Commissioner for Human Rights

“Plowing up” the courts

Sebastian Kaleta, former press spokesman for the Ministry of Justice and currently a member of the Verification Commission for Property Restitution, posted the formulation on Twitter that the Constitution permits “plowing up” of the courts. These words have inspired me to explain to citizens what this “plowing up” will consist of.

Contrary to appearances, adoption of the proposed acts relating to the administration of justice – the Act on the National Council of the Judiciary, the Act on the System of Common Courts and the recently proposed Act on the Supreme Court – will not serve to comprehensively reform the judicial system. Their purpose is clear: to subordinate the courts to political power. This explains the surprise moves, the rapid pace of proceedings and the complete lack of willingness to engage in discussion.

After the three acts go into effect, nothing will be able to happen in court that could threaten politicians of the ruling party on the local or central level, lead to expenditures exceeding the planned budget, cause significant problems to state-owned companies, or clash with the ruling majority’s ideological line. But subordinating the judiciary is also a good tool for disciplining the parliamentary opposition, independent mayors, NGO activists or defiant online commentators. These acts could also come in handy for disciplining the ruling party’s own members. Finally, courts influence the composition of district electoral commissions and the National Electoral Commission, and the Supreme Court decides the validity of elections. Although that may seem abstract today (just as deconstructing the Constitutional Tribunal seemed two years ago), we can already envision the Supreme Court – after reading the draft Act on the Supreme Court – being packed with former National Prosecutors who would declare the next parliamentary elections to be invalid.

The work performed by the courts in every democratic system is based on their independence from the executive and legislative branches of government. This is the essence of democracy. Special powers are entrusted to the judiciary – resolving disputes between opposing parties (in various kinds of matters), and finding whether someone is guilty of a crime (misdemeanor) or not. Moreover, the judiciary supervises prosecutor’s offices and the security services. They resolve disputes between citizens and the government, and can award damages to citizens if the government is found guilty of harming them in some way.

Every day, week and month, courts resolves tens, hundreds, thousands of cases. We don’t even know about many of them. When, following an efficiently conducted trial, a verdict is announced which millions of citizens have been waiting for (as in the trial of “Madzia’s mother”), we accept it as something obvious.

When ruling on cases, judges must be guided solely by the law – i.e. statutes and the Constitution. In order to work this way, judges must be independent. Neither politicians, nor local power brokers, nor large corporations can dictate to them what they are supposed to do, what rulings they are to make, how they are to behave. Judges must be free from such influences. They must be able to make rulings that the government may not like. Therefore, they must be appointed in a way that guarantees their full independence.

This does not, however, mean that judges’ job performance is not subject to substantive evaluation. It is rare that we hear anything about judicial disciplinary proceedings, but they take place, and they have painful and long-lasting consequences for judges who make mistakes. Reviews by appellate courts – one of our civil rights – also serve to check for and eliminate mistakes.

The independence of the judiciary is essentially a delicate and complex web of detailed rules that guarantee the security of judges when they make rulings. A judge cannot be transferred to another court against his/her will, cannot be deprived of his/her judgeship (unless it’s the result of disciplinary proceedings, which happens sometimes), cannot be penalized by having his/her salary reduced, and cannot have cases upon which he/she is working taken away. There are many more such rules. These rules of judicial independence are shaped over many years in democratic countries. They are treated with great care. The best example is the United States, where independence of the judiciary is considered to be as sacrosanct as freedom of speech.

We have arduously worked on these rules in Poland since 1989. Successive parliamentary acts, and finally the Constitution of 1997 strengthened the principle of judicial independence and entrusted the task of guarding this value to a special authority – the National Council of the Judiciary (KRS). Unfortunately, the changes in the three proposed bills go in a completely different direction.

The KRS, whose 15 members are currently appointed by judges themselves, will continue to exist. The problem lies in that, under the new act, its members will be appointed by the parliamentary majority. Thus, politicians will choose the new 15 members of the KRS. They won’t even wait for the current members to complete their terms of office. This may seem to be a mere technical change, but it has fundamental significance. It’s the KRS that presents a list of candidates for judges to the President. So it will have the right to vet all candidates seeking to become judges. Will the KRS, with its new members chosen by the ruling party, refuse to appoint the justice minister’s loyal prosecutors to judgeships? Will the President then refuse these nominations?

The second proposed act, on the system of common courts, will permit the replacement of all court presidents. Currently, they are appointed by the Minister of Justice, though in consultation with the judges working in the given district. Under the new act, the Minister of Justice can dismiss all of them and appoint those he trusts as a politician. He does not have to make sure his candidates enjoy broad support, does not have to consult his decisions with anyone. He can also choose new court presidents who are currently judges working in the Ministry of Justice (150 judges are there on so-called delegation). A court president’s powers include not only oversight of public tenders, opening new buildings and representing the court in external contacts. This person also has great influence on what happens in the given court, the power to decide about the careers of individual judges, to reassign them to different departments, to appoint people to functional positions and to set judges’ duty schedules. It’s easy to imagine a situation in which a prosecutor wants to put someone under arrest, and the case goes to the judge who is on duty at the moment and can be trusted not to cause much trouble.

The third proposed act, the Act on the Supreme Court, will lead to the mass replacement of Supreme Court members. The Minister of Justice will have the right to determine which of them may remain on the Court, and which will be retired (removed from active duty). Once again, some citizens may look upon this as another fight between elites – thus, something that does not concern them.

But let’s imagine, for instance, that these citizens have taken out loans denominated in a foreign currency. Will the government help them? It has already clearly said that it won’t, that these citizens should seek redress in the courts. So will the courts help them? There’s a chance. More and more rulings have been issued stating that banks have violated consumer rights in such matters. Perhaps in the near future, thanks to various court rulings backed by the Supreme Court, this problem can be corrected. But if politicians can exert excessive influence on the courts, it probably won’t. Why would politicians allow courts to harm the interests of banks since a significant share of the banking sector currently belongs to the state?

I realize that courts do not always work efficiently and reliably. Not all their rulings deserve to be defended at all costs. Not all the procedures work ideally. Sometimes they communicate poorly with citizens. Evidence for such problems, after all, are the cases in which the Commissioner for Human Rights files cassation appeals, or in which the Commissioner becomes engaged on the side of citizens, providing additional legal arguments.

But we have not been building the entire legal and judicial system for 27 years only to blow up the foundations on which it rests. If a builder comes and sees a house with creaking floors, dirty walls and drafty windows, he undertakes a normal renovation according to best practices – he doesn’t plant explosives underneath the foundations and joyfully watch the ensuing explosion. There is a strong desire in the legal milieu to conduct honest, solid reforms that serve the public interest. But the Ministry of Justice does not want to talk about them. First it wants to subordinate the courts to itself.

Independence of the judiciary is a value for all of us, not only for legal professionals. It’s the most important mechanism protecting our rights and freedoms from their violation by the government. Defending an independent judiciary is not defending elites – it’s defending the democratic rule of law, thus ordinary people. In the democratic world, no one has invented anything better than the tripartite separation of government powers, which includes the independence of the judiciary from the executive branch. So let’s not allow the courts to be “plowed up”, because if we do, we will deprive ourselves of the only safeguard protecting us from injustice, mistakes and abuses perpetrated by the government.

Adam Bodnar

Commissioner for Human Rights