Polish Prime Minister Donald Tusk has now made it official: he and his government are applying the principles of “militant democracy” to defend liberal democracy against its right-wing opposition. And this is confirmed by his minister for justice, Adam Bodnar, who, on Friday, September 27, wrote on X that he would not acknowledge a decision of the Polish Supreme Court that invalidates his dismissal of the National Prosecutor last January, for lack of the President’s required approval.
The reason given by Bodnar to disobey that decision was simply that the three Supreme Court judges who issued that decision were appointed to their current post under the previous government coalition led by Law and Justice (PiS). Therefore, in his view, they are not real judges, but “neo-judges.”
The situation in Poland today is that the left-liberal government led by former European Council President Donald Tusk has been rejecting and violating rulings issued by both Poland’s Supreme Court and the Constitutional Tribunal, alongside lower-level rulings issued by those whom they call “neo-judges” (about one-third of all judges in Poland), but only when those rulings are not what Tusk and his left-liberal friends would like them to be. They did, for example, acknowledge the decision issued last autumn by such “neo-judges” sitting on the Supreme Court that validated the October 15 election results, allowing them to form a majority coalition against PiS and take the reins of government.
This is because the concept of “militant democracy” implies that liberal democracies should take all necessary steps, even if they are unconstitutional or otherwise unlawful, against those individuals, associations, or political parties that challenge the principles of liberal democracy. Obviously, those who are to decide which slogans or actions undermine the foundations of the “liberal” version of democracy are those who have the power to do so and act accordingly, that is, the government.
“We have to find strength in ourselves, not having efficient tools, our own strength and determination,” Donald Tusk said at the conference “Ways out of the Constitutional Crisis” on September 10, 2024. “After all, in the case of the executive branch, this is what we are paid to do, to take risks and make decisions that you all will sometimes question. I, in any case, will continue to make such decisions with full awareness of the risk that not all of them will meet the criteria of full rule of law,” the Polish prime minister further said.
So, once again, the leader of the Polish liberal camp is referring openly to the principle of transitional justice, which, he and his friends, including incumbent Justice Minister Adam Bodnar, have been waving since last year’s electoral campaign. In their view, this is necessary to restore democracy and the rule of law in Poland.
The Law and Justice-led United Right government was in power for eight years thanks to being twice entrusted by Polish voters with an absolute majority in the Sejm, in 2015 and 2019. President Andrzej Duda, who also won the presidential election twice in a row, in 2015 and 2020, is from the Law and Justice (PiS) party and will remain in his post until next year.
During those eight years of United Right governments, the left-liberal opposition made an incredible amount of noise, even getting the European Union to withhold tens of billions of euros of promised post-pandemic aid to Poland and to sanction their country with heavy daily fines. More precisely, before forming the coalition whose government was sworn in on December 13 with Donald Tusk as prime minister (for the third time), they had consistently accused the United Right of violating the principles of the rule of law that Donald Tusk now claims the right to violate himself.
A central point of the accusation against the United Right government was that it had changed how the 15 judges sitting on the country’s National Council of the Judiciary (Krajowa Rada Sądownictwa, KRS) were appointed. Those judges, who hold a majority in the 25-member KRS, are now elected by the Sejm in such a way that should allow some of those judges to be chosen by the opposition, but their election was boycotted by those who are today in government, so they have all been chosen by the former United Right parliamentary majority. Before the change, those 15 judges were appointed by the judicial profession.
The KRS is the body in charge of proposing candidates for judicial positions to the president of Poland. According to the law, it can also block the removal by the justice minister of the presidents and vice-presidents of the courts. The idea behind the 2017 reform of the judiciary was to give parliament – and hence Polish voters – an influence over who is in charge of supervising the judiciary, after decades of chronic corporatism that, since the fall of communism in 1989–90, had ensured, more often than not, impunity for the incompetent and the corrupted. It had also allowed the old communist judges to stay in place, often in top judicial positions, including in the country’s Supreme Court.
For the left-liberal opposition as well as for their political friends in Brussels, the United Right’s reform was, however, an attack on the independence of the judiciary, and in their view all the judges appointed after the 2017 reform now have to be removed, regardless of the constitutional principle of irremovability of judges.
Polish Prime Minister Donald Tusk and his Justice Minister Adam Bodnar presented on September 6 the assumptions for a draft law on the status of judges who were appointed or promoted to higher positions after 2017.
Under the planned arrangements, only judges for whom this was their first appointment after graduating from the National School of Judiciary and Public Prosecution will retain their status. As for the remaining group, some of the judges who were promoted to higher positions after 2017 will be returned to their previous positions and be subject to disciplinary procedures. Others, to remain in office, will have to make a statement that they regret their decision. They will then return to court and be allowed to compete again for various positions.
The announced bill, supposedly aimed at “restoring the rule of law” after the justice reforms voted by the Polish parliament in 2017, will affect about a third of Poland’s judges, i.e. some 3,500 judges. Regarding those 3,500 judges, this is an open violation of their independence.
Since President Andrzej Duda would doubtless veto such an unconstitutional law, Tusk also said on September 6 that the government would have to wait until after next year’s presidential election to proceed with the planned bill.
In the meantime, however, since the beginning of the year, there has been a wave of personnel changes made by Justice Minister Adam Bodnar at the head of the country’s most important courts, often under questionable legal conditions, and after taking control of the prosecution service nationwide following the unlawful replacement (done without the required approval of the President of Poland) of the National Prosecutor.
In order to revoke the president or vice-presidents of a given court, the justice minister has to first get the approval of this court’s college of judges, through a majority vote. If he fails to get this approval, he can then turn to the National Council of the Judiciary (KRS) which then has the opportunity to block the justice minister’s decision by a two-third majority vote. If it fails to do so, then the justice minister can proceed with his decision.
Instead of following this procedure, however, in some cases where a court’s judges had refused to greenlight his decision, Bodnar then suspended some of the judges sitting on that court and got the college of judges to vote again, but without their suspended colleagues, so that he could have a majority on his side.
In other cases, Bodnar just ignored the judges’ negative opinion concerning his intention to dismiss a court’s president, as was the case in February when he revoked Judge Piotr Schab from his position as President of the Warsaw Court of Appeal, which is the country’s most important appeal court.
Poland ombudsman Marcin Wiącek, who succeeded Bodnar in this post, has expressed doubts about the legality of the justice minister’s action. According to Wiącek, these procedures are questionable due to the lack of sufficient guarantees to protect court presidents and vice presidents from arbitrary dismissal before the end of their statutory term.
According to Polish law, the president and vice-president of a court may be dismissed by the Minister of Justice during their term of office in case of gross or persistent failure to perform their duties, or when their continuation in office is otherwise incompatible with the good of the administration of justice.
But in most cases, the motive given by Minister Bodnar to dismiss a court’s president or vice presidents was that they had been appointed after the 2017 reform or that they had given their support to a candidate for the reformed National Council of the Judiciary (KRS), and that in that situation their continuation in office is “incompatible with the good of the administration of justice.”
Between mid-December and mid-June, as per the information published on the website of Poland’s Ministry of Justice, Adam Bodnar started 79 procedures for the dismissal of presidents and vice presidents of the courts throughout the country, and he appointed 62 presidents and 49 vice presidents of district courts, regional courts, and appeal courts.
In July, Bodnar dismissed over a dozen presidents and vice presidents in Warsaw alone. Significantly enough, the vice president of the district court that had ordered the immediate release of opposition MP Marcin Romanowski resigned because of, as he said, excessive political pressure. Romanowski had been arrested by Bodnar’s prosecutors in violation of his immunity as a member of the Council of Europe’s Parliamentary Assembly.
These seemingly politically-motivated purges will have dear consequences not only for the independence of the Polish judiciary, which is now being violated openly in the name of “militant democracy,” but for ordinary citizens. One example is the thousands of cases concerning mortgage credits that were given by banks in the past denominated in Swiss francs, which caused the amounts to be reimbursed to inflate together with the later rise of the franc to the Polish zloty. In most cases, Polish courts, following rulings by the European Court of Justice, give satisfaction to the customers, forcing the banks to pay back big sums from those credits.
However, most judges of the so-called frank division of the Warsaw Regional Court were appointed after 2018. The proposed “cleansing” of the judiciary announced on September 6 is a real drama for many people ruined by the banks. Indeed, with the government questioning their legitimacy as judges, not only can the banks challenge rulings unfavorable to them, demanding that the rulings be overturned, but above all, there are going to be years of additional delays in the adjudication of cases. This is just one example, but the same will happen in many other fields of life and business, which by the way, is bound to negatively impact the application of EU law in Poland (an argument often put forward by the EU institutions to interfere with the justice system in countries like Poland, Hungary, or Romania, for example).
Political interference in the judiciary involves not only sticks but also carrots. There is, for example, a very worrying case of a Catholic priest, Fr. Michał Olszewski, who was arrested just before Easter in outrageous conditions and has been detained for over half a year now on very dubious charges, in what seems to be a politically motivated case.
This was done on the orders of a special team of prosecutors created by the unlawfully-appointed national prosecutor to investigate the use of money from the so-called Justice Fund under the previous government. To extend Fr. Olszewski’s pre-trial detention period after the end-of-August deadline imposed by the Warsaw Appeal Court, Bodnar’s prosecutor just added to the charges a very curious accusation of participation in an organised criminal group, based on the fact that, according to them, the justice ministry was indeed an organised criminal group under the United Right government. Because his foundation was granted a subsidy to build a centre for victims of violence, Fr. Olszewski is now being accused of laundering money from an organized criminal group.
Well, the lower court judge who bowed to the prosecutors’ request and extended Fr. Olszewski’s detention period despite the appeal court’s earlier decision, Judge Magdalena Wójcik of the Warsaw regional court, was promoted shortly after to the position of president of the 8th Criminal Chamber of her court, which is the biggest such court in Poland. Maybe this was just a coincidence, but it is worth noting that this court was among those whose president and four vice presidents were replaced by Justice Minister Adam Bodnar in July.
Donald Tusk and other members of his coalition openly say they do not acknowledge the legitimacy of the Constitutional Tribunal and hence will not apply its decisions. What is particularly worrying is that such open violations of our national constitution and the rule-of-law principles in the name of “militant democracy” are openly supported by the elites in Brussels.
One recent example of such support was how the Vice President of the European Commission for Values and Transparency, Věra Jourova, said to Bodnar in late August, during a public discussion at the Poland of the Future Campus organised by the Civic Platform of PM Donald Tusk, that he is doing a great job trying to fix Poland’s judiciary, and that she trusts him because he is ready to lose popularity. In the past, Jourova has made herself a name in the European Commission for pretending to defend European values and the rule of law in Poland and Hungary.
We now see better what she and other Commission members meant by European values and the rule of law: the values and the rule of her left-liberal camp in the whole of the European Union, regardless of democracy and the true rule-of-law principles.
Bartosz Lewandowski, attorney at law (Polish Bar Association in Warsaw), PhD, defence lawyer of Mr. Marcin Romanowski, also working on a regular basis with the Ordo Iuris Institute for Legal Culture
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