Jan van Zyl Smit: After Poland’s Attempted Purge of ‘Communist-era’ Judges, Do We Need New International Standards for Post-authoritarian Countries Reforming Their Judiciary? (Part I)

Editors’ note: This is the first of a two-part contribution, the second part of which will appear on the blog tomorrow.

For most of last year, the government of Poland maintained that legislation which effectively dismissed 27 Supreme Court judges (a third of the Court) by lowering the age of retirement was necessary to deal with the continued influence of the ‘Communist-era’ judiciary. A few judges who remained in office from before the 1989 transition were said to be responsible for allegedly widespread judicial corruption, nepotism and inefficiency. The government faced months of international criticism for its actions, and large-scale domestic protests, before it suddenly relented on 21 November 2018 and rushed through amendments to reinstate the ousted judges.

The reversal followed an interim order of the EU Court of Justice, which required Poland to allow the judges to resume their duties temporarily while the Court determined a challenge brought by the European Commission. In fact the amendments went further by enabling the 27 judges, one of whom was the President of the Supreme Court, to serve out their original appointments in full.

Two perspectives on the purge and its reversal

What should one make of the Polish government seemingly giving up its effort to ‘de-Communise’ the judiciary, after defending it so strenuously on the international stage? Two very different readings are possible.

A sympathetic explanation of the reversal would be that the government was determined to remove the oldest cohort of Supreme Court judges to improve the integrity and performance of the apex court, but then realised that it was about to hit a brick wall in the EU Court of Justice. The Court differs from other EU fora in which Poland has been able to shrug off proposals for Rule of Law sanctions by relying on its ally Hungary to veto them.

‘Judges will protect judges,’ would be the cynical version of this view. In truth, legal reasons made it very likely that the Court of Justice would find against Poland. Having recently decided that the independence of judges in national courts is an issue falling within the scope of EU law, the Court was expected to invoke international standards of judicial independence to assess the Polish situation. The principle of security of tenure was obviously implicated. Some international instruments refer to the ‘irremovability’ of judges, though removal is permitted in exceptional cases either for reasons of incapacity or when a judge is found to have committed serious misconduct. Whatever the formulation, dismissing judges en masse by lowering the retirement age clashes with this principle. The Polish government may not have accepted the applicability of the principle in the context of ‘de-Communisation’, but it felt forced to concede when it saw that the EU court was likely to enforce it.

The other, more critical view of recent events is that the ‘de-Communisation’ claim was merely a pretext for interference in the courts or, if genuine, that it formed only a small part of the government’s wider quarrels with the judiciary.

Plenty of evidence supports the second view. Compared with its statements aimed at foreign audiences, the government’s domestic arguments for judicial reform have reportedly focused less on the Communist past. Rather, they have been characterised by a general hostility to the separation of powers underlying Poland’s broadly liberal 1997 constitution, as well as more specific accusations that the current judiciary are in cahoots with a social and economic elite which the governing Law and Justice party (Prawo i Sprawiedliwość, PiS) has often railed against. The ‘reforms’ themselves are notorious, involving extensive transfers of power to the legislature and the Executive with regard to the composition of the National Judicial Council and the selection and disciplining of judges. At the same time, changes to the membership and functioning of the Constitutional Tribunal have made it more difficult to bring constitutional challenges against legislation or government action.

A fundamental issue in post-authoritarian transitions

I agree with commentators who warn that, even after the restoration of the Supreme Court judges, judicial independence in Poland is still gravely threatened by the many other institutional and administrative changes that have been made to the court system. However, this blog will not discuss the complex impact of those changes, some of which are still being implemented.

Instead, I want to reflect on the attempted purge of ‘Communist-era’ judges in the Supreme Court because the episode raises a more general issue about authoritarian-era judges in transitions to constitutional democracy.

In some ways, it is puzzling just how deeply the PiS government and its critics disagreed about the mass retirement or removal of Supreme Court judges. After all, both sides presumably agree that the Rule of Law requires trustworthy judges who are not compromised by their involvement in abuses by the previous regime, or enmeshed in networks of political patronage or corruption. However, there is substantial disagreement about what methods may be used to pursue this goal.

In legal terms, the government and its critics take different views of the principle of judicial security of tenure. Should this principle be applied to authoritarian-era judges, either strictly or at all? In Poland, the time that has passed since 1989 and the government’s evident hostility to an independent judiciary are complicating factors. But what about countries just emerging from authoritarian rule and struggling to build a constitutional democracy with judges inherited from the previous regime?

De-Nazification, lustration and vetting of judges

Many countries have had to grapple with this problem. In post-war (West) Germany, judges were screened and became subject to dismissal for active involvement in the Nazi party and the perpetration of its crimes, even if their conduct would have been lawful at the time. After 1989, post-Communist countries in Central and Eastern Europe debated the ‘lustration’ of public officials who had connections with the regime or the secret police. Different lustration policies were adopted in different countries. As far as the judiciary was concerned, these ranged from extensive dismissals in the Czech Republic to the automatic retention of judges in Romania and Bulgaria. It was not always a binary choice between dismissal and retention. In some countries, lustration involved the exposure of the past political activities of judges without necessarily leading to official sanctions. Other countries took the radical step of declaring all judicial posts vacant, and leaving former judges to compete for reappointment against newcomers (more on this below).

‘Vetting’ is increasingly used as an umbrella term for personnel reforms that aim to address the integrity, and sometimes also the competence, of public officials in the context of a post-conflict or post-authoritarian transition. It is recognized as a form of transitional justice that may be critical to preventing the recurrence of human rights abuses, particularly in the justice and security sectors.

Countries where judges have been vetted since 2010 include Kenya, Ukraine and Albania (where the process is still under way). In Kenya, the post-conflict constitution of 2010 became the vehicle for a vetting process that the legal profession and civil society had long demanded in order to address political patronage and systemic corruption in the courts. Kenya also demonstrates that judicial vetting is not an exclusively European phenomenon. Other examples exist, such as the screening of Argentinian judges in the 1980s after the end of the military dictatorship, or the ‘de-Ba’athification’ of the Iraqi judiciary from 2003 onwards as part of wider reforms of state personnel under the US-led occupation.

Iraq’s experience of vetting, particularly in the security sector, became a byword for the destabilizing consequences of losing skilled personnel and antagonizing some to the point of joining the armed resistance. Yet even while the Iraqi processes were attracting criticism, both the UNDP and the UNOHCHR issued operational guidance on vetting in 2006 which endorsed its use in a range of state institutions, including the judiciary. And vetting continues to be popular in countries debating how to strengthen or rebuild their systems of government. For example, the vetting of judges was recently mooted in the context of the democratic spring in Ethiopia, with the experience of neighbouring Kenya cited as a model.

What are the implications for Poland?

The recent attempt in Poland to remove judges associated with a previous authoritarian era is clearly not unique. The question that arises is whether such action can be justified and, if so, what guidance is available on issues of the design and implementation of lustration, vetting and similar processes for dealing with the authoritarian-era judiciary. I discuss this question in Part II of this contribution.

Dr Jan van Zyl Smit is a Senior Research Fellow at the Bingham Centre for the Rule of Law, British Institute of International and Comparative Law. The author gratefully acknowledges support from the Arts and Humanities Research Council which has funded on-going research referred to in this post through grant number AH/R005494/1.

(Suggested citation: J. van Zyl Smit, ‘After Poland’s Attempted Purge of ‘Communist-era’ Judges, Do We Need New International Standards for Post-authoritarian Countries Reforming Their Judiciary? (Part I)’, U.K. Const. L. Blog (15th Jan. 2019) (available at https://ukconstitutionallaw.org/))