There's nothing authoritarian about Poland's judicial reforms

It won't be pretty but the process is ultimately necessary for the country's future as a democracy.



Poland’s supposed turn away from democracy and its recent attempts at reforming its judiciary have caused consternation and agitation at home and abroad. However, thus far, Polish democracy is alive and well. In fact, it may be in the process of deepening and strengthening.

Democratization in semi-peripheral societies is fraught with risk. Disturbing the status quo often leads to conflict between elites and people. Such a conflict, absent a strong economy that allows for a soothing of tensions, can bring about instability and sometimes even authoritarian government. This especially occurs when a nation lacks the mature, stable civic institutions that can check overreaching government.

However, this process and its concomitant risks are ones Poles must undertake if they want a modern, democratic, and prosperous Poland. Heretofore, Polish institutions, including the judiciary, have been structured along premodern lines, holding Poland back from modernity and full-fledged democracy.

Power that is not accountable is the very definition of tyranny. Yet this was exactly how the Polish judiciary was structured after the 1989 transition. Judges recruit judges into the judiciary. Judges then elevate judges to higher positions in the judiciary. And judges are supposed to hold other judges accountable for their misdeeds. Unfortunately, they have been slow to react to cases of corruption both grand and petty in their own ranks. True, grand, and overt corruption among the judges has thankfully been waning and is now relatively rare when compared to the earlier post-communist era—but it still hasn’t been cleansed out of the Polish judicial system completely.

Judges have by now realized that permitting corruption among their own reflects adversely on all of them. In the past, they engaged in corrupt schemes such as issuing judgments during bankruptcy proceedings and transferring assets that would benefit a judge and his associates. This didn’t used to be punished but now it seems to have been weeded out. However, the whiff of impropriety and corruption lingers to this day—even among the highest judges of the land—given the history and lack of accountability for previous schemes and rackets.

The Polish Supreme Court has rejected transparency unto itself and for years has refused to fulfill freedom of information requests that would disclose contracts granting one company a monopoly to publish its judgments. It has also refused similar requests for disclosure of expenses on credit cards issued at taxpayer expense to the judges of the court. Even worse, nothing was done about a Supreme Court judge advising a friend on how to write requests to the Supreme Court in an upcoming case. Just recently the Supreme Court decided that disrobing a judge caught shoplifting is too severe a penalty and ordered a two-year pay cut instead. Let that sink in for a moment: the Supreme Court of Poland has deemed it okay for a shoplifting jurist to remain on the bench.

International audiences may have been told that democracy in Poland is under threat. We agree in full—but in our opinion, it is under threat from a judiciary that refuses to come clean. Some of our compatriots disagree. They think that things are best left as they have been, because they distrust the politicians of the current government. We distrust all politicians, but we believe Poland needs an honest and efficient judiciary, lest the perceived corruption and inefficiency lead to even higher levels of public distrust.

A judiciary that has total autonomy from both other branches of government and the people is a throwback to the premodern and the more recent communist past. For much of recorded history, civil peace and justice were imposed by a narrow self-recruited elite that regulated itself according to an internal code of honor. As long as this elite wasn’t too self-serving, it was a good deal for society. The aristocracy, after all, has given Poland a modicum of civility throughout the ages.

However, since the Enlightenment, the idea that power must be held accountable by the people has thankfully continued to gain currency. In fact, it is this growing belief that the capacity of society and the state to act grows with the degree to which power is held accountable that is a necessary prerequisite for modernization. When the citizenry is confident that officials are answerable to them, they will grant them more capacity to act. Poland is unlikely to progress unless its institutions, including the judiciary, are further subject to checks and balances that make citizens the ultimate arbiter of right and wrong.

To read the article in full, visit The American Conservative.