The Warsaw Network
Why Poland longs for judicial reform?

In fact, it may be in the process of deepening and strengthening. Democratization in semi-peripheral societies is fraught with risk. Disturbing the status quo more often than not leads to a conflict between elites and people. A conflict which in absence of a strong economy that allows soothing of tensions, and the absence of strong institutions, that contain conflict, instead of democratization often brings instability, and at times authoritarian government.

However, it is a risk we must undertake if we wish for a modern, democratic and prosperous Poland. For our institutions, including the judiciary are structured along premodern lines, and now hold us back from modernity and a fully fledged democracy.

Power that is not accountable is the very definition of tyranny. Yet, this is exactly how our judiciary is structured. Judges recruit judges into the judiciary. Judges elevate judges to higher positions in the judiciary. Judges are supposed to hold other judges accountable for their misdeeds.  Unfortunately, they have been slow to react to cases of corruption both grand and petty among judges. True, grand and overt corruption among the judges seems to be waning and is now thankfully rare. Judges have, by now realized that permitting corruption in their ranks reflects on all of them. Notorious fraudsters such as the bankruptcy judge Czajka, who would issue judgments transferring asset that would benefit him and his associates, and was never punished, now seem to get weeded out. However, a whiff of impropriety and corruption remains to this day even among the highest judges of the land. The Supreme Court for years now has refused to fulfil freedom of information requests that would disclose contracts granting one company a monopoly to publish its judgments, and has refused similar requests for disclosure of expenses on credit cards issued at tax payer expense to the judges of the court. Even worse, nothing was done about a Supreme Court judge advising a friend on how to write requests to the Supreme Court in an upcoming case.

You may have been told that democracy in Poland is under threat. I agree. Though in my opinion, it is under threat from a judiciary that refuses to come clean. Some of my compatriots disagree. They think that things are best left as they were, because they distrust the politicians of the current government. I distrust all politicians, but believe we need an honest and efficient judiciary, and need to move forward with reforming the judiciary, lest the perceived corruption and efficiency lead to a yet stronger outbreak of anti-elitist populism.

A judiciary that has autonomy from both other branches of government and the people is a throwback to both the premodern and the more recent communist past. For much of recorded history civil peace and justice were created by a narrow self recruited elite, that regulated itself according to an internal code of honour. As long as the elite wasn’t too self serving it was a good deal for society. Aristocracy after all gave us a modicum of civility throughout the ages. However, since the enlightenment, the idea that power must be held accountable, by the people is gaining currency. In fact, it is a growing belief that the capacity of society and state to act, grows with the degree to which power is held accountable, and is a prerequisite for modernization. When people are confident that they officials are answerable to them, they will grant public authorities more capacity to act. Poland is unlikely to progress unless our institutions including the judiciary are further subject to checks and balances that make citizens the ultimate arbiter of right and wrong.

Under communism, or to be more precise, after the Stalinist phase of communism, the judiciary, give or take a few judges loyal to the party, that were assigned the political cases that the party had an interest in, pretty much ran itself. This too was a good deal for society. Creating spheres of relative autonomy based on the intelligentsia’s code of decency served us well, because it somewhat constrained the tyranny of the communist party. Yet today a judiciary that is unaccountable to the people is a disservice both to Poland and to democracy.

We have no impeachment procedures for judges, no equivalent of the US Judicial Conduct and Disability Act. Our judges and the parties aligned with the elites of the country tell us that politicians absolutely must not have any role in judicial nominations and oversight. Woe and betide the Americans, for whom their president picks the candidates for the federal judiciary and the senate advises and consents (or not) to these nominations. Two centuries of authoritarian America? Well, as you and I know, not exactly. The numerous checks and balances in the American system of government do a respectable job of keeping the spectre of abuse of power and tyranny at bay. You will be right to point out that Poland has neither a comparable system of separation of powers, nor a comparable set checks and balances, to hold the power hungry from lording over and abusing society. So yes, the task of instilling both judicial independence and accountability is harder in Poland, than the comparable task of maintaining the balance between independence and accountability in Western Europe or the Angloamerican world.

But proceed we must. Just as people in societies with longer history of democracy would not quietly put up, with a self-serving and self-appointed elite, the people of Poland increasingly yearn for an efficient, honest and accountable judiciary. There is room for disagreement among reasonable people as to how best to achieve this goal. But keeping things as they were is not an option. Our progress, both economic, and in modernizing our institutions is slowing. We in Poland, will either work out, by trial and error, how to rejuvenate it, or we will fail, drift from semi-periphery, to periphery.

The task of modernizing our judiciary, if it will be accomplished, will be accomplished via the political process. It will be neither pretty nor dignified. Politics never is. It will be a partisan clash of ambitions and interest, which if we are lucky, will leave us with a more accountable, honest, and independent judiciary. Those disposed against introducing more accountability for the judges, or simply scared of change and wed to the suboptimal status quo, are crying wolf, or rather are crying authoritarianism. Sorry, but cancelling the subscriptions of opposition newspapers by government bodies is hardly the abrogation of freedom of media that we’ve heard about from the opposition, and hear parroted by Western media & politicians. Petty and vindictive? Yes! Authoritarian? Judge yourself.  The current government has nominated its loyalists to key positions in state owned media. Just as every other Polish government has done over the last three decades. As for the judiciary, the supposedly right-wing and authoritarian president just announced that he will veto two of the three bills passed by his party, that were supposed to reform the judiciary, but gave too much power over the judiciary to the executive. Trial and error in action. Government for the people and by the people is always an unfinished task, with plenty of opportunity for error. Looks like we’ve just managed to avoid one serious error.

Keep cheering for democracy in Poland, but if you do care about our democracy, don’t cry authoritarianism, just yet. For your call may not be heeded when it may be necessary.

By: Paweł Dobrowolski