Liberty denied: Tracking the subversion of Poland’s judiciary and public media

, by Meray Maddah

All the versions of this article: [English] [français]

Liberty denied: Tracking the subversion of Poland's judiciary and public media
A protest against the Polish government’s changes on the judicial sector, 2017. Photo: Sakuto // Flickr (CC BY-ND 2.0)

Poland has long received regular mentions in headlines in both print and online international media, particularly in Europe. The state’s ruling party, Law and Justice (also known as PiS) has been in the forefront of controversy both on the European arena and globally due to the plethora of infamous laws which have undermined norms shared between European Union member states.

To look at Poland’s current situation means to trace the country’s problematic aspects which have been making headlines over the past years; aspects that have sprung to light since the last parliamentary elections in 2015 when the Law and Justice party won a majority in the lower house of the legislature, Sejm – making it possible for the first time for a single political party to govern within the Parliament since the country’s democratisation in 1989.

After a tumultuous two years of premiership, the party’s principal candidate, ultra-conservative Beata Szydło, lost a vote of no confidence initiated by the opposition parties. Szydło resigned and was replaced by deputy Prime Minister Mateusz Morawiecki, well-known for his former role as Minister of Finance and Economic Development and the economic mastermind of the ruling party.

The nationalist, right-wing party has widened its sphere of influence within Poland’s state branches, as well as insinuating support towards authoritarian voices in domestic politics. The party has thereby deteriorated the strength of the supposedly independent judiciary branch and the strength of the Polish Constitution. Such malicious measures have trickled down to affect one of Poland’s notoriously conservative-dominated domains of political controversy, namely reproductive rights of women and abortion laws in a country where a specific kind of interpretation of Catholic values is entrenched.

This article expands on the actions committed by the ruling PiS party and some of its allies; the indifference towards the democratic notion of separation of powers between the different branches of government, with emphasis on the allegedly independent judiciary and the respect for the rule of law in Poland; and the limitations on the freedom of the press. The second part adds to the picture the restriction of women’s reproductive rights that has extended as far as questioning the very legality of abortion in the country.

Subversion of the judiciary and public media

One fundamental debate concerns the Polish judiciary and its independence, with respect to institutions like the Constitutional Tribunal. As explained in thorough detail by an Amnesty International report from mid-2017, Poland’s PiS party has managed to orchestrate and follow through a number of controversial laws which, some have claimed, undermine the independence of the judicial branch, the appointed judges, and the assistant judges that supervise and assist in several judicial procedures.

As the report details, there have been numerous amendments and bills proposed before the Parliament; four of which will arguably impact the autonomy of Poland’s judicial branch. The first law, titled “The Law on the National School of Judiciary and Public Prosecution”, which has been in force since June 2017, carried certain implications that could potentially undermine the procedure pertaining to the appointment of judges to a court. The controversial law proposed that assistant judges can step in for another judge’s absences in a courtroom, which has been described as a rogue initiative to obstruct the credibility and responsibility of judges, as well as undermining the legitimacy of the National Council of the Judiciary (NCJ) – the constitutional body that is responsible for the independence of the judiciary in Poland.

The second law, which was passed by the Sejm in August 2017, under the title of “The Law on Common Courts”, has proposed that Poland’s Minister of Justice, who simultaneously occupies the role of the state’s national Prosecutor General, has the authority to appoint presidents and vice-presidents of courts. Under this new piece of legislation, these appointments and decisions cannot be appealed in court out of obstruction.

Nevertheless, there have been two laws which were proposed but vetoed by the Polish president - Andrzej Duda, member of the Law and Justice party holding considerable executive power within the state’s government. These two bills would have “forced the resignation of all Supreme Court justices, with their replacements to be selected by the Minister of Justice. The other proposed bill would have given government-appointed members effective veto power in the NCJ which selects independent candidates for judicial roles.” Both bills were sent back to the Parliament. Once at the Parliament, any veto by the President can be overruled by a parliamentary supermajority of 60%. The PiS Party only wields a thin majority in the Sejm and as such, the PiS would have had to find allies within other parties to garner the number of votes needed to overrule the President’s veto. These actions came after the European Union had suggested that certain measures, including “legal actions and sanctions”, could be applied to the country if it compromised the rule of law and the independence of the judiciary any further.

Protesters were keen to show their zeal towards the vetoes enacted by President Duda and encouraged him to veto the other laws, which if enacted, can inherently subvert the country’s judiciary and in turn undermine the legitimacy of the Law and Justice Party, leading to an alteration in the public opinion which favoured the party’s candidate during the previous elections. Freedom House’s report on Poland has shown that although the country is rated as ‘Free’ in the overall assessment, it is only ‘Partly Free’ when it comes to the freedom of the press, and receives a democracy score of 2.57, on a scale of 1 to 7, with 7 as the worst possible score.

The monitoring of press freedom within Poland has been urged by both the European Union and the United States to be subjected to further and more stringent democratic standards. The abovementioned laws that have ploughed Poland’s judicial system have ignored numerous critics who have long expressed their views of the PiS party’s subversion of the NSC and its influence on the allocation of judges based on the ruling party’s political preferences. In the state-funded public media, journalists that have come forward to report on the actions against press freedom in Poland have been labelled as ‘propaganda’ that opposes the state’s current trajectory. Interviews have shown that since the Law and Justice Party took over the country’s government, public media stations such as Telewizja Polska (TVP) have witnessed a shift in their reporting, including in the tone of reporting on the European Union and Germany.

According to the most recent report by the Reporters Without Borders on press freedom, Poland has fallen to a ranking of #58 out of 180 countries around the world, down from its highest ranking of #15, which it held in 2015. In the face of publicly-owned media’s standardised reporting, private broadcasters have been questioning the government’s and security services’ actions, as well as reporting on protests in opposition to the state’s interference with press freedom and the obstructions it has introduced on foreign ownership of broadcasting agencies.

In October 2017, Human Rights Watch published a report underlining further actions of the PiS party to restrict media freedom within the state. It highlighted the fact that the state’s Finance and Treasury Minister, based on an amendment to the Broadcasting Law in 2015, would have the “the power to appoint the management and boards of directors in public service media, removing the role from the National Broadcasting Council (NBC), the regulatory body previously responsible for such appointments”. Such an amendment has been since ruled unconstitutional by the Constitutional Tribunal for excluding the unbiased, politically neutral NBC from the decision-making process.

The latest forced retirement of judges older than 65, and the appointment of 27 new judges – a move since rejected by the European Court of Justice – was characterised by many as a dubious, reactionary move against the EU’s disapproval on how rule of law norms are treated in Warsaw. The impact of the government’s willingness to make controversial moves like this, however, won’t be limited to the independence of the judiciary branch only; it also finds echoes in the undermining of freedoms, civil liberties and European values that Poland owes to its citizens.

The next part will connect the theme of rule of law to the question of reproductive rights in Poland. Read the second part here.

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