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9 April 2018updated 04 Aug 2021 11:26am

Why lowering the retirement age of judges shows Poland is sliding towards authoritarianism

An estimated 40 per cent of judges will be affected, and they will be replaced by government sympathisers.

By Freddie Hayward

“I want the European Commission to be assured, to be convinced that our judicial system is more independent, is more objective, is more transparent.” Speaking in January, this is how Poland’s Prime Minister Mateusz Morawiecki, from the hard-line Law and Justice Party (PiS), attempted to calm EU nerves about his government’s radical reforms of the judiciary. 

The controversial reforms of December 2017, which sparked a threat of sanctions from the EU, have come into practice.

Last Tuesday, the age of mandatory retirement of Supreme Court judges was lowered from 70 to 65. A reduction in the retirement age may seem like a benign administrative reform, but in Poland it will increase the politicisation of the courts and expand the government’s power. 

Why? Because an estimated 40 per cent of the court’s 86 judges will be affected, and their empty seats will be filled by those who are sympathetic to the government. The reforms of December 2017 mean that parliament, where the PiS have a majority, will control judicial appointments.

The reforms are especially worrying when placed in the context of the court’s powers: the Supreme Court decides whether presidential and parliamentary elections are valid.

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In December, the lower house passed a law that allows parliament to appoint members of the Electoral Commission. Some critics have argued that these reforms give the government the incentive and means to influence elections. 

“The most worrying thing is that the changes introduce scope for political influence in appointing electoral officials,” said Lukasz Lipinski from the Warsaw-based think-tank Polityka Insight.

The government has also attracted criticism for the introduction of anti-abortion laws, state interference in the media and the infamous “Holocaust laws” which prohibit describing World War II concentration camps as “Polish”.

Poland’s president, Andrzej Duda, is aligned with the PiS. He has trumpeted the similarities between the reforms and other Western democracies. “Please check in how many countries the executive power has an influence on the selection of judges,” he said.

Yes, it is true that many democracies have judiciaries partially appointed by the executive. But to suggest that the PiS is making Poland’s democracy more like its Western counterparts would be a mistake.

It is often easy to forget the youth of Poland’s democracy. It does not have the same depth of democratic convention, tradition and institutions as countries like the UK – the ability of the PiS to implement these reforms only proves that.

Poland is also unique because of its geopolitical position. Occupying the narrowest point in the North European Plain between the Baltic Sea in the north and the Carpathian mountains in the south, Poland has often been seen as a gateway to Russia. With Putin posturing to reclaim the buffer zone that Russia once had, whether through annexation or political pressure, Poland’s stability and commitment to the EU and NATO is crucial.

This isn’t to say that Poland will now look to Russia. In fact, the PiS have led calls for harsher sanctions against Russia and a greater Nato presence in Eastern Europe.

But with Poland looking more and more like its Eastern neighbour, the future may see a Poland with more in common with Moscow than with Brussels. Now at least, the dispute with the EU over these judicial reforms will only please Putin.

In terms of EU unity, Brussels is in a difficult position. When the EU chastised Poland for considering the reforms last July, it fed nationalist sentiment which persuaded President Duda to support the bill. The more the EU tries to prevent Poland’s democratic erosion, it seems, the further Poland is prepared to go. This week’s changes will embarrass the EU. A change in the retirement age has probably never had such significance.

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