The “march of a thousand robes” in Warsaw on January 12 sent a clear message to the Polish government – judges will resist any attempts to be gagged or controlled.
More than 30,000 people, including Polish judges and their counterparts from across Europe, rallied against a draft law that could see judges punished if they criticise government-backed judicial reforms.
After being rejected on January 17 by the Senate, the draft law will return to the lower house of parliament, the Sejm, on Wednesday, where legislators from the governing right-wing Law and Justice Party (PiS) hold a majority.
Polish judges, lawyers and activists fear ongoing attempts to interfere with the judiciary could endanger the country’s hard-won democracy.
“What is particularly worrying is that government is looking for excuses to get rid of judges,” said Monika Frackowiak, district court judge in Poznan and member of the board of MEDEL, an association of European judges.
Amnesty International named Frackowiak as one of 30 judges who have faced disciplinary harassment. She was first targeted when she spoke about the importance of fair trials at a summer festival.
The Disciplinary Chamber of the Supreme Court, a body launched in December 2017 to sanction judges over their judicial decisions, answers directly to PiS and is considered particularly controversial.
Under the draft law, judges who criticise the government’s judicial reforms could be punished. Judges have previously been sanctioned for decisions such as referring cases to the European Court of Justice.
The European Commission has said there is a “systemic threat” to the rule of law in Poland.
In 2018, a new law meant 40 percent of judges were forced to retire early.
Freedom House, a US-based government-funded NGO, has said the “sheer breadth and depth of measures already taken in recent years by Law and Justice means that Poland’s judicial institutions have been captured”.
In 2019, Amnesty reported on the Prosecutor General’s increased powers, which led to the demotion, punishment and removal of some judges.
Some who have retired say they were forced to do so because they were critical of the government.
If the bill passes, criticism of the reforms could be interpreted as “political behaviour” and therefore would incur punishment.
The debate around judicial independence has triggered concerns about Poland’s EU membership.
Dariusz Mazur, judge of the regional court in Krakow and spokesperson for the Association of Judges, said: “The possibility of punishing judges for referring cases to the European Court of Justice in fact excludes Poland from the legal system of the European Union which – sooner or later – will result in Polexit.
“It is one of the goals of the EU is to defend its citizenry from the abuse of national governments in terms of preserving judicial independence, which is one of the core components of the rule of law.
“The government is going to introduce an authoritarian system under which the state’s authority is built on the fear of citizens who are deprived of efficient legal protection from the abuse of power.”
According to Freedom House, the clash between PiS and “European values” could lead to a referendum on membership of the bloc.
But according to Marcin Warchol, deputy minister of justice, criticism of the draft law is unwarranted and the government simply wants to “avoid anarchy and chaos”.
Over the past years, everything that was built is being destroyed in the name of populism, and the vision of the ruling party leaders.
Agnieszka Blazowska, Polish attorney
The National Council of the Judiciary (NCJ), a body established under the Polish Constitution, is tasked with nominating judges and reviewing ethical complaints against them.
The NCJ was reconstituted in 2017, with parliament made responsible for appointing judges as opposed to members of the judiciary.
Critics said this violated the principle of separation of powers.
But Warchol supports the new NCJ, saying: “There are cases where judges elected by the ‘former’ NCJ declare an election of judges by the restructured NCJ null and void.
“This means that they are invalidating the legal status of their colleagues.”
He said he former model of judicial appointment is being controlled exclusively by the judges themselves “without any external agents being able to influence these processes.”
Warchol explained that the draft law has been amended according to EU standards.
“For example, the term ‘sanctions for political activities’ was amended to be ‘sanctions for public activities that are incompatible with judicial independence’,” Warchol told Al Jazeera, adding that polls suggest broad public support for the draft bill.
Despite resistance to the government’s proposed changes, the need for judicial reform is widely recognised.
“What we need is greater transparency, efficiency and modernisation, not the changes the government is making which will result in government having full control of the judiciary,” said Frackowiak.
The judiciary is not the only institution PiS has taken an interest in.
In 2017, the ruling party signalled it wanted Polish media to support its nationalist message by passing a law to allow the government to appoint the heads of the public broadcaster and other state-owned media outlets.
To Karolina Wierczynska, a professor of law at the Polish Academy of Sciences, the current situation transcends traditional left-right or Catholic-communist divisions.
It is “a conflict between tyranny and democracy. Tyranny is represented by PiS and democracy is represented by all those groups which PiS describes as enemies of the current government.”
PiS came to power in 2015, winning a majority in the Sejm, putting it in the strongest position a party had ever enjoyed post-communism.
Agnieszka Blazowska, Polish attorney and member of the Warsaw Bar Association, said since then, PiS has been attempting to control judges.
“Judges carrying out the judicial function must be free of any influence,” she told Al Jazeera.
“One cannot say it is a sudden clampdown. It is a well-planned battle for control of Poland’s judiciary.
“I was born in the early 1980s, so I remember the process of building the solid, democratic country which Poland was after 1989. Our dream became true on May 1, 2004 when Poland joined the EU or as many of us said, ‘returned to the European family’.
“But over the past years, everything that was built is being destroyed in the name of populism, and the vision of the ruling party leaders.”