There’s Nothing Authoritarian About Poland’s Judicial Reforms

Poland’s supposed turn away from democracy and its recent attempts at reforming its judiciary have caused consternation and agitation at home and abroad. However, thus far, Polish democracy is alive and well. In fact, it may be in the process of deepening and strengthening.

Democratization in semi-peripheral societies is fraught with risk. Disturbing the status quo often leads to conflict between elites and people. Such a conflict, absent a strong economy that allows for a soothing of tensions, can bring about instability and sometimes even authoritarian government. This especially occurs when a nation lacks the mature, stable civic institutions that can check overreaching government.

However, this process and its concomitant risks are ones Poles must undertake if they want a modern, democratic, and prosperous Poland. Heretofore, Polish institutions, including the judiciary, have been structured along premodern lines, holding Poland back from modernity and full-fledged democracy.

Power that is not accountable is the very definition of tyranny. Yet this was exactly how the Polish judiciary was structured after the 1989 transition. Judges recruit judges into the judiciary. Judges then elevate judges to higher positions in the judiciary. And judges are supposed to hold other judges accountable for their misdeeds. Unfortunately, they have been slow to react to cases of corruption both grand and petty in their own ranks. True, grand, and overt corruption among the judges has thankfully been waning and is now relatively rare when compared to the earlier post-communist era—but it still hasn’t been cleansed out of the Polish judicial system completely.

Judges have by now realized that permitting corruption among their own reflects adversely on all of them. In the past, they engaged in corrupt schemes such as issuing judgments during bankruptcy proceedings and transferring assets that would benefit a judge and his associates. This didn’t used to be punished but now it seems to have been weeded out. However, the whiff of impropriety and corruption lingers to this day—even among the highest judges of the land—given the history and lack of accountability for previous schemes and rackets.

The Polish Supreme Court has rejected transparency unto itself and for years has refused to fulfill freedom of information requests that would disclose contracts granting one company a monopoly to publish its judgments. It has also refused similar requests for disclosure of expenses on credit cards issued at taxpayer expense to the judges of the court. Even worse, nothing was done about a Supreme Court judge advising a friend on how to write requests to the Supreme Court in an upcoming case. Just recently the Supreme Court decided that disrobing a judge caught shoplifting is too severe a penalty and ordered a two-year pay cut instead. Let that sink in for a moment: the Supreme Court of Poland has deemed it okay for a shoplifting jurist to remain on the bench.

International audiences may have been told that democracy in Poland is under threat. We agree in full—but in our opinion, it is under threat from a judiciary that refuses to come clean. Some of our compatriots disagree. They think that things are best left as they have been, because they distrust the politicians of the current government. We distrust all politicians, but we believe Poland needs an honest and efficient judiciary, lest the perceived corruption and inefficiency lead to even higher levels of public distrust.

A judiciary that has total autonomy from both other branches of government and the people is a throwback to the premodern and the more recent communist past. For much of recorded history, civil peace and justice were imposed by a narrow self-recruited elite that regulated itself according to an internal code of honor. As long as this elite wasn’t too self-serving, it was a good deal for society. The aristocracy, after all, has given Poland a modicum of civility throughout the ages.

However, since the Enlightenment, the idea that power must be held accountable by the people has thankfully continued to gain currency. In fact, it is this growing belief that the capacity of society and the state to act grows with the degree to which power is held accountable that is a necessary prerequisite for modernization. When the citizenry is confident that officials are answerable to them, they will grant them more capacity to act. Poland is unlikely to progress unless its institutions, including the judiciary, are further subject to checks and balances that make citizens the ultimate arbiter of right and wrong.

Under communism—or to be more precise, after the Stalinist phase of communism—the Polish judiciary (give or take a few judges loyal to the party who were assigned the political cases that the party had an interest in) pretty much ran itself. This, too, was a good deal for society. Creating spheres of relative autonomy based on the intelligentsia’s code of decency served us well, because it somewhat constrained the tyranny of the communists. Yet a judiciary that today is unaccountable to the people is a disservice both to Poland and to democracy.

Poland has no impeachment procedures for judges. There exists no equivalent of the U.S. Judicial Conduct and Disability Act (1980). Polish judges and its elite parties tell us that politicians absolutely must not have any role in judicial nominations and oversight.

This is in stark contrast with the American system, where the president picks the candidates for the federal judiciary and the Senate advises and consents (or not) to these nominations. This has hardly led to an authoritarian United States. The numerous checks and balances in the American system of government do a respectable job of keeping the specter of abuse of power and tyranny at bay.

Poland has neither a comparable system of separation of powers nor a comparable set of checks and balances to hold back the power-hungry from lording over and abusing society. The task of instilling judicial independence whilst retaining accountability is harder in Poland than the task of comparably maintaining this balance in Western Europe or in the Anglo-American world.

But the reform process, as part of a successful societal maturation, must proceed. Just as people in societies with a longer history of democracy would not quietly put up with a self-serving and self-appointed elite, the people of Poland increasingly yearn for an efficient, honest, and accountable judiciary. There is room for disagreement among reasonable people as to how to best achieve this goal. But keeping things as they were is not an option. Poland’s progress in modernizing these systemically integral institutions is slowing. We in Poland will either work out by trial and error how to rejuvenate that process, or we will fail and drift from the semi-periphery to the periphery.

The task of modernizing the Polish judiciary will be accomplished, if at all, via the political process. It will be neither pretty nor dignified. Politics never is. It will be a partisan clash of ambitions and interests, which, if we Poles are lucky, will leave us with a more accountable, honest, and independent judiciary.

Those hard set against introducing more accountability for the judges, or those simply scared of change and wedded to this status quo, are crying wolf, or rather are crying “authoritarianism.”

Government bodies canceling the subscriptions of opposition newspapers is hardly the abrogation of a free press that global audiences have heard about incessantly from the turfed-out opposition and parroted by their friends in Western media and the international political class. Petty and vindictive? Perhaps. Authoritarian? Hardly.

The current government has nominated its loyalists to key positions in state-owned media, just as every other Polish government has done over the last three decades. As for the judiciary, the supposedly right-wing and authoritarian president vetoed two of the three bills passed by his party that were supposed to reform the judiciary but gave too much power to the overzealous justice minister. Post-veto, those bills were amended to lessen the influence of the executive and legislative branches over the judiciary. This is trial and error in action, and an evolution of checks and balances in action, as the executive branch checked the impulse of the legislature to exert too much control over the judiciary in order to maintain the necessary balance vis-à-vis these separated powers.

Government for the people and by the people is always an unfinished task with plenty of opportunity for error. It looks like Poland just avoided one such error.

Keep cheering for democracy in Poland. But if you do care about Polish democracy, please don’t cry authoritarianism just yet. For your call may not be heeded when it is really, truly necessary.

Pawel Dobrowolski is an economist and former investment banker who served as an assistant to economist Jeffrey Sachs, who helped to Poland’s economic transition and debt reduction program during the first Leszek Balcerowicz government.

Matthew Tyrmand is a journalist and political activist.

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