On December 15, 2017, over 330 partners from leading domestic, regional, and international law firms in Poland signed an open letter to Polish President Andrzej Duda asking him not to sign the two acts sent him earlier that day by the Polish senate.
The proposed legislation has been characterized by many both within Poland and outside the country as an overt attempt by the ruling right-wing Law and Justice party to seize control of the judiciary and as a threat to judicial independence in the country.
The December 15 open letter is unusual — but not unprecedented. It follows in the footsteps of a similar letter sent to President Duda this past July asking him to veto three similar proposals. At the time, strong reaction to those controversial draft laws across many sectors of Polish society, including the legal community, led to protests on the streets of Warsaw and other major Polish cities. Eventually, in the face of significant opposition to the proposals, President Duda vetoed two of the three acts, while signing the third into law.
Five months later, those two previously-vetoed acts — the National Judiciary Council Act and the Supreme Court Act — were redrafted by the Polish parliament and returned to President Duda for his approval. Like their predecessors in July, the bills, if enacted, would result in the retirement of almost half of all current Polish Supreme Court judges and the removal of current judges from the country’s judicial council, tasked with — among other things — vetting, appointing, and promoting judges.
Reaction to the second attempt has been more muted than the first time around. Nonetheless, lawyers and members of civil society both in Poland and abroad oppose the bills, and three days after the lawyers in Poland published their open letter a statement on the American Bar Association website from President Hilarie Bass expressed her concern that the proposed laws would “violate the constitution of Poland, in addition to failing to meet international standards regarding the independence of the judiciary.”
President Duda has thirty days to act on the matter. Because the situation in Poland is being closely monitored both by the EU and by other right-wing governments in neighboring countries, and because the lawyers’ open letter represents a dramatic entrance into the political arena by a cross-section of the Polish legal community, the significance of the decision transcends the purely topical.
The Signatories Speak
Monika Sitowicz, Partner at Dentons in Poland, coordinated the effort to prepare and publish the December 15 open letter. She acted, she says, because “I believe — and I believe this is not only my view, but the view of most lawyers practicing law in this country — that the recently proposed changes are moving us in a really bad direction; we are losing an independent court system, and I felt I needed to do something about it.”
Sitowicz says that, in preparing the letter, she and her peers were forced to move quickly. “The Senate voted on Friday evening, and 15 minutes later we sent the letter to make sure it reached the President before he signed the laws. It was done overnight really, because the speed of the legislation process means we didn’t have as much time to discuss it as we would want.” As a result, she says, even though the December letter has more signatories than the July letter — 330 compared to 280 — it still does not represent the full extent of opposition to the proposed laws in the legal industry. “Just partners from major law firms signed,” she says. “But the number would be even greater if we had more time.” She’s quick to point out that “we have support from Bar Association and a long list of academics as well.”
Sitowicz sighs when she’s asked whether she believes the December protests will lead to the same result as those in July. “The trouble this time is that the Polish parliament was voting on a Presidential draft. We’re back to square one — back to where we were in July — but because it’s a Presidential draft it’s a bit more difficult this time.” As a result, she says, “to be honest, I don’t think it will cause any miracle or any significant reaction from the president.”
Still, she is not giving up. “We didn’t have much hope in July either,” she reflects, “so we’re keeping fingers crossed, and we’re trying to get as much support as we can. We hope the President will at least consider the views and be open for discussion.”
Marcin Aslanowicz is one of three partners from Wolf Theiss in Warsaw who signed on to the letter, and he says he and his colleagues “came to the conclusion that we have to speak out and make our voice heard.” And he is categorical in his opposition to the proposed laws. “The currently proposed legislation is harmful. It will not improve the system and it will not improve civil procedure in Poland. Importantly, the adoption of the new provisions is contrary to current legislation and relevant provisions of the Constitution.”
And Aslanowicz claims that the decision to sign the letter was not made lightly. “Obviously no reasonable attorney would like to be involved in a political battle — because we’re not politicians. So we only get involved in this way when we think it’s absolutely necessary.” In fact, he says, “this is only the second time in my 20 years in practice I’ve ever done this — and the first was six months ago.”
Like Sitowicz, Aslanowicz draws hope from the success of this past summer — though, like Sitowicz, he doesn’t ultimately expect success. “The movement against the proposed legislation then was not effective just because of our letter, of course, but because of other protests as well. Still, our voice was heard, and the regulation was not adopted. So we very much hope the same thing will happen this time, though we’re not very optimistic.”
Finally, Noerr Partner Arkadiusz Ruminski shares the assumption of fellow signatories Sitowicz and Aslanowicz that the December open letter will be less effective than the one published in July. He remembers that “there were massive protests this past summer — hundreds of thousands of people protesting all over Poland. This time, perhaps because it’s winter, or because people are bored, people aren’t paying so much attention.” He reflects. “The same laws that brought hundreds of thousands of young people to the streets — the Snapchat Revolution — is not generating the same number this time. People are so frustrated and tired that they don’t even follow the news anymore.” As a result, he says, sadly, “I must say that I do not believe it will change anything. I don’t think [Duda] will veto them this time.”
Regardless of the result, Ruminski believes signing the letter is important, calling it “more a moral and ethical thing to do.” He says, “I wanted to feel honorable to wake up in the morning … I don’t want to go on the streets, I’m a peaceful person, but I wanted to feel good about who I am and what I do, and let people know what’s happening.”
Editor's Note: On December 21, after this article was published, Polish President Andrzej Duda, as expected, signed the two bills reforming the country's key judicial bodies into law. In doing so he emphasized that the bills before him differed significantly from the drafts he vetoed this past summer. He also stated that he was "disgusted" to hear opponents to the laws, including those from the judicial community, suggest that the new laws infringed upon judicial independence and politicized the justice system -- and he claimed that in fact the new solutions democratized the state.
Under one of the new laws, the National Judicial Council's 15 members will be chosen for a four-year term by the Sejm (the lower house of parliament), and not by the judicial community itself, as was previously the case. Each Sejm caucus will be entitled to name up to nine candidates, and a Sejm committee will draw up a list of 15 names, with each caucus having at least one candidate among them. The lower house will then vote on the list, with a three-fifths' majority required. If such backing is not garnered, the Sejm will vote again on the same list, but this time an absolute majority will be required.
The second new law reforms the Supreme Court by making every valid ruling of a Polish court — including past verdicts going back 20 years — subject to appeal ("an extraordinary complaint") to the Supreme Court. In addition, two new chambers will be set up at the Supreme Court to deal with (in the first) extraordinary control and public affairs, and (in the second) disciplinary matters. The new chambers will include lay judges elected by the Senate. The second new chamber will treat disciplinary cases involving judges and other legal professionals. Finally, the retirement age for SN judges will be lowered from 70 to 65, although the president will be empowered to extent that limit.
Image Source: Website of the President of Poland