Dangers From Overdosing

When we catch a common cold, most of us take a Tylenol and get better within a few days. Typically we do not imagine that we can improve or quicken the effects by taking the entire package. Overdosing is particularly dangerous when it involves strong medicine to treat serious illnesses. It appears, however, that the recent proposals by Minister Ćwiąkalski to enhance prosecutorial power is an extreme example of this very type of overdosing. "Prosecutorial independence" - the main idea underpinning the proposed revolution sounds unassailable, such that few have had the courage to question it. However, we are gravely concerned about the potential consequences of excessive independence, particularly in light of the American experience with this experiment discussed below.

King Prosecutor General

The reform proposal, especially the redesign of the Prosecutor General (Prokurator Generalny), raises serious fears. The independent and unchecked power of such an official has no precedent in Poland's institutional system. It is true that we - voters - have not direct influence on who holds certain positions, such as that of the President of the National Bank of Poland (Narodowy Bank Polski), Commissioner for Human Rights (Rzecznik Praw Obywatelskich), President of the Government Accountability Office (Najwyższa Izba Kontroli), or members of the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji). However, in all these instances, there is at least the right of "electing the electors," viz., parliamentarians, senators, or the president. It will be different with the Prosecutor General. Under the statute, he is admittedly "appointed" by the President, but only from amongst two candidates nominated by the National Judiciary Council and the National Prosecutors Council. This arrangement means that one of the most important functions in a democratic country will be in the hands of an official selected by groups without any democratic mandate or legitimacy.

This is only the beginning of the troubles. The new Prosecutor General, separated from the Minister of Justice, will be appointed for a seven-year term - the longest amongst high-level public officials. During his administration, he will be effectively irremovable, except for a criminal conviction or a "violation of his oath." The Parliament will have the right to dismiss the Prosecutor General only if it rejects his annual report (which he will prepare himself) with a supermajority the same as that required to amend the Constitution - 2/3 votes. This specific requirement, nota bene, does not make any sense, since the statute creating the rule can be changed with a three-fifths majority, even under a presidential veto. Simply put, the Prosecutor General will have monarchical power. In particular, he will be able to appoint all lower-level prosecutors as well as to remove them - either without any restrictions (appellate prosecutors) or with the consent of the National Prosecutors Council whenever necessitated by the "interest of the service" (regional and district prosecutors). He will have at his disposal an autonomous part of the national budget, will prepare his own reports on all matters related to criminal procedure not specified in statute (which will then be issued by the Minister of Justice), and will have the authority to issue binding decisions regarding prosecutorial discretion, or for the affected parties - nearly binding law.

Rise and Fall of the Independent Counsel

On its website, the Ministry of Justice states that the proposed system "is a principle . . . governing in Europe and the United States." With respect to the United States, we can immediately report as American-trained lawyers, that the Attorney General here is appointed politically much as any other member of the cabinet, combines the functions of the chief prosecutor with the administration of justice, and can be removed at any moment by the President. This example illustrates, however, a deeper problem with the Ministry's arguments. Independence is not a binary choice, but rather a wide set of instruments enabling a sound balance between the goals of nonpartisanship and democratic accountability. In the attached table, we present ten such instruments. As is evident, established democracies in Europe and America have chosen various solutions to ensure the right balance, just as we decide whether to take one or two Tylenol pills, depending on the severity of our headache. No country has decided to take all pills at once, as is proposed by professor Ćwiąkalski.

There are, however, strong reasons to draw lessons from the United States, though undoubtedly not the ones desired by the Ministry of Justice. It turns out that relatively recently, Americans - with great relief - ended their twenty-year experiment, which should serve as a warning for Polish reformers. In 1973, the federal justice system also underwent a deep political crisis. When Archibald Cox, special prosecutor and a respected professor at Harvard Law School, began an intense investigation against President Nixon in the Watergate Affair, Nixon ordered the Attorney General, Cox's superior, to dismiss the overly-active prosecutor. Instead of executing the order, Elliot Richardson and his deputy resigned; the order was followed only by the third-ranking official in the Justice Department. The so-called "Saturday Night Massacre" led to an unprecedented political scandal and eventually to the President's resignation.

American political elites reacted to the Watergate trauma in a manner surprisingly similar to that witnessed today in Poland. Widespread consensus regarding the necessity of radical measures to make the special prosecutor apolitical led to the creation of the Office of Independence Counsel, which would have the mandate to investigate potential crimes by high-level administration officials. Appointed by three federal judges, the practically-irremovable Counsel had the power to conduct investigations without any budgetary or time constraints.

Dangers resulting from the unchecked power of the Independent Counsel began emerging during the investigation around the Iran-Contra affair. Several high-level officials in President Reagan's administration were charged with unlawful sale of weapons to Iran and transferring the resultant funds to the Contra rebels fighting against the communist government in Nicaragua. Lasting over seven years and at a cost to taxpayers of nearly $50 million, the investigation ended unsuccessfully. The Independent Counsel was criticized by many of partisanship and conducting a political crusade against the administration during a period that was monumental for the country near the end of the Cold War. A large number of investigations were not completed and several convicted officials received pardons from President Bush without much opposition in public opinion.

An even greater catastrophe resulted from the well-known investigation against President Clinton. Lasting five years, it cost $30 million and led to one of the gravest constitutional crises in American history. Instead of being able to focus on important problems of international affairs, such as the wars in the Balkans or the emerging issue of radical Islamic terrorism, President Clinton spent long months on the investigation and depositions into issues typically the subject of soap operas. The final report issued by Independent Counsel Kenneth Starr conceded that none of the initial charges constituting the grounds for initiating the investigation were proven; however, it described with trivial detail intimate relations between the President and Monica Lewinsky. In the end, the authority of the President's office was profoundly undermined. The Senate, however, notwithstanding being controlled by the opposing Republican party, found Clinton not guilty of the constitutional charge of "high crimes and misdemeanors."

In 1998, the editors of the Washington Post concluded that the Office of Independent Counsel had "almost no constituency." The statute authorizing it was allowed to expire with the same unanimity with which it was created. In practice, it turned out that an unaccountable and unchecked Independent Counsel, and his controversial and costly activities, brought more harm than benefit. At the same, it must be noted that all Independent Counsels were lawyers of the highest repute. Thus, the problem resided not in the selection of candidates, but in the very design of the institution.

Fourth Branch of Government

Based on this troubling experience from across the Ocean, one can draw several lessons. First, extreme independence of a single official can easily transform into absolute and dangerous power, which, as Lord Acton famously put, can "corrupt absolutely." In the rush to create "apolitical" institutions, one often forgets that democracy, notwithstanding all its weaknesses, is still the best form known to man of distributing power within a society. And this is not an issue of lofty phrases. If one concludes that the only way to ensure legitimate functioning of the prosecutor is to completely separate it from democratic influence, why cannot the same principle be applied to other areas of policy, where "dirty politics" have influence on our lives? Why should decisions to initiate criminal charges be "apolitical," whereas decisions to initiate tax investigations remain within the administration of the "political" minister? What distinguishes prosecutorial decisions from those involved in risking the lives of soldiers sent on foreign missions? Following the rationale of the reform's authors, the minister of finance or defense should also be appointed by experts. One cannot fix democracy's "ailments" by suspending it in arbitrarily-selected areas of social life.

Just how much the creators of the reform statute intend to undermine the fundamental mechanisms of democratic control over power in Poland is evident in the "Regulatory Impact Assessment,” available on the Ministry's website. The first sentence states: "Implementing the proposed statute will have an effect on the structure of political power by separating prosecution from the structure of the executive branch.” One must admit that this statement is shocking in its honesty. Indeed, it appears that one goal of the unprecedented form of selecting the Prosecutor General and his absolute powers is the creation of a new branch of government. There is a problem, however, because the still-binding Polish Constitution states unequivocally in its chapter titled "The Republic,” that the Polish political system "is based on the division and balance among the legislative branch, executive branch, and judicial branch.” Since the times of Montesquieu, this division is moreover deemed as the best possible guarantee that "sovereignty” will continue to "belong to the Nation” (Article 4 of the Constitution). The well-known arguments as to the deep underlying rationale behind this tripartite division need not detain us here. It is sufficient to observe that a central theme to this idea is the principle of accountability; in a tripartite division of power, each branch of government bears strong responsibility for its conduct. In the case of the legislature and the executive, each branch is checked by periodic popular elections as well as a mutual balancing of influence and control. In the case of courts, accountability does not result from an electoral mandate, but from a culture established over hundreds of years of a faithful application of the law and the personal independence of each judge.

It is a mystery to us what type of mechanisms of democratic accountability a prosecutor "separated from the structure of the executive branch" intends to develop. This "fourth branch of government" will not only lack a democratic mandate but also - in stark contrast to courts - will be tightly controlled in the hands of a single person, with a powerful apparatus under his hierarchical control. Other branches will have minimal control on the method with which the prosecutor executes his public functions.

No Need For a Revolution

Lest our analysis sound like an essay on the basics of political philosophy, we hasten to provide concrete examples. What would happen if the councils of judges and prosecutors make a bad choice? Such a mistake does not necessarily mean choosing a criminal, though we should note that under the proposed statute, Judge Marek Sadowski, the minister of justice in Marek Belka's government who accepted his post even though he caused a car accident, would have been undoubtedly the Prosecutor General until February 2007 when (after two appeals) there was a final judgment in his case. A bad choice can also involve an individual who is incompetent or simply lazy. Prosecution involves a gigantic structure, the management of which can constitute a challenge for even the most effective judge or prosecutor. Under the proposed system, the long tenure of a weak manager can delay the administration of justice for entire decades. Moreover, the statute guaranteeing a life-time salary for a departing Prosecutor General will not in the least motivate hard effort and good results. The example of Ewa Sowińska, the current Commissioner for Children's Rights (Rzecznik Praw Dziecka), should serve as a warning here.

Another problem results from the fact that an undemocratic selection of the Prosecutor General will determine the prosecution's priorities for many years. As Richard Posner - the celebrated legal thinker and a federal appellate judge - notes, the activities of any prosecutorial system depend on discretionary decisions as to which types of crimes should be prosecuted with greater or lesser intensity. The recent decision to drop the investigation of the "Rywingate" scandal in Poland or the secret "screening selection" list of passengers subject to detailed checks at American airports are just two of many examples of discretionary power, which prosecutorial agencies have even in "a democratic country under the rule of law" (Article 2 of the Constitution). One of the reasons for this state of affairs is the fact that, even in the wealthiest countries, prosecutors do not have unlimited resources enabling them to prosecute all crimes to the fullest extent possible. We would be deceiving ourselves thinking that an all-powerful Prosecutor General will determine his institution's priorities according to some "apolitical objective truth." In cases such as criminal law, in which our freedoms and rights are intertwined in a complicated maze, there is nothing obvious in the chosen decisions. This is why democracy was invented, such that the decisions would depend at least minimally on our collective, social choice.

Even given the excessive overreaction to the Watergate Affair, American lawmakers never even imagined to choose such a far-reaching radical solution as professor Ćwiąkalski's proposal. After all, the Independent Counsel had jurisdiction in only specific cases involving typically high-level officials. Here, the Ministry of Justice proposes to create an institution that is much more powerful and with even weaker social control than the American analogy described above and that will determine the fate not only of presidents but also the average Kowalski.

The Polish academia, non-governmental organizations and the parliamentary opposition should insist that the government back away from such radical, untested experiments without any precedent in established democracies. After all, the alternative is not accepting the relatively unattractive status quo. As we mentioned in the beginning, "independence" can be divided into smaller "pills;" separating the functions of Prosecutor General and Minister of Justice or special qualifications required of a candidate for the prosecutor's post need not be implemented in a single package along with the other proposals. In Poland, there is a tendency to throw oneself into costly and risky revolutions, instead of implementing smaller, gradual changes. In particular, based on the American example, one could include a "sunset provision" into the reform statute, such that the new system would expire after, say, five years, unless the Parliament decided to renew it. In this manner, one could test the new system and determine whether it is in fact significantly better than the existing one.