Canadian Lawyer

16 A U G U S T 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m Shortly after forming the government of Poland, PiS packed the country's Consti- tutional Tribunal with party hacks to make sure the tribunal didn't get up to mischief. (The tribunal's job is to decide whether gov- ernment actions are constitutionally per- mitted.) Then, in July 2017, PiS launched a multi-pronged frontal attack on Poland's judiciary. First, it proposed that members of the National Judicial Council, which chooses the country's judges, be selected by parliament rather than by other judges. Second, it proposed that the heads of lower courts be appointed and dismissed by the minister of justice. Third, it proposed that the minister of justice be given the power to fire members of the Supreme Court. There was widespread protest in the streets of Poland's cities. Poland's president, Andrzej Duda, initially threatened to veto two of the bills put forward, but on Dec. 20, following cosmetic changes, he signed the legislation. He explained in a speech: "What is hap- pening is a deepening of democracy. The judges will no longer rule themselves. They aren't some extraordinary caste; they are servants of the Polish people." Poland is a member of the European Union. The EU's executive arm, the Euro- pean Commission, took a dim view of the Polish government's attack on the judiciary. When Duda signed the legislation, the EC said that Poland was "putting at risk fun- damental values expected of a democratic state by allowing political interference in its courts." It invoked Article 7 of the European Union treaty, the so-called "nuclear option," and issued a formal warning to Poland, beginning a process that could lead to the country losing its voting rights in the EU and being denied financial transfers (which are considerable). PiS retorted that the EC was "elitist and condescending." The situation in Poland, and the Poland/ EU impasse, has gone from bad to worse. This past July, in a dramatic move, the Polish government forced the retirement of one-third of the Supreme Court judges (those over the age of 65), including the court's president, Malgorzata Gersdorf; once again, there were mass demonstra- tions by the Polish people. Lech Walesa, the leader of the Polish Solidarity movement that ended communism in Poland, a for- mer president of the country and winner of the l983 Nobel Peace Prize, said in an oland's governing party, ironically named Law and Justice (Prawo i Sprawiedliwość, or PiS), took power in October 2015. Like many populist right-wing parties, it regards the judiciary as an enemy. The party's leader, Jaroslaw Kaczynski, has condemned what he calls "legal impossibilism," a mysterious and vague term that apparently means exercise by judges of inde- pendent constitutional power. What's the Polish solution for legal impossibilism? Judges must be made to bend to the will of the people as interpreted by elected politicians, no matter how suspect the election that brought them to power. T R O U B L E D W O R L D O P I N I O N @philipslayton SCOTT PAGE Poland's populist assault The judiciary is a favoured target for Poland's governing party By Philip Slayton P COUNTRIES SUCH AS FRANCE AND GERMANY PRIZE DEMOCRACY, THE RULE OF LAW, PLURALISM AND THE RIGHT TO DISSENT. COUNTRIES SUCH AS POLAND, HUNGARY AND ROMANIA EMPHASIZE NATION, FAITH AND FAMILY.

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