The greatest challenge in 2020: the president must end Poland’s “war of the courts”

The crisis surrounding the judiciary is as political as it is legal, and so it is at political level that it requires unconventional solutions to nullify much of the dispute and seek a way forward. It is up to the entire political class to look for an emergency exit from the situation we find ourselves in. We should not be reassured by the fact that a large section of citizens and public opinion is not unduly bothered by the gravity of the situation.

The 2020 presidential elections are the last chance to prevent a situation in which the painful consequences of changes in the judicial system will begin to be felt widely among ordinary citizens. Without pressure from society and the media, the candidates in the elections will be happy to repeat the same platitudes and meaningless catch-all phrases or to make suggestions that will appease only one of the sides. Any candidate satisfied with such statements is undeserving of the title of head of state.

Time to nullify the conflict

The optimistic scenario is that the main feature of the political year 2020 will be the presidential elections. The pessimistic, but all too realistic, scenario is that it will see the continuing state crisis resulting from the deepening anarchy in the judicial system and a kind of “mutiny” among a large proportion of judges. This is a reaction to the government’s irresponsible and – as the consequences show – harmful actions. It is therefore essential for a key theme of the presidential elections to be a serious, substantive and concrete debate on how to escape from the situation.

The candidates deserving of support in May’s elections will be those who do not confine themselves to fiery rhetoric or suggesting solutions comfortable to their own political camp, but demonstrate the ability to present a way out of the crisis that will be acceptable to their political rivals. This, incidentally, should always be the role of the head of state – a guardian of the constitution who is mindful of import of the office and able to look beyond the interests of his or her own political support base.

Squabbling over who started it and who caused the most mess no longer makes any sense. Not because it is irrelevant, but because it will not get us anywhere. Debates over legalistic principles also make little sense, although they are not without value. The problem is that following them will not lead us out of the crisis. The crisis that has developed is no longer solely legal, but political too, and so it is at political level above all that it calls for unconventional solutions.

Most of today’s dispute should be nullified in the search for a way forward. It is the duty of the entire political class to seek an emergency exit from the situation we find ourselves in. Deciding whether judges have the right to assess the status of other judges will not provide a way out of the crisis.

Puzzling over whether the articles of the so-called “disciplinary” or “muzzle” law proposed by the ruling Law and Justice (PiS) party are in accordance with the Polish constitution and EU law will not provide a way out of the crisis. Appealing to a succession of European courts will also not provide a way out of the crisis. And neither will exerting various forms of legislative pressure on judges provide a way out of the crisis.

In normal conditions, it would be right to weigh up the arguments for and against each of these moves. But conditions stopped being normal a long time ago. Each move cranks up the spiral of conflict still further, and this is beginning to pose a serious danger to the state. If we want instead to begin winding it down, we must accept this difficult, unprecedented state of affairs. You might say this is legal nihilism. Perhaps. But I would rather call it political pragmatism addressing the greater need to bring an end to a genuinely threatening situation for the state and the interests of thousands of citizens.

The crisis is a fact

In practice, certain political and legal meta-norms have ceased to be universally accepted in Poland – the assumed constitutionality of civil law, the Constitutional Tribunal’s exclusive competence to pronounce on constitutionality, the primacy of the constitution over EU law, and the presumption of the “legitimacy” of the decisions of constitutional organs, particularly the president and the National Council of the Judiciary (NCJ).

At the same time, the authority of the Constitutional Tribunal has collapsed, which with each passing month is becoming an increasingly hollow institution. This is best demonstrated not only by the drastic drop in the number of judgements passed (72 in 2018, compared to 173 in 2015), but especially the number of enquiries and petitions submitted to the constitutional court. As Małgorzata Krzyszkiewicz writes in Dziennik Gazeta Prawna, the number of cases referred to the Constitutional Tribunal fell by 388 over four years, from 623 in 2015 to just 235 in 2018.

More alarming still are the statistics on questions of law referred to the Tribunal by common courts – the fall in this respect is from 135 to just 15. Such statistics ought to persuade even the most ardent advocates of “good change” (the name given by PiS to its reforms) to the court and tribunal that this is a real problem.

These are all rather abstract categories which are hard to understand for the ordinary citizen. But the risk of worsening anarchy in the judiciary and the emergence of parallel worlds of sorts – again, without attempting to adjudicate on “who is right” – could affect every one of us. The position of the parliamentary majority, the government, and some of the “new” legal elites will respect the legitimacy of verdicts handed down by the judges nominated by the NCJ in recent years.

A large section of legal circles, the majority of “old” judges and, no doubt, many of the opposition – will be of the view that these are non-verdicts handed down by non-judges. Whatever the parliamentary majority might put into further legislation, the defenders of the status quo ante will continue to try to challenge it by referring directly to EU law.

This still sounds abstract. But to put it in tangible terms, if no compromise is reached, thousands of citizens will live in a state of legal uncertainty as to the rulings that will decide on their lives. On divorce, say, or inheritance. Such a sense of legal insecurity and lack of trust in state institutions represents a huge national crisis. Sooner or later, it will be followed by a drastic decline in the sense of economic security, not to mention Poland’s situation in the international arena.

Saddling citizens with such a burden because the feuding elites are incapable of coming to an agreement is a scandal for which all those unwilling to seek a genuine compromise solution are jointly responsible. The fact that most citizens and general public opinion are scarcely aware of the seriousness of the situation should not reassure us. The 2020 presidential elections seem to be the last chance to prevent the painful consequences of changes in the judiciary from starting to be widely noticeable.

Which way to normality?

Let us reiterate a platitude that seems so hard to understand for the legal and political elites. By its very nature, a compromise does not satisfy either side 100%. Each must retreat a few steps to normalise the situation we have come to. Both the framework for discussing the content of this compromise and the method by which it is achieved should be presented by all the candidates, including the incumbent president. There may be several paths, and we should expect the candidates to present them during the campaign.

The most obvious route is to amend the constitution in such a way as to establish a zero option for the courts and tribunal. There is no sensible way – meaning one that will convince both sides of the conflict of the legitimacy of the verdict – to find a legal solution to the dispute over either the status of judges in the Constitutional Tribunal (those nominated by PiS that the opposition calls “stand-ins”); or the legitimacy of the National Council of the Judiciary (in the form established by PiS that the opposition refer to as the “neo-KRS”); or the status of the disciplinary chamber of the Supreme Court. Legal arguments might at times favour the “good change” promised by PiS, and at others their vociferous critics – but they will neither solve the crisis of the legitimisation of these bodies nor halt further “mutiny” efforts.

A sensible solution would therefore appear to be a change to the constitution – requiring a two-thirds majority in the Sejm to support a compromise – that would force all the contentious bodies to be re-organised, foreseeing transition conditions acceptable to all parties.

For such a manoeuvre to be successful, it would doubtless be crucial to make appointments to these bodies in another way than by ordinary parliamentary majorities. Possibilities are either qualified majorities or a more “mixed” form of appointments. In order to avoid such disputes in the future as that over the interpretation of Article 187 of the Constitution (the makeup of the KRS), it also seems expedient to acknowledge that laws concerning the judiciary in broad terms – including the laws on the Constitutional Tribunal and National Council of the Judiciary – should have the status of organic laws, and thus also passed and amended by qualified majority, e.g. a minimum three fifths of the Sejm.

Electoral platitudes are not enough

Of course, there may be many ideas for a constitutional “zero option” offering a way out of the crisis. First, however, we should expect that the candidates in the presidential race will present their ideas. Of course, the president is unable to change the constitution. Today, however, perhaps no one other than the head of state can even attempt to force such a debate on party and community leaders.

The president should take the initiative, benefiting from the prestige and gravitas intrinsic to his office as well as the right of legislative and referendum initiative and the opportunity to summon a National Security Council or Cabinet Council, to make the party leaders an offer they cannot refuse. Exaggerating slightly for symbolic value, he should invite the political leaders and keep them “under lock and key” until they find a compromise supported by a constitutional majority. After all, he can make use of the cohabitation of two different majorities in the two houses, the Sejm and the Senate, as a tool to put pressure on party politicians more than he previously has – the opportunity to declare a referendum that the Senate will agree to.

It would be best if President Andrzej Duda would dare to take such ambitious steps before the elections, for instance in the course of further work on the recent amendments adopted by the Sejm. If he does not do so now, it will be hard to imagine a credible proposal for escaping the deadlock over the courts and tribunal during the campaign. But the lack of a personal and ambitious initiative in this respect could cost him the fraction of votes that will decide on who occupies the Presidential Palace for the next five years.

Regardless of Duda’s actions, however, public opinion should expect concrete proposals not only from him, but from all the candidates. Presidential elections are a kind of plebiscite – a major role is played not so much by programmes as by characters, images and trust in specific candidates. Candidates are aware of this, and in the absence of pressure from citizens and the media, are content to repeat trite platitudes and catch-all phrases or to suggest solutions that only appease one side of the dispute. To put it emphatically, no candidate who only voices such slogans deserves to be head of state.

This is why, in this election year, we at the Jagiellonian Club intend to ask all candidates entering the presidential fray to propose their own “road maps” for finding a way out of the crisis and ideas for a reconfiguration of the constitutional rules governing the authority of the courts and tribunals. Please join us in demanding specific details from candidates on this key issue.

In 2020 let us seek to inspire the president of Poland to restore the civic social agreement on the judiciary. Without this, it is hard to speak of a political community, efficient state, security of citizens or a mature democracy.

Translated by Ben Koschalka and published in English on NotesFromPoland. Original Polish version is available here.