The Polish Judicial Council: The Last Line of Defense of Judicial Independence Against PiS Reforms

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1 Law and Courts in Europe POLI 330 Titouan Chassagne The Polish Judicial Council: The Last Line of Defense of Judicial Independence Against PiS Reforms Prof. Maria Popova McGill Faculty of Arts 2394 words December 7 th, 2017

2 In October 2015, the right-wing Law and Justice Party (PiS) won a majority in parliament. It was the first time a single party held majority power since democracy was restored in Shortly after its election, the party dismissed five judges appointed to the Constitutional Tribunal (TK) by previous parliaments. It then passed a series of controversial judicial reforms that were met with sharp criticism from the international community. The European Union called the reforms a threat to the rule of law in Poland (European Commission 2017) and threatened to resort to its nuclear option by triggering article 7 of the European Union Treaty. The ruling party PiS argued that the reforms were necessary because the judicial system was inefficient and controlled by an elite of unaccountable judges. The reforms gave rise to nationwide protests eventually forcing President Andrzej Duda to veto two out of the three reforms adopted by the parliament. Although PiS could in theory override the President s veto by forming a coalition with other parties in Parliament, it is more likely to adjust the bills and reintroduce them in parliament. The one reform that was not vetoed by the president greatly disempowered the Polish judicial council (KRS). In this paper, I will argue that through judicial reforms, as well as other reforms pressuring the judiciary, PiS is trying to disempower and gain control over the polish judicial council in order to undermine judicial independence and ultimately the rule of law in Poland.

3 Judicial independence and the role of judicial councils Judicial independence is central the idea of rule of law. It posits that the judiciary should be protected from any external source of influence. Be it the government or the public (Fiss 1993, Popova 2012). In this paper, I will be looking at the institutional definition of judicial independence interchangeably referred hereinafter as institutional insulation or judicial insulation. Judicial insulation is the formal institutional arrangement through which judicial independence is attained. It establishes and maintains the structural separation between the judiciary and the two other branches of government. This institutional separation of powers is necessary to ensure that no one can usurp complete power (Montesquieu 1748). Politicians do not want to be constrained by the judiciary in their actions. Because of its position, the incumbent government has both motives and means of undermining the rule of law. Independent courts must therefore be established and maintained through formal institutional arrangements and structural safeguards. Safeguards include life tenure guarantees, judicial control over judicial careers and court budgets (Popova 2012). Judicial councils are the institutional arrangement through which these safeguards are provided. They have sprouted across Europe under the assumption that they contribute to the independence of the judiciary and in turn to the protection of the rule of law (Castillo Ortiz 2017). The goal of these councils is to maximize judicial independence by placing the responsibility of governing and monitoring judicial behavior in the hands of independent judicial authorities (Beers 2012). According to the European Network for Councils of the Judiciary (ENCJ) which unites the

4 judicial councils of the member-states of the European Union, judicial councils are responsible for the support of the Judiciaries in the independent delivery of Justice (ENCJ 2017). Put simply, judicial councils are governments of judges, by judges, for judges. Depending on the country, judicial councils provide a mix of different safeguards such as judicial control over judges appointment, dismissal, promotion and transfers. Some judicial councils can also take disciplinary actions against judges or allocate budget to the different courts of the national judicial system. The polish national judicial council (KRS) was established on the premise that a certain level of self-governance was necessary for the judiciary to be politically neutral. It has the power to propose the appointment or dismissal of first-instance judges but cannot carry out the process itself. Their recommendations are subject to approval from the Ministry of Justice. The KRS also has the power to nominate judges to the supreme court and finally to adopt ethical standards (European Commission 2016). On a quantifiable level, this set of different powers places the KRS amongst the least powerful judicial councils in Europe. Its powers are not only limited in number but also in range. Most of the KRS powers are subject to the approbation of the executive branch through the Ministry of Justice. The KRS does not have control over judicial careers other than proposing appointments or dismissals. Powers to appoint, dismiss, promote, transfer or take disciplinary actions against judges lie in hands of the Ministry of Justice and ultimately of the executive branch. The KRS does not have the power to allocate budget to the different courts of the judicial system either (European Commission 2016). Nonetheless, the KRS can arguably be considered self-governed.

5 Appointment of judges to the council is essentially controlled by the judiciary (Castillo Ortiz 2017). When used as a mechanism to guarantee judicial independence, powerful judicial councils are a double-edged sword. High independence can reinforce the rule of law by allowing judges to interpret the law free of external pressures, but it can also make them unaccountable. Risking that political decisions be taken by an unelected and unrepresentative group of judges. In fact, this is exactly the argument used by PiS to justify judicial reforms essentially pushing for modern-day lustration laws. Such reforms, they argue would help improve a corrupt and inefficient judiciary that is controlled by an elite of judges since the communist era. This argument, however, is hard to justify in the context of the Polish judiciary where judicial careers are essentially controlled by the executive branch. Judges are appointed, dismissed, transferred and promoted by the ministry of justice and not by the KRS. More accountability could also lead to an excess of political control over the KRS (Garoupa and Ginsburg 2009), a consequence most certainly intended by PiS. Ortiz argues that when judicial councils are not powerful, politicians have fewer incentives to play battles over their control (Castillo Ortiz 2017). He identifies Poland as an exception to this theory. While the KRS may not be a powerful judicial council, gaining control over it would also allow the incumbent government to gain control over the supreme court. Possibly, PiS has a bigger political agenda than just reducing the independence of the judiciary. Disempowering the KRS would prevent the judiciary from restricting the actions of PiS in the future. Further, the KRS is the embodiment of institutional insulation, it provides a structural separation between the

6 judiciary and the other branches of government. It serves as a forum where judges can organize themselves. To avoid judicial limitations on the extent of its powers, PiS is attacking the last line of defense of judicial independence in Poland. The fact that the KRS is, in terms of powers, a weak council, makes it a vulnerable threat to the Polish government (Castillo Ortiz 2017). PiS is seizing the opportunity arising from its parliamentary majority to seize control over the judiciary. Polish judicial reforms: threats to judicial insulation Now that I have listed out the institutional safeguards provided by the KRS, I will be looking at how they have been individually impacted by the reforms proposed by the Law and Justice Party (PiS) and how it has affected judicial insulation as a whole. Once the impacts on judicial insulation have been evaluated, we will look at whether or not such impacts translated into concrete hindering of judicial independence. To undermine judicial independence, the current government is trying to weaken the institutional arrangements that help to guarantee judicial insulation. The first reform proposed requires all supreme court judges to step down. The second gives the Ministry of Justice control over who sits at the KRS and thus, control over nominations to the supreme court. The third and only reform that was passed by the Sejm and approved by the president gave the Minister of Justice the right to propose and dismiss low-instance courts judges. While the Ministry of Justice already controlled appointments of judges to lower courts, it could not propose its own candidates and was thus limited to dismissing or approving those put forward by the KRS. These

7 reforms allow the government to override the KRS very few powers thus rendering it obsolete and weakening judicial insulation and the rule of law. The correlation between judicial insulation and the alignment of judges with the principles of the rule of law is often questioned. While the reforms proposed were clearly aimed at disempowering the judicial council to undermine judicial insulation, we need to assess whether or not they have had a concrete impact on judicial independence. Judicial independence is only achieved if judges are free to interpret the law and adjudicate cases without fearing repercussions. The best way to assess the impact that the changes in judicial insulation had on judicial independence is to assess judges behavior. One way to do this would be look at empirical data on court decisions. An independent judiciary is one that does not consistently favor one actor (Popova 2012). However, because reforms to the judiciary have only been proposed and passed so recently, empirical data on court decisions is lacking. Another way to evaluate the impact of the judicial reforms on judge s behavior is to simply look at survey data. By crossing data surveyed in 2015 before the reforms were announced with survey data from 2016, after the reforms had been introduced, we can determine if the attempts of the government to undermine judicial insulation lead to concrete changes of judge s behavior. The ENCJ collects such data every year. Firstly, in regard to the relationship between judges and the judicial council, Poland sets itself apart from the rest of Europe. Overall Polish judges trust that the KRS does not undermine their independence. Although similar figures are not rare in northern European countries, Poland is the

8 only country with such a highly-trusted judicial council in the rest of Europe. In 2016, 93% of judges surveyed said that their independence had been respected by the KRS. Representing a 6% increase since 2015 (ENCJ 2016, ENCJ 2017). A concrete example of how the reforms impacted the perception of independence from within the judiciary is also given by survey data on appointments. In 2015, 21% of judges believed that other judges had been appointed on basis other than experience and ability. In 2016, this number reached 35%. In 2016, 74% of judges surveyed believed that the independence of the judiciary had not been respected by the government. Representing a 50% increase in only one year (ENCJ 2016, ENCJ 2017). This translated into concrete changes in court decisions. In 2016, 14% of judges questioned said that they had been affected by threat or actual disciplinary actions because of how they had decided a case (ENCJ 2017). Because disciplinary actions cannot be undertaken by the KRS, concerns from judges alert us of a will from the Ministry of Justice to undermine judges ability to deliver impartial rulings. Another reform although not strictly judicial has had a direct impact on the way justice is served in Poland. In 2016, PiS created a National Council of the Media in charge of appointing the management of public media. Giving the government control over TV channels, radio stations and the national news agency PAP. The government since then effectively used this new platform to promote its own agenda and instill suspicion regarding judges and the judiciary. The measurable impact of this reform is striking. In 2016, 37% of judges believed that decisions taken by other judges had been affected by actual or anticipated actions of the media. This represents an 18% jump since before the media reforms were introduced in 2015 (ENCJ 2016, ENCJ 2017).

9 Why now? Now that I have established PiS intentions to undermine the independence of the judiciary, another question needs to be answered: why is this happening now? The strategic pressure theory asserts that political competition incentivizes the incumbent government to gain control over the judiciary and thus undermines judicial independence. This approach does not apply well to Poland where political competition has always been high. If anything, we notice a reduction in political competition. PiS victory marks the first time a single party held majority power since democracy was restored in The political fragmentation theory better applies to the Polish case. For close to 30 years, the country was ruled by parliamentary coalitions and minority governments. Power was diffused amongst many fractions that were unable to coordinate actions against the independence of the judiciary. Evidence of this theory lies in the previous attempts by PiS to push reforms undermining the independence of the judiciary in The reforms were struck down by the constitutional court and eventually abandoned by the thenminority party due to the lack of support from other parties (Coman 2014). Today the same party is able to push such reforms because it not only has the will to reform the judiciary, it also has the parliamentary majority needed to push these reforms forward. Originally designed to be even weaker, the KRS was fully empowered with all the functions it serves today in the early 2000 s (Coman 2014). While the KRS remained a relatively weak judicial council, this empowerment explains PiS resolution to disempowering it. The party might have feared that overtime, the council would grow more powerful and sought to control it while it was still vulnerable. Before the KRS would itself gain control over the other branches of government and restrict their actions.

10 Conclusion By analyzing the changes in survey data collected by the ENCJ before and after the introduction of reforms threatening judicial insulation, we can assess the effects these reforms had on the rule of law. Following the introduction of the reforms, judges behavior regarding the interpretation of laws appeared to have changed. By disempowering the judicial council, the government successfully undermined judicial insulation which translated into concrete behavioral changed amongst judges. We observe that the government s attempts to undermine judicial insulation concretely impacted the judicial independence and ultimately the rule of law in Poland. Using claims that the judiciary s unaccountability could lead to the judicialization of politics, the incumbent government is trying to secure power by hindering judicial insulation. Essentially attempting to weaponize the law. This drive toward authoritarianism, while alarming, can hardly be stopped by the European Union if Hungary takes Poland s side and blocks the use of Article 7.

11 Bibliography Beers, Daniel J "Judicial Self-Governance and the Rule of Law." Problems of Post- Communism 59 (5): Castillo Ortiz, Pablo José "Councils of the Judiciary and Judges Perceptions of Respect to Their Independence in Europe." Coman, Ramona "Quo Vadis Judicial Reforms? The Quest for Judicial Independence in Central and Eastern Europe." Europe-Asia Studies. ENCJ About Us. ENCJ "Data ENCJ Survey on the Independence of Judges." ENCJ "Independence and Accountability of the Judiciary and of the Prosecution." European Commission "European Commission acts to preserve the rule of law in Poland." Press Release, Brussels. European Commission The 2016 EU Justice Scoreboard. Luxembourg: Publications Office of the European Union. European Commission The 2017 EU Justice Scoreboard. Luxembourg: Publications Office of the European Union. Fiss, O. M "The Limits of Judicial Independence." Inter-American Law Review Garoupa, Nuno, and Tom Ginsburg "Judicial audiences and reputation: perspectives from comparative law." Columbia J Transnatl Law. Montesquieu The Spirit of the Laws. Popova, Maria Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine. Cambridge.