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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/))

6 comments on “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)

  1. Dave
    January 15, 2019

    It’s a difficult area to cover in such a small article. The transformation in Poland in 1989 essentially involved discussions between the Communist government and an Opposition which was dominated by Communist agents, most prominently Lech Wałęsa, whose guilt is now well-documented.
    The first act of the incoming government was to state that all acts in law of the Communist regime were lawful. Everything flowed from there. Exceptionally little property restitution ensued. This issue came back with avengeance in recent years, with Europe’s biggest real estate scandal – implicating leading post-Communist politicians and their big city administrations and made possible by judges routinely returning property to people aged 130 years old. Value = EUR billions.
    Media pluralism scarcely existed until the “populists” were voted in and took over state TV from the legacy Communist families running it – then using it for “populist” propaganda, as the post-Communists had done for themselves for the previous 25 years. The pro-German post-Communists share complete dominance of the daily press with the pro-post-Communist German Axel Springer group.
    The senior judiciary is a Communist family affair, with spouses appointed to the Constitutional Tribunal and Supreme Court and a stranglehold on appointment held by people who announced themselves publicly to be a special caste. And as for their past … best summed up by the case of the head of the Supreme Court. Totalitarian from childhood, daughter of architects of the Stalinist legal system. The CJEU recently insisted that she return to post.
    Personally, vetting of the judiciary in 1989 should have been the way ahead, but the Communists were still in de facto control so this was impossible. Also, many of the records had been destroyed. 100% of judges were Totalitarians – it was a key pre-qualifier for becoming a judge. Sacking them now based on age was perhaps a silly move, but one designed to enable a fallback position – as the EU establishment decided in advance to make a special case of Poland. The system of appointing judges in Germany (where they incidentally sacked East German judges upon reunification) is indefensibly political in modern Europe, but that’s Germany. The CJEU will push further though, as major money interests and culture war interests are at play in Poland. Abuse of the libel courts by a self-interested judiciary played a key role in muzzling the very small independent press pre-2015 and perhaps this is the plan for the future. 90% of Poland’s exports are made by foreign-owned companies – courtesy of the 1989 transformation. Foreign domination of the economy is supported by German and post-Communist domination of the media … and domination of the judiciary by families that hit the big time under Communism is the cherry on the cake when the “populists” are voted out and the “Liberals” can finally fulfil its promise of dismantling the new welfare state.

    • Amir
      March 19, 2019

      I know also in Israel what a leftist dictatorship is. As juristic as in mass media. And I know well the word “populism” against everyone who try to execute the demanded reforms.

  2. prof. Andrzej rzepliński, warsaw University.
    January 15, 2019

    After Poland’s Attempted Purge of ‘Communist-era’ Judges, Do We Need New International Standards for Post-authoritarian Countries Reforming Their Judiciary?
    The purge of judges in Poland has been beginning in 2015. Equally, you can start in 2015 purge of post-feudal judges in Poland. In 2015, there were no one post-communist judge in Poland. No one who would be an enemy of free market economy or an enemy of ECHR catalog of basic civil and political rights. As in any other country you could meet in the judiciary brilliant judges, typical judges, and a small group of judges badly organized, lazy, or/and stupid, both in county courts, district court, court of appeals and also in the highest court. In any EU state you can find any example of such diversification. So what? Time is making its job. 30 years after.

    I am sure that it would be easier to find one judge with post authoritarian resentment in Germany in 1975 (30 years after) than in Poland (30 years later on). Not because Polish jurists were better impregnate for authoritarian their regime, but because there is no comparison between PL in 1989 and D in 1945. In addition, I do not trust in standards (by definition – very similar) offered to judges “the day after” for e.g. in Vietnam, RSA or in Venezuela.
    I can recommend you my book 49. Die Justiz in der Volksrepublik Polen. Dieter Simon (Vorwort). Frankfurt am/Main 1996 Vittorio Klostermann: and/or 51. Polen (1944-1989/90). Normdurchsetzung in Osteuropäischen Nachkriegsgesellschaften Einführung in die Rechtsentwicklung mit Quellendokumentation. Herausgegeben von Heinz Mohnhaupt und Hans-Andreas Schönfeldt. Frankfurt amMain 1997, Vittorio Klostermann

    • Dave
      January 16, 2019

      Mr Rzepliński is an ideal example of someone who is thoroughly tainted by his years of active support of Totalitarianism, not only as a long-standing member of the Communist Party who pledged allegiance to Soviet rule, but also as a person who – at the very least – played a very active role in ensuring that the full truth about the secret police murder of Fr. Jerzy Popieluszko did not come to light through his direct actions during the original highly flawed investigation by the Communist authorities in 1985 and in later post-Communist years. I will spare you the sorry, sordid details, though they are a matter of record (and can be found in Polish resources and counter-checked).
      The fact a person with such a dark history continued in any official role is a lesson in the abject failure of an authoritarian regime to transform into one governed by justice.

      • Amir
        March 19, 2019

        You are right. No real justice in Poland.

  3. Pingback: As You Like It | Verfassungsblog

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