, including obligations stemming from EU law and the ECHR;
- respect for fundamental rights: it is not permitted to treat the restoration of the rule of law as a means to retaliate against the ruling majority and those who benefited from the crisis; they must be given the opportunity to challenge the measures that affect them before independent courts;
- proportionality: each step taken to overcome the crisis must be limited to what is necessary to achieve the objectives of the whole process; as a result, the content and form of the action must be in keeping with the aim pursued;
- no return to the status quo ante: restoring the rule of law does not mean merely returning to previous laws and practices; institutions require constant improvement, especially as the deficiencies in the organisation and functioning of the justice system were clearly identified well before the crisis;
- social approval: unless the citizens understand the seriousness of the crisis and its impact on their rights and freedoms and democracy, it will be difficult to obtain their approval for the plan; it is therefore essential to consult plans not only with key stakeholders, but also with other groups involved, and to tweak them as needed.
Polish civil society organisations and the opposition have prepared several plans to contain the crisis. They concern the National Council of the Judiciary in its current composition and its nominating activity, and the situation in the Supreme Court and Constitutional Tribunal, among other matters.
However, due to constant changes in the state of play, it is not easy to keep up with them and recommend correctly tailored actions. Moreover, some of them do not entirely fulfil the principles mentioned above, and must be amended so they can be treated as useful proposals to restore the rule of law.
The main aim of this report is to assess those plans from the point of view of how to successfully restore the rule of law. To do this, we firstly set out criteria to identify the breaches and apply them to the laws and practices that have been implemented since late 2015.
Then, we present the plans and check whether they meet the said principles and provide a solid basis to resolve the crisis. Restoring the rule of law will be a complex process, which will have to be associated with the reform of the justice system.
In the second part of this report, we discuss some of the national and international measures which demonstrate that the performance of the judiciary has been deteriorating since the ‘reforms’ made by the Law and Justice party. We also indicate key areas where reforms are needed in the future.
This report concludes the series about the rule of law crisis in Poland published by the Civil Development Forum (FOR) in 2020. In the first part we presented the detrimental changes in the justice system pursued by the ruling majority since late 2015 from a domestic and comparative perspective. Part 2 was devoted to international and European responses to the on-going crisis.
In Part 3 we described how the COVID-19 pandemic negatively affected the situation and posed new risks to the rule of law.
This and other reports, as well as the Rule of Law in Poland project, are based on our belief that the rule of law in Poland and other EU member states is important not only for the citizens of these countries, but also for the future of the European project as a club of countries with high-quality democratic institutions safeguarding human rights.
The publication is supported by the Friedrich Naumann Foundation for Freedom. The Friedrich Naumann Foundation for Freedom is not responsible for the content of this publication, or for any use that may be made of it. The views expressed herein are those of the author(s) alone. These views do not necessarily reflect those of the Friedrich Naumann Foundation for Freedom