A number of literary comparisons come to mind when describing the political attempt of the ruling majority to seize control of the courts, thus showing that the problem is as old as the hills. Professor Ewa Łętowska aptly describes the mythological parallels in her book O mitach i prawie. The Shakespearean usurpation of the various Henrys (such as Henry VI, who wanted to ‘kill all the lawyers’), frustrated people like Macbeth or Hamlet’s uncle can also be mentioned. An association with Josef K.’s contorted network of bureaucratic traps in Kafka’s Trial or Ubu Roi drowning the judges in his madness so that ‘all goes well’ when he himself takes over judgment, immediately comes to mind.
But perhaps the best metaphor – which is understandable to all people of culture audiences of culture – is Tolkien’s trilogy, The Lord of the Rings, the possession of which gives power to gain full dominion over the earth. Entire generations of readers and viewers kept their fingers crossed for the fellowship that wanted to prevent this from taking place. Today, all citizens have to be part of such a fellowship. The acquisition of the rings by Sauron (whoever he is) which controls all the others would mark the end of the world as we know it – an agreement of man with man – a social contract – in which the majority and minority, with all their frictions and problems, live under one constitution, at least without destroying each other. The other alternative is Mordor.
Let us try to define the rings of the rule of law that the currently-ruling Sauron has taken over or wants to take over in Poland.
Constitutional Tribunal, or the broken Saruman
The Constitutional Tribunal is a key figure in all democracies; it is the personification of wisdom that is meant to block the majority should it want to destroy the minority in one way or another. Since the Second World War, after the nightmare of experiencing the effects of the rule of a German parliamentary majority, it was accepted that Tribunals were to be the shackles that restrain the madness of nations.
The Tribunal’s task is to block laws that are harmful to the community, even if the ruling majority wants them.
Therefore, after the 2015 elections, this majority immediately began to remove the tribunal’s restraints. During the first year, the struggle with the Tribunal was based on not swearing-in three elected judges, the election of stand-ins in their place and endless night-time amendments tearing down the Tribunal. At the end of President Rzepliński’s term of office, the rights of the vice-president of the Tribunal and the will of the majority of judges were breached, while the president appointed a new president of the tribunal in breach of even the new law. Next came the freezing of the former judges in their adjudication, juggling with benches and the election of active politicians from the ruling party to the Constitutional Tribunal. The Tribunal’s kitchen was ready to serve judgments for the rulers.
And we, like the people of Middle-Earth, could have counted on the wisdom of the Constitutional Tribunal – as they did on Saruman – for years. However, over time, its Orthanc – the impenetrable tower of Isengard – actually became Sauron’s ally and a tool in his hands. At the request of the ruling party, the separation of the terms of office of the members of the NCJ guaranteeing the smooth operation of the institution was deemed unconstitutional, which provided an alibi for its destruction. It will shortly probably be the same with the regulation on the continuity of the office of the Commissioner for Human Rights. High standards of legislation, provisions prohibiting discrimination and even judgments of the Supreme Court turned out to be in conflict with the constitution, even though the Tribunal only has the powers to assess statutes. In the present government-run Tribunal, a communist prosecutor will be the rapporteur in the case of the Commissioner for Human Rights, while a stand-in judge will be the rapporteur for a total ban on abortion.
The Polish Tribunal is perhaps the only tribunal in the world that represents the executive instead of controlling it. There is nothing for any minority there anymore.
Breaches of personal rights can now only be analysed from a European and not a constitutional point of view, provided that the Polish courts or the European Commission stand up for our fundamental rights before the CJEU. The European Court also has the power to stop bad laws. This is still left for us as long as we are in the European Union.
The prosecutor's office – the kingdom of the dwarves
In countries governed by the rule of law, the prosecution service prosecutes criminals and not their best judges, opposition politicians or citizens who are disobedient to the authorities. In such countries, the prosecution service is independent and prepares well-documented indictments that can also apply to the members of the ruling party and their friends. Poland no longer has such a prosecution service. There are a few, brave prosecutors associated within Lex Super Omnia, who the authorities are also trying to destroy like the judges, but the prosecution service, as an institution, constitutes the armed forces of the political party. In this case, we have completely returned to the communist models. The demotion and harassment of the best, most effective prosecutors went hand in hand with the promotion of ‘their own people’. Political investigations and absurd accusations of activists, political opponents and judges then began.
Arrests, such as that of the lawyer, Roman Giertych, go hand in hand with complete legal silence in the face of the offences of people related to the authorities or even those from within the authorities.
Everyone in Poland, from activist to farmer, can presently be arrested and charged for anything if he ‘disrupts and does not support’. This no longer has anything to do with the common good of all citizens.
The prosecution service, like Moria, has become a dark, empty place ruled by demons, dragons and huge spiders. Whereas the good dwarves roam around Middle-Earth instead of ruling this mighty kingdom.
The Supreme Court and ordinary courts – the fellowship of the ring and the last chance
The administration of justice and the judiciary is a heavy burden, but it is also a great power. Like the rings, this power tempts; it is a magnet, and that is why Sauron wants it so badly. Therefore, in parallel with the takeover of the Constitutional Tribunal and the prosecution service, an attack has been launched on the courts, although this requires far more effort from Sauron. While there are 15 judges in the Constitutional Tribunal, there are 10,000 of them in the courts.
Judges are usually quite young, open-minded people brought up in the new Poland. They are keeping their guard up, and we – my esteemed civil fellowship – only have them to thank that Poland has not yet been turned into Mordor.
The attack of the orcs on the judiciary was and is total: a take-over of the court presidencies by people who are not recognized by the milieu as authorities, the hate campaigns on TVP and on billboards, the disorganization of various procedural regulations, drawing of cases under the control of the Ministry of Justice, taking over the NCJ, the creation of a Kafka-like disciplinary machine in which every cog has the objective of destroying judges is recommended by the minister and, most recently, the Turkish model, namely simulating criminal matters for judges to revoke their immunity so as to effectively remove them, even though they are irremovable.
Moreover, judges were being expelled from the Supreme Court, a new president was chosen illegally, without the requisite majority. There are plans for further destruction, including the expulsion of perhaps all judges and the practical liquidation of the Supreme Court. Who knows what Sauron will think up next? No civilized country has performed such a suicidal operation of destroying its own justice system.
Even so, the resistance of the judges is continuing and will also continue because Polish judges are united and have tremendous support from their European colleagues and the fellowship of the civil society. Our judges, with their attitude, have given judges from other countries a real sense of pride in practising this profession, as well as responsibility for the fate of not only their own citizens, but also 500 million citizens of the Community. This could be seen, for example, at the March of a Thousand Gowns, for which judges from many European countries came to Warsaw.
Poland was the first country in history to face various misfortunes – war, communism and populism. But, historically, it is precisely a few, truly ideological people who have always saved us from final defeat. I believe this will also be the case now. Because even if the European Commission or the CJEU act slowly, and the politicians are counting on some rotten compromises, Polish judges associated with Iustitia, Themis and the Judicial Cooperation Forum, as well as an army of colleagues who admire them from other EU countries, will not abandon us. Polish and European judges are like one great river of European law and values. Sauron does not stand a chance of winning here.
Fellowship, let’s support the judges. Let’s defend ourselves, let us stand together against Mordor. Let’s not surrender the rings to Sauron or any fallen Gollums.
Paulina Kieszkowska - Knapik, Attorney-at-Law
The ‘Free Courts’ Civic Initiative