Only 26 pages contain a draft law that could plunge Poland into chaos. Introduced by the ruling national conservatives (PiS), it aims to deprive the country's judiciary of independence. If judges question the legality and decision-making powers of certain courts and chambers, they face fines, transfer, prison.
Before Christmas, the PiS majority could bring the submission through the lower house, the Sejm. Angry judges and citizens have announced demonstrations throughout the week. If Parliament passed the law, confusing and lengthy legal disputes can be expected, revision and counter revisions. The EU Parliament has discussed the matter and the EU Commission has to deal with it.
Poland, which is already at odds with the Brussels Commission over the rule of law, is facing a constitutional conflict. Will the case law continue to function or will the judiciary collapse? The political conflicts in the country are becoming increasingly acute.
The matter is legally complicated, the dispute has a long history.
- The PiS government had decided two years ago that the composition of the National Judicial Council will largely be determined by the parliamentary majority. This body appoints judges. In other countries, such as the Federal Republic, the legislature, the parliament, has a great influence on the selection of judges. But here - unlike in Poland - federal elements are involved, the federal states have weight, the party spectrum is broader.
- That is why in November the European Court of Justice in Luxembourg questioned the appointment of judges by the National Judicial Council. It is a violation of the principle of separation of powers if the judiciary is dependent on legislative power. The Polish Supreme Court must make a final decision.
- It did so on December 5th: Poland's Supreme Court followed the Luxembourg decision.
- This raises the question of whether the approximately 500 judges appointed by the National Council of Judges in the past two years must be replaced. It is also unclear whether all of your decisions are invalid.
The new PiS legislative initiative wants to solve this problem with a stroke of the pen: Judges who question the decisions of the National Judicial Council therefore exceed their powers and can be punished. This should also be the case if a judge questions whether the chamber of another court has been legally constituted or whether it is authorized to rule on cases.
"Many Constitutional Control Mechanisms Eliminated"
According to the draft, judges should be prohibited from expressing themselves politically, i.e. going to a demonstration these days. They would have to disclose which professional associations they work in and which social media they use. The whole thing is to be monitored by a specially created disciplinary body. It can impose fines and imprisonment, it can downgrade unruly judges.
Many Polish judges are horrified. With the new law, PiS is finally submitting the judiciary, they fear. It prevents judges from working to ensure that the principles demanded by the European Court of Justice are also implemented. "This will liquidate many of the control mechanisms provided for by the constitution. It's like sending tanks against peaceful demonstrators," says lawyer Michal Wawrykiewicz of the "Free Courts" initiative.
Kacper Pempel / REUTERS
PiS boss Kaczynski: Clean up thoroughly under the judge
PiS boss Jaroslaw Kaczynski bases his law on wanting to prevent chaos. It is unacceptable that hundreds of Polish judges would have to resign as a result of the Luxembourg decision and their judgments would be in question. What he does not say is that he is only concerned with those who were called under the aegis of his party.
It is an old political dream of Kaczynski to clean up thoroughly under the judge. He believes that even 30 years after 1989, they are still mainly recruited from old communist ranks and an arrogant reunification elite. This "caste" had to be put out of business.
And that's even a popular attitude in Poland. Indeed, the judicial system has weaknesses: poorly paid judges are faced with too many files, decisions are difficult to understand, and there have been cases of infidelity. President Andrzej Duda, also from PiS, says: "I am shaken by the mendacity of this environment." Imagine that Federal President Frank-Walter Steinmeier would assume that the German judges were lying. But Duda is in the election campaign and wants to be re-elected in May.
If PiS really sticks to the course and prevents a decision by the Luxembourg EU court from being implemented, you can expect trouble from Brussels. The Commission has long endangered Poland's rule of law under PiS. Even a procedure under Article 7 of the EU Treaty is pending against the country. In theory, Poland could lose its voting rights in the EU.
So far, however, threats have only remained. Warsaw does not have to fear real sanctions. Kaczynski has a free hand when he "masters" the constitution, as it says in Polish. That is his experience from previous years. He may even find verbal accusations from Brussels useful. He can once again present himself as a defender of Polish affairs against an encroaching EU.