The row within Poland and between Poland and EU institutions has been on throughout the late spring and entire summer of 2017, over a controversial reform of the judiciary in Poland. Between May and August, several laws were carried and/or went into effect, that intended to change the organization and the way of operation of various parts of judiciary. A few legal changes launched by the Parliament were vetoed by the President of Poland, yet it was unclear whether or not they might soon reappear in the same or similar form.
Most of the new legislation has extended the authority of the Ministry of Justice, to the detriment of the judiciary itself, especially of the National Council of the Judiciary (KRS). For instance, one law allows the Minister of Justice to appoint assistant judges and permits the latter to serve as sole judges in district courts. As compared to proper judges, assistant judges undergo scarcer review of their appointment or performance. Another law allows Minister of Jutice to dismiss presidents or vice-presidents of courts, while the opportunities of the KRS to challenge the decision are limited.
Yet another law, which had changed the way the members of the KRS were to be appointed (as many as 15, instead of currently 6, of the total of 25 members, were meant to be appointed by Parliament), was vetoed by the President. Likewise vetoed was the law that had empowered the Minister to terminate the terms of the Supreme Court members.
Proponents of those changes argued that Polish judiciary badly needed reform both for reasons of judicial ineffectiveness and lack of ideological independence, thus failing to „meet the expectations of the people“. In their view, judiciary was a bastion of old communist structures that had avoided the post-1989 lustration.
Opponents saw the changes as yet another attempt by the conservative political forces to grasp absolute power and establish a system of „illiberal democracy“. Some objected the unconstitutionality of the proposed or adopted legal changes, while others warned at their discrepancy with the best EU practices and European values of judicial independence. Rallies or other public protests against the reform have been regular since its launching (among other things also demonstrating the vitality and self-sustainability of civil society organizations in Poland).
Many non-governmental observers, including FNF in its annual Freedom Barometer Europe Edition or in its posts on the social networks, noted that judiciary in Poland indeed badly needed reform, as the least reformed part of society in the post-communist period, hence being regionally and otherwise disorganized, ineffective and inefficient, as well as being a poor leverage in fighting corruption. But it was also noted that most of the changes launched after the PiS (Freedom and Justice Party) took power in 2015 did not lead towards the desired outcome of having a judiciary fit to EU standards of independence from the executive power and able to efficiently protect human rights against various violations. To the contrary, they aimed merely at replacing one set of ideological bias with another.
EU bodies or high representatives have also reacted to the ongoing developments in Poland. Especially vocal thereby has been the ALDE group in the European Parliament. European Commission expressed „concern“ a number of times. On 26 July, EC finally reacted in a more concrete way, triggering legal proceedings against Polish government for infringement of the EU laws. In the view of the EC, the ongoing legal changes in Poland undermine independence of courts, hinder access to effective legal protection and endanger the human rights to legal remedy and fair trial.
On 28 August, Government of Poland responded to the EC. They claimed/elaborated that the legal reform was indeed in line with EU standards and repeated (an oftenly used phrase) that it had been meeting the „growing social expectations“ of the people.
The row is likely to have continued. EU will certainly not give up. It will further on press Polish government to abandon the idea of submitting judiciary to the other branches of government. It is uncertain what kind and degree of concrete sanctions that might lead to, having in mind that Hungarian government (somewhat similar in its appoarch to a basic modern-democracy principle of division of power) often expressed support for its Polish colleagues and threatened to veto would-be EU sanctions (while on the other hand both governments are often accused by many, especially by liberals, for advancing populism).
For the case of individual human freedom, rule of law is vital. Independence of judiciary is an important element of it. Without effective court protection, without access to justice by each and every citizen under equal terms and without independence of courts from ideological, political, governmental, economic, criminal or crony bias, interest or other illicit influence, rule of law remains just a list of wishes. Reforming the structures inherited from totalitarian regimes, which have persisted for decades before and after the onset of transformation, also needs time. But it needs caution as well, so as to avoid a rebirth of basically the same system, only under different ideological banners.