On Nov. 11 in Warsaw, an estimated 60,000 people marched in an annual Independence Day celebration. The subsequent global media furor underlined the dilemma facing modern Poland and the need for Poland’s leadership to speak clearly and forthrightly to our country’s allies and friends. A regular event since 2010, for almost all participants the march was peaceful, joyous, and non-political. Nevertheless, a small group of anti-Semitic and racist extremists – unseen by most present – skillfully captured the attention of international journalists and photographers.
The Polish political tradition is built not on ethnic or sectarian identity but a shared culture that reveres human freedom. But by unfurling hateful banners and reciting repugnant slogans, this group branded the event their own throughout the world.
Senior officials and the head of the ruling party immediately denounced those anti-liberal elements and their role in the day. But for a country as precariously placed as Poland, such misimpressions can undermine national security and sovereignty.
This past year has provided a master class in that lesson. All year, we have struggled with the widespread misunderstanding of our plans to reform Poland’s deeply flawed judicial structure. In mid-November, less than a week after the march, the European Parliament took first never-before-invoked steps to sanction the country, citing those charges. It is time for us to explain ourselves better, because our cause is just.
No democratic nation can long accept having any branch of government independent of checks, balances, and public accountability. That is the judiciary’s status in today’s Poland. And this very peculiar flaw of governance, its origins, and its consequences have been rarely discussed or understood in Europe and America.
In the 1989 Roundtable Talks between Poland’s Communists and the democratic opposition, then-president General Wojciech Jaruzelski – the man who ran Poland’s martial law government for the Soviets – was allowed to nominate an entirely new bench of Communist-era judges to staff the post-communist courts. These judges dominated our judiciary for the next quarter century. Some remain in place.
To this day, an elite council of 25, dominated by 15 judges on the appellate level or above, nominates all judges including their own successors. No trial judge or elected official participates. The president may accept or reject the nominees. The system lends itself to nepotism and corruption.
For example, in 2012, during a government-wide salary freeze, in the midst of an economic crisis and austerity, a group of judges sued the government in each others’ courts, alleging breaches of their employment agreements, so that they could award each other damages.
In 2016, a judge moonlighting as a loan shark could not be prosecuted because his fellow judges took so long deliberating his judicial immunity that the statute of limitations ran out and he returned to the bench unpunished.
And after a highly respected professor of law and dean of his university was turned down for a judgeship last year, this year the appointment went to the less-well-qualified son of a judge currently in office.
Then, too, judges are assigned to cases by their close peers with no public oversight. Favors go to friends. Vengeance is wreaked on rivals. Bribes are demanded in some of the most lucrative-looking cases. Proceedings have sometimes been dragged out interminably in the service of wealthy and influential defendants. Justice has too often not been available to those lacking political connections and large bank accounts. As much as on any other issue, the government was elected – and elected decisively – to overhaul this deeply flawed system.
Our reform package includes requiring that cases be randomly assigned, thereby ending the practice of judges case-shopping; setting time limits for the resolution of cases and requiring judges to complete, not pass along, the cases they start, so that plaintiffs receive timely access to relief; and compelling judges publicly to disclose their personal finances, as a safeguard against bribery and corruption.
Parliament and the government are currently debating the most appropriate way to appoint and discipline judges. Most feel that voting on judicial nominees should not be restricted to a small caste of senior jurists but opened to all judges around the country. Tenure will remain for life or until retirement, but the European Union’s mandatory retirement age for all employees of all governments may be applied to our judiciary. Establishing a disciplinary chamber of judges, lawyers and prosecutors is on the table, with some advocating participation by lay juries. We also intend to end perverse incentives that allow some judges to make significant incomes for little work.
Far from radical, these and similar reforms that Poland is currently weighing are normal practice throughout Western democracies. Far from being dictatorial or compromising judicial independence, as some charge, they will introduce precisely the kinds of checks and balances that all liberal-minded people cherish in their own democracies.
We are convinced that the changes we are considering will not only contribute to rebuilding the confidence of our citizens in the judicial system, but also give investors certainty that any court disputes are resolved in a fair and timely manner.
Poland’s democracy is strong. With reforms to ensure that our citizens have access to impartial, prompt, efficient and incorruptible justice, it will become stronger.
Mateusz Morawiecki is Poland’s prime minister.
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