One of the key topics in the public debate in Poland in the last two years was the rule of law. It has also become an important issue in the foreign media and institutions, including the European Union. On December 20, 2017, the European Commission declared that “[d]espite repeated efforts, for almost two years, to engage the Polish authorities in a constructive dialogue in the context of the Rule of Law Framework, the Commission has today concluded that there is a clear risk of a serious breach of the rule of law in Poland.”1
Whatever one might think about the Commission’s decision, there was a series of legal acts, created and supported by the ruling Law and Justice (PiS) party, detrimental to the rule of law.
The Commission’s remark may be compared to a thermometer indicating a fever. Thermometers show a symptom of a sickness and should not be ignored, but they cannot cure the sickness. This is why, in Poland, the European Union should not be expected to automatically terminate bad policies of one of its members, but rather treat the EU activities as a stimulus for a greater mobilization of the Polish civil society.2
Law and Justice vs. the Rule of Law
What are the examples of these bad policies? First, in the years 2015-16, the ruling PiS party took political control over the Constitutional Tribunal, converting it into a rubber-stumping body for PiS legislation3. Second, the law on the Ordinary Courts Organization empowered the Minister of Justice (who is at the same time the Prosecutor General, a deputy, and a political party leader) to dismiss heads of courts in an arbitrary way and appoint their successors without binding consultation with the National Council of the Judiciary. Third, the new law on the Supreme Court lowered the retirement age, as a result of which some judges (including the president of the court) will be automatically replaced.4
The government also introduced an extraordinary appeals procedure that gives it the power to re-open final judgments taken many years ago, undermining the certainty of the law. Finally, the new law on the National Council of the Judiciary enables the ruling party to control the composition of an institution, which was designed to protect courts and judges from politicians. The new National Council of the Judiciary is to be soon formed by the ruling PiS parliamentary majority while almost all opposition parties are boycotting this process, which they deem as unconstitutional.5
All these legal changes, analyzed in detail (for example by the Venice Commission), infringe upon the independence of the judiciary and significantly weaken the rule of law in Poland. The presented article briefly discusses why the rule of law is important for freedom and prosperity and how it is conceptualized in some of the popular indices. The overview presents measurement of the rule of law in Poland and connects it with the PiS policies. Finally, the article explains the real problems with the rule of law in Poland that are not addressed by the ruling party (which is worsening the situation).
The main argument is therefore that after PiS party won elections, many weaknesses of the rule of law in Poland, as indicated by various indices, were not necessarily connected with the justice system and judiciary. Moreover, when the justice system was indeed not working as well as it should have been, the PiS policies did not respond to any real problems and therefore cannot be regarded as justice system reforms dedicated to strengthen the rule of law in Poland.
Why Does the Rule of Law Matter?
The rule of law is an “essential guardian of freedom,” as emphasized by Fred McMahon, from the Fraser Institute, in the Foreword to the most recent edition of the Human Freedom Index.6 The rule of law is also an important element of a sound democracy, in which political rights and civil liberties are respected and the powers of the government are constrained i.e. there is a limited government. As F.A. Hayek pointed out, “[t]he Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation either directly aimed at particular people, or at enabling anybody to use the coercive power of the state for the purpose of such discrimination.”7
Read full article: MAREK TATAŁA _FREEDOM-LOVING PEOPLE SHOULD DEFEND THE RULE OF LAW IN POLAND
1 European Commission (2017) Rule of Law: European Commission Acts to Defend Judicial Independence in Poland (Press Release), December 20. Available [online]: http://europa.eu/rapid/press-release_IP-17-5367_en.htm
2See also Tatała, M. (2018) “The EU Invokes Article 7 Against Poland, But Only Poles Can Defend Their Liberty”, [in:] acton.org. Available [online]: https://acton.org/publications/transatlantic/2018/01/05/eu-invokes-article-7-against-poland-only-poles-can-defend
33See: Helsinki Foundation for Human Rights, “The Constitutional Crisis In Poland 2015 – 2016”. Available [online]: http://www.hfhr.pl/wp-content/uploads/2016/09/HFHR_The-constitutional-crisis-in-Poland-2015-2016.pdf
4 See: Venice Commission’s reports about Poland. Available [online], especially “Opinion on the Draft Act amending the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts, adopted by the Commission at its 113th Plenary Session (Venice, 8-9 December 2017)”. Available [online]: http://www.venice.coe.int/webforms/documents/?country=23&year=all
6Vásquez, I. and T. Porčnik (2017) The Human Freedom Index 2017, Cato Institute, the Fraser Institute, and the Friedrich Naumann Foundation for Freedom, p. 3.
7Hayek, F. A. (1944) The Road to Serfdom. Abingdon: Routledge, p. 87.