Who's Right in the Battle Over Polish Courts

The ruling populists have some valid points, but they are too eager to control the country's judiciary.

Mass protests.

Photographer: Janek Skarzynski/AFP/Getty Images

The Polish ruling party's relentless fight for control of the courts is evidence that a properly functioning judiciary is the toughest element of democracy to get right.

On Sunday, tens of thousands assembled in front of court buildings, starting with the Supreme Court in Warsaw, in support of judiciary independence and against a court reform the governing Law and Justice Party (PiS) is pushing through parliament. For the opposition, the reform means that Poland "will cease not only to be a liberal democracy but a democracy at all." The judicial community is dead set against the PiS proposals, and the European Commission is already at odds with the government over its treatment of Poland's Constitutional Tribunal. But the case isn't clear-cut, and it raises the question of how a country with a history of deep-rooted corruption can obtain a competent, independent judiciary.

In Poland, judges are selected for presidential approval by the National Council of the Judiciary, which mostly consists of respected jurists. Last week, the PiS-dominated parliament voted to dissolve the council and give itself the power to appoint its members. The ruling party also introduced a bill that would terminate the tenures of Supreme Court judges and allow the justice minister to decide which members of the top court would be allowed to keep their seats. Combined, the two measures would give PiS and Justice Minister Zbigniew Ziobro -- a controversial law-and-order champion with a penchant for showy investigations and arrests -- almost full control of the Polish judiciary. It looks bad, and Amnesty International has condemned the PiS legislative onslaught as an attempt to end judiciary independence in Poland.

PiS can't be accused of inconsistency. The last time it was in government, after the 2005 election, it attempted to push through similar reforms and was also criticized. The party's argument, then and now, is that the judges have turned into an entrenched caste, an elite in need of a shake-up. In an interview with the news portal Onet, Jaroslaw Kaczynski, the PiS leader, who holds no official government post, called the courts "one of the strongholds of post-Communism." He pointed out that the National Council of the Judiciary was set up in 1989 by the last parliament elected under the Communist system, and argued that it perpetuated the legacy of the old legal system and its "rampant Leftism." 

PiS talking points include corruption among judges and the court system's slowness in processing cases. Opponents deny both: In the last 15 years, only five judges out of about 10,000 have been convicted of taking bribes, and the average case in the first instance courts drags on for 200 days -- about as long as in Germany but more than twice as fast as in Slovakia.

In 2014, when the European Union polled citizens about corruption, 82 percent of Poles said graft was widespread in their country; about a quarter of them said the courts were corrupt. On the other hand, 39 percent, one of the highest proportions in the EU, said the same of political parties. If the goal is to clamp down on corruption, it makes little sense to hand over control of the courts to politicians. Empowering the Justice Ministry and the parliament to purge the judiciary may ultimately mean that every time the government changes, so will the line-up of the top courts. 

But the PiS also has a point. Poland may have made a mistake in the way it ensured what lawyers call "political insularity" by giving the elected authorities so little control over the selection and appointment of judges. In the U.S., which has one of the world's most independent judiciaries, the president picks federal judges. Germany has struggled to choose an optimal mechanism of judge selection, and a number of different ones are used, including appointment by justice ministers and by committees formed by regional parliaments. Judges take part in the nomination process, but it's usually controlled by public officials. 

In Poland, though the judicial community essentially co-opts new judges, the Justice Ministry used to have an alternative mechanism for putting people on courts. A 2001 law allowed it to appoint "assessors" -- trainee judges in whom the ministry could, with a court's approval, vest full judicial powers. The law was amended in 2009 to introduce a new training system for judges and the ministry lost this lever. But it was probably useful as a back door for some interaction between political power and the judiciary, which is inevitable in a functioning democracy.

In most post-Communist countries, electoral democracy turned out to be easier to introduce than a truly independent judiciary. Generational change takes longer in the legal profession than in politics because it's more knowledge-based and elitist. It's impossible to parachute a new legal establishment into a country that is trying to make a clean break with a totalitarian system. In post-World War II Germany, the Allies ran a transitional justice system, supervising the local courts -- but even so, many of the judges who had served under the Nazis couldn't be replaced. Kaczynski's argument about the Polish judicial caste would have been more relevant 15 or 20 years ago -- the natural process of change has renovated the legal elite since Communist times -- but it's not completely irrelevant. Neighboring Ukraine's backward, corrupt, essentially unreformed judiciary is perhaps the biggest hindrance to the country's attempt to build new, trustworthy institutions.

A higher degree of political control over the judiciary is not a bad thing in and of itself. What's wrong with the PiS approach is the populist party's urge to ride roughshod over the judicial community and the opposition. It's clearly motivated by a desire to appoint loyal judges rather than ensure some degree of public control. That's what the human rights activists and EU officials respond to, and that's why, once PiS loses political power, its reforms are likely to be rolled back. If the party's leaders had more patience to discuss best practices, they might have made a more positive and more lasting contribution.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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