A RULE OF thumb about the rule of law is that countries that have it are freer, fairer and richer than those that do not. Independent courts ensure even the mighty are subject to the law. But Poland’s ruling Law and Justice party (PiS) takes a different view (see article). It complains that judges are self-serving, unelected elites who substitute their own preferences for those of voters. Since taking office in 2015 PiS has passed laws that give the government ever more control over the judiciary, violating the commitment to uphold the rule of law that Poland made when it joined the European Union.
This conflict is coming to a head. The European Commission and the European Court of Justice (ECJ) have declared several Polish reforms incompatible with EU law. One change would have forced a mass retirement of judges, and given the government and parliament control over appointing new ones. Another set up a disciplinary chamber that can punish judges for their decisions. Others put the justice minister in charge of appointing senior judges who decide which of their colleagues hear which cases. Each time the aim is to make judges bow to politicians.
The bench is fighting back. Some judges have asked the ECJ whether colleagues appointed under the new system are legitimate. In December an ECJ ruling led Poland’s Supreme Court to reject the authority of the disciplinary chamber overseeing it. The government struck back with a still tougher measure barring judges from using European law against its reforms. Polish judges have taken to the streets. The commission has asked the ECJ to order Poland to suspend the disciplinary chamber.
PiS’s efforts against judges could harm not only Poland but also Europe. Each member state’s courts are obliged to apply EU law without political interference, and accept the ECJ as the final arbiter. If one member refuses to do so, the integrity of the whole system will start to crack.
The Polish government gives three reasons for its changes. First, it claims that Poland’s judiciary was never properly de-communised. This is bunk. The average judge was a teenager when Polish communism collapsed in 1989. Second, Poland’s courts are too slow. This is true, but the main problems are creaky IT and a lack of support staff, which the reforms ignore. Third, it says the new disciplinary chambers are needed to punish judges for such things as drink-driving. If so, why have they been used to harass judges who query PiS’s policies?
When accused of undermining the rule of law, Polish officials retort that their new rules are similar to those in other European countries. This is misleading. Poland has taken elements of systems that exist elsewhere and combined them so as to shift power to the ruling party. For example, many countries give both their parliaments and their national jurists’ associations a say in picking judges, as Poland does. But in Poland, since 2017, parliament has appointed most members of the jurists’ association as well. In effect, PiS controls the entire process.
PiS’s other argument is that its critics are biased against Poland. On January 16th the Venice Commission of the Council of Europe, a body of legal experts, issued a withering critique of the new judiciary law. Zbigniew Ziobro, Poland’s justice minister, simply accused the commission of applying different standards for western and eastern EU members, “segregat[ing] European countries into better and worse ones”.
Such naked appeals to nationalism will not deceive legal experts. If Poland nobbles its courts, the ECJ will eventually rule that they cannot be trusted. Any foreigner who loses a case in Poland could then turn to another European country’s courts, which could ignore the Polish decision. Cut off from European law, Poland would, in effect, be cut off from the EU itself.
Only Poland can avert this disaster. The government has rushed its new judiciary bill through the lower house of parliament, where it has a majority. However, the opposition-controlled Senate, though it cannot kill the bill, is likely to send it back for amendment. At that point, the government should drop the measure, just as, under EU pressure, it scrapped its plans for a mass retirement of judges in 2018.*
If it does not, the ECJ should suspend the disciplinary chambers. European leaders and the European Parliament should press ahead with plans to dock aid in the next EU multi-year budget to countries, including Poland, that harm the rule of law. Countries outside Europe should weigh in, too, as some American lawmakers have. Businesses operating in Poland should warn the government that a split from EU law would cause grave economic damage. And Polish voters should wake up. Those who defend the rule of law are defending the fundamental rights of all Poles, including PiS’s own supporters. ■
*After The Economist went to print, the Polish parliament adopted the new law unchanged. President Andrzej Duda should veto it.
This article appeared in the Leaders section of the print edition under the headline "The Lawless and Injustice party"