Judicial independence is a cornerstone of democracy as we know it; a system of justice that is free from political interference has the capacity to be truly just and unbiased. This is a system that works best in an already stable environment, such as Canada. The more politically stable an environment, the more likely it is that the justice system can exercise their privilege of maintaining independence.
But, what happens when a given state does not have the advantage of a long-standing free judiciary? What happens when a post-authoritarian state transitions into democracy and must deal with the consequences of a tyrannical past? This is the backdrop of Poland’s recent struggle with its own judicial branch, which has led to criticism from the European Union.
To set the scene, Poland was occupied by a Soviet-backed government from 1947 to 1989, which completely restructured the nation’s political landscape into that of a communist puppet state. Unlike the cleansing of authoritarian influences that occurred following the Second World War, Poland’s communist government was overthrown with democratic elections. However, with this lack of total revolution, some faculties of the communist government remained in the Polish system. Many communist-era judges remained in office.
This is where the issue of compromise comes in – should judicial independence be disregarded in some cases, if it means the removal of authoritarian influence in the courts? This is certainly a catch-22 of democracy – a democratic nation should respect judicial independence, but a nation cannot be democratic if its highest judges were appointed by an authoritarian regime.
Jan van Zyl Smit of the British Institute of International and Comparative Law points out the real issue of this situation is how the judges are removed, not if they are removed. Where both sides of the Polish political landscape generally agree on the need for a free judiciary, the disagreement rests on how the ruling party used the issue of purging communist judges to gain political power.
The Polish political landscape is highly complicated and difficult to understand without the requisite historical and cultural knowledge. That being said, one generalization can be safely made: Poles do not want communist judges. The difficult question for Poland will be how the political parties can accept compromises and work together to secure a more democratic system. Importantly, this relies on not falling into the trap of having a de-facto, one-party state.
Looking at the situation, it becomes obvious how sensitive a subject judicial independence has become. Partisans will argue their opponents support communism or fascism, but such opposition leads to little progress – both the ruling party and the opposition have to come together and cooperate to secure the country’s future.
Poland will not be made democratic through one-party rule, nor will it do so by accepting authoritarian elements of the past. Rather, a consensus approach is needed within the nation in order to work together towards the common goal of a free and democratic republic.
Featured image provided by Lily Inskip-Shesnicky.
