Benching Judicial Independence: The Poland Edition

Episode Notes

Transcript

@theBar

Benching Judicial Independence: The Poland Edition

01/02/2019

[Music]

Jon Amarilio: Hello everyone and welcome to CBA’s @theBar, a podcast where young and youngish lawyers discuss with our guest legal news, events, topics, stories and whatever else strikes our fancy.

I am your host Jon Amarilio of Taft Stettinius & Hollister, and co-hosting the pod with me today is our Executive Producer Jen Byrne of the Chicago Bar Association.

Hi Jen.

Jennifer Byrne: Hi Jon.

Jon Amarilio: So Jen, the interview with our guest today could not be more timely or relevant. We are joined by Mikołaj Pietrzak. Mikołaj is the Dean of the Warsaw Bar Association and a partner of the Law Firm of Pietrzak Sidor & Partners. He is a graduate of the University of Warsaw and Cambridge. Between 2010 and 2016 Mikołaj was the Chairperson of the Human Rights Council of the Polish Bar Council. In 2016, he was appointed by the Secretary General of the United Nations as one of five members of the Board of Trustees of the UN Voluntary Fund for Victims of Torture.

Mikołaj’s practice focuses in criminal law, constitutional law and the protection of human rights and I just learned that he often handles cases dealing with terrorism and espionage, which is super interesting. I hope we get to return to that.

Mikołaj, thank you for joining us today. Welcome to @theBar.

Mikołaj Pietrzak: Thank you. It’s a great honor to be here.

Jon Amarilio: So I want to dive right into it, because I think this is going to be really interesting and substantive conversation today. This summer Poland’s government engaged in a sweeping purge of the Polish Supreme Court, which has been widely viewed across the planet really as an open attack on the judiciary’s independence.

It sparked mass protests in the streets. It drew the attention, as I said, of much of the world, but before we get right into that, I think it would probably benefit our listeners if you could explain over the course of a minute or so the structure of the Polish judiciary, because I know it’s different, it’s more complicated than what we have in the States, right? We have a unitary structure, Trial Court, Appellate Court, Supreme Court, it’s not quite that easy in Poland, right?

Mikołaj Pietrzak: That’s an ambitious task. It takes most students of law in Poland about five years to understand that structure and you gave me two minutes. It is a Continental Law System, so it’s different than the one you will have in the United States and in Commonwealth countries and common law states, but we have state-appointed judges who do not come from elections, they are appointed by the President after being selected by a collegial body, consisting mainly of other judges, and there are three levels of courts.

The State Courts, you have the I guess the lowest level courts, the mid-level courts and the high level appeal courts, and then you have a Supreme Court. The Supreme Court does not have a constitutional review function, like it does in the United States; it’s a Cassatory Court, so it reviews cases in terms of their compliance with the law, but it doesn’t question the constitutionality of laws like the US Supreme Court does.

For that we have our Constitution, sets up a different kind of tribunal, which is the Constitutional Tribunal, and that court is solely designed to review the constitutionality of laws, to see whether the laws are constitutional and also compliant with international treaties, and that’s really where the crisis started when you look back over the last three years.

Jon Amarilio: Okay. And as perfect to transition as that is I am going to ignore it for just a moment, because I think it would also be beneficial to inform our discussion, to talk about generally what’s been happening with Polish politics over the last few years.

When I think of Poland I think of it is an example — really the example for countries seeking to escape from and emerge from the Soviet system and embrace Western democracy, but now it seems to be more closely aligning itself with countries like Hungary and other countries are experiencing far-right movements like Austria and to a certain extent in France, Germany and arguably the United States as well becoming progressively more — or I should say regressively more authoritarian, nationalistic, populist, anti-immigrant. Where did this all begin?

Mikołaj Pietrzak: Well, after the downfall of communism, 1990 is probably the best point from which we can — to judge that. We had about 28, 27 years of what you can only call a success story. There was a consistent development in civil awareness, the economy was on the rise even when around Europe you could see problems arising, Greece and Italy, and it was in all respects a democratic success story.

Then in 2015, during the elections, a populist party came to power labeling themselves as conservative traditional.

Jon Amarilio: This is the Law and Justice Party?

(00:04:54)

Mikołaj Pietrzak: Yeah, this is the Law and Justice Party; everyone knows them as the Kaczyński Brothers Party, and that is perhaps not relevant whether they label themselves as conservative or traditional, the key thing to understand is that they were populist and they were very focused on concentrating political power in the hands of the executive and legislative at the cost of all the safeguards and checks and balances that are meant to control the executive and legislative.

So in that sense they had a very nondemocratic agenda, and that’s important to understand because — not because of our political preferences, but because it led them to undermine things that are very important from the perspective of lawyers; the rule of law, the tribunals, the courts, the independence of these tribunals and courts, the system of protection of rights and freedoms, all because it was inconvenient for a central political authority to be checked by these mechanisms.

Jon Amarilio: So let’s go there. The Law and Justice Party comes to power in 2015, as you said, correct me if I am wrong on my timeline for the events, but as I understand it, they immediately engaged in what we call court packing in the US, filling the court with their cronies, for lack of a better word.

Mikołaj Pietrzak: I think court packing is perhaps too soft a word, because we see court packing in stable Western democracies, it happens, but the question is what happens with these mechanisms which are in place, the legal constitutional mechanisms which are in place in order to prevent that or hamper that kind of packing. They will generally act as a filter to impede the process of packing a court, whereas what we saw here is really an illegal takeover and paralysis of the Constitutional Tribunal.

Jon Amarilio: So how did that happen?

Mikołaj Pietrzak: Well, the party that had been in power for eight years at a last-ditch attempt to also pack the court at the end of its term appointed two judges which it should not have appointed. It was an obvious mistake, and what happened when the Law and Justice Party came into power, they passed the law withdrawing those two judges and setting apart —

Jon Amarilio: Do you know the Barbara Madsen case here?

Mikołaj Pietrzak: Yeah. And setting up three other judges in the place of judges who were already selected legally by the previous parliament. Now, that’s key to understand, so they appointed three judges to sit in the place of three judges who were legally appointed by the last parliament, in the previous term. And this case of course immediately went before the Constitutional Tribunal, who was the only body that could review the constitutionality of those decisions of parliament.

And Constitutional Court said, in express proceedings they said that all five of those appointments are unconstitutional by the previous parliament and by the current parliament. Now, the difference being that the previous party no longer in power said okay, we acknowledge that. It was our mistake. And that we acknowledge the decision of the Constitutional Tribunal.

Now, that’s what should happen in a democracy. Democracies make mistakes. They violate human rights, but they respect judgments which are intended to vindicate those rights and bring back balance. So they respect this controlling function of the courts.

Jennifer Byrne: I.e., the system of checks and balances?

Mikołaj Pietrzak: Yeah, that’s pretty much it, and that didn’t happen with the Law and Justice Party. The Law and Justice Party said well, we don’t agree with that. These three judges which we packed the court with, we insist they are judges and that gave them political control over the court. These judges were introduced into the building and since that time have started participating in the judicial process before the Constitutional Court. And the three constitutionally appointed judges appointed by the last parliament were never admitted into the building.

So we now have a terrible mess in the Constitutional Court, which has been delegitimized after mass protests, criticism by international bodies which monitor the fair trial rights and the rule of law, and as a result the Constitutional Court has no longer become an ineffective mechanism for constitutional review, to the degree that when lawyers want to litigate before an international court, they have to exhaust domestic remedies, they no longer, they no longer apply to the Constitutional Court, because for example, the European Court of Human Rights, the ECJ in Luxembourg have pretty much accepted that the Constitutional Court is no longer an effective domestic remedy.

(00:10:07)

Jon Amarilio: So they just see that as a futile requirement?

Mikołaj Pietrzak: Yeah.

Jon Amarilio: We have that here as well, you can argue, futility.

Mikołaj Pietrzak: Well, but what it means is we have permanently or for at least a few years, we have permanently lost this critical element of the system of checks and balances, which is the Constitutional Court. There is no body that has the right to check whether a law passed by parliament is constitutional or not. In theory that’s the Constitutional Court, but it no longer serves that purpose, because it’s been paralyzed and delegitimized and is politically controlled, and that opened the door as of 2016 effectively for the parliament to pass an incredible number of laws which would never have otherwise been passed, much less accepted, by the Constitutional Court because there is nobody there —

Jon Amarilio: To stop them.

Mikołaj Pietrzak: To stop them. So they are passing laws by the dozens these days which are unconstitutional, not only substantively, but also from the point of view of legislative process these laws are — they — the bill shows up in the morning, it goes through two houses of parliament by the evening and is signed in the night by the President. So there is no public verification scrutiny and as a result as you can imagine the laws are often not only shifty, shady, unconstitutional, but they are just a mess, because that kind of speed does not lend itself to proper legislation.

And most of these laws have one thing, one goal in mind, which is to limit the independence of the judiciary, to increase political control over the judiciary and limit the mechanisms which impede the executive and legislative in their influence over the rights and freedoms of individuals.

So you see a lot of increased disciplinary powers of the ministry, vis-à-vis the judges.

Jon Amarilio: Let’s go there. I was reading a little bit about that and it really caught my attention. So as I understand it, the government set up a new disciplinary body to, as they sell it, to check the power of corrupt communist judges.

Mikołaj Pietrzak: Well, let me stop you right there. There are no corrupt communist judges in the courts. All international reviews of the Polish system, of the judicial system, they have never found over the past 20 years for Poland to be any more corrupt than say France, Germany, Austria or the other Western democracy. That is complete rubbish and it’s populist garbage.

Jennifer Byrne: But has that been —

Mikołaj Pietrzak: That’s been the narrative —

Jennifer Byrne: –what’s been the pervasive narrative, I was going to say.

Mikołaj Pietrzak: That’s been the narrative. Actually, the Polish government paid taxpayers’ money into a private foundation established for this purpose and that private foundation for millions of taxpayers’ dollars in translation set up a billboard campaign two years ago and that billboard campaign was aimed to convince the Poles that their judges are corrupt.

So we would drive down the street, the highways in Poland and we would see billboards from our money saying it’s time to change these shifty judges. Just unheard of a few years ago, this kind of very open war with the judiciary.

Jon Amarilio: Yeah. Unfortunately, we have been seeing similar attacks over here as well, not quite as bad as that.

Mikołaj Pietrzak: Not quite as blatant perhaps.

Jennifer Byrne: Can I take this back by asking a question sort of about what conditions created these sentiments and how — I mean how are the people, how are the Poles reacting to this?

Mikołaj Pietrzak: That’s an excellent question. I don’t think it’s a question that pertains only to Poles, I think it’s a question of the level of civic awareness, the great influence that public and social media have on public opinion. The fact that these new media have made populists very strong in their access to people and their ideas, their opinions, and it’s always — judicial independence is a very hard sell.

When two people go before a judge, one of them will leave the courtroom unhappy and it takes a very mature democracy, mature democratic society a lot of civic awareness for people to understand that even if they are not happy with the decision that a judge made, they should defend the system and the independence of the judiciary because it’s ultimately the safest for the society and the individuals.

Jon Amarilio: It’s difficult to sell abstract concepts.

(00:14:55)

Mikołaj Pietrzak: Yeah, it is, especially for non-lawyers. And so that may make judges an excellent target. And at the same time, if you put that together with the fact that the judges are seen as the main mechanism which impairs the executive and the legislative from furthering the power, from, for example, introducing gerrymandering laws to prolong their stay in power, well, it’s easy for the executive in a not entirely mature democracy to generate hatred against the judges.

Keep in mind also that many continental systems like ours, judges are not appointed as a result of elections, so there is very often a sense of lack of legitimacy. Where did these judges come from? I didn’t vote for him. Why does he get to make decisions in our cases? And while elections of judges may generate questions which come up in the United States, for example, do we want to have judges under such pressure that they feel the need to issue judgments perhaps in line with public opinion because they want to be reelected, that’s one problem, but on the other hand, you have a problem, like we do, the lack of a — or a disconnection between the judges and society.

That made it easy to target the judges in Poland, in Hungary, it’s certainly in Turkey and in Italy, so it’s not just a Polish problem, it’s a problem everywhere where you have a strong populist government.

Jennifer Byrne: And so what was going on in the country, what were the pervasive sentiments in 2015 when this far-right leaning party came into power? I mean we don’t have to delve too deeply into that, but what was —

Mikołaj Pietrzak: There was a sense of frustration with a large part of rural Poland, perhaps the underprivileged, economically underprivileged, they felt that we have been in the European Union, we are selling the success story, but I am still poor. And I feel disenfranchised. I don’t feel represented. The same party has been in power for eight years and they got comfortable and there wasn’t much of a strong, for example, social democratic alternative.

So the only real alternative was this party who presented themselves as being very conservative and played on that conservative traditionalist model that gave them the support of the church, which is very influential in Poland, outside of the bigger cities, and that led them to power.

But you can see throughout Europe these populist movements gaining strong support. In Poland they happened to get enough support to get into power singlehandedly, but you see the strength of Le Pen in France, Orbán gained power, Austria got a far-right populist as a president. It’s happening throughout Europe, and I think not only in Europe, I mean America is cited always as a very good example. I think the difference between the European situations and the United States is in the United States you have attempts by the Trump administration to impose upon the judiciary, to criticize publicly the judiciary and to influence judicial process, but the judiciary is so strongly enshrined in the political and civil culture of the United States that there is a lot of push back.

You see journalists are very involved in scrutiny of candidates for the Supreme Court. You see nongovernmental organizations very active, litigating against, for example, the Muslim Immigration Ban. So there is a lot of push back that you didn’t see in Eastern Europe until it was a little too late.

Jennifer Byrne: Why do you think that is? Is it because it’s a relatively —

Mikołaj Pietrzak: I think there is democratic — it’s an issue of democratic upbringing. I always say this to students in Poland and in Eastern Europe, an American student will leave high school, perhaps he or she will have never read the Constitution or constitutional amendments, but they will have heard enough about their rights, about their civil liberties to have an intuitive understanding of things like freedom of speech, the right to a lawyer, personal freedom, and the right to go where I choose when I choose. These are concepts which American citizens understand, whereas they might not know the exact wording of the constitutional and its amendments.

In Poland and in the Eastern European countries, and I think also Western European democracies as well, I think there is not enough focus in the schooling system on young people developing an awareness of their rights, their freedoms, the meaning of their constitution, what certain fundamental principles mean to them and their safety vis-à-vis the state.

(00:20:08)

Judges and lawyers now in Eastern Europe have started focusing heavily on civic education, but before 2015 I think we weren’t aware of our failures have participated in the civic education and we are seeing the fruits of that failure right now.

Jon Amarilio: And with that Tocquevillian note, I think it’s a good time to take a break.

[Music]

Jennifer Byrne: This episode of @theBar brought to you by One Legal, America’s top-rated court filing solution. One Legal’s simple workflows and local support make it easy to file in large and complex courts like Cook, Marion and LA Counties. Chicago Bar members get up to 15% off. Learn more at onelegal.com/cba.

[Music]

Jon Amarilio: And we are back. So Mikołaj, you blew off my last question completely. I am really curious about this disciplinary committee that’s been set up. Would it be unfair to say that it’s meant to intimidate and chill the judiciary into compliance with the government to toe the party line?

Mikołaj Pietrzak: It’s one of several steps taken via unconstitutional legislation intended to bring about a chilling effect amongst judges. The signal that’s being sent is don’t say anything critical about these laws, don’t say anything critical about the government, and most importantly, when you make judgments, start thinking about whether or not you can be held accountable in disciplinary proceedings. Make sure those judgments are favorable for the state, and more importantly, for this political party. That is the signal that’s being sent.

They essentially set up a new chamber of the Supreme Court. They took away disciplinary competency from the existing Supreme Court structure and they set up a whole new chamber solely for this purpose and that gave them the opportunity to stack this chamber with all new judges.

Now, inquisitors, political officers, call them what you will, there is not a lot of respect in the legal community for the people who decided to participate.

Jon Amarilio: They are having trouble filling the seats.

Mikołaj Pietrzak: They are having extreme trouble and there is no — the reason is obvious, nobody who is a decent lawyer, a decent judge attaches any value to their reputation will participate in this process, they don’t want to be identified. So as a result you have got, this is generalization of course, but you have got people who are marginalized within the legal community, people who haven’t made a career, people who aren’t of the best esteem, people who themselves have been subject to disciplinary proceedings, these are the people that are being elevated to Supreme Court justices in this new disciplinary chamber. Now, it’s important to understand that they are being picked by the President.

So, the executive is the only body that is signing the decision on these new disciplinary judges and the disciplinary prosecuting judges have also been handpicked by the Minister of Justice and appointed without any process of verification by, for example, the National Judicial Council which should give opinions at least as to whether somebody should or should not become a judge. That body has also been unconstitutionally stacked.

Jonathan Amarilio: So, well, it seems like there’s quite a few of them for that I’m learning. So, not the best and the brightest to say the least medical cronies, what are their powers, what’s the consequence for judges who are not toeing the party line?

Mikołaj Pietrzak: Well, just last week we saw four judges who are very vocal, very outspoken in their criticism, not of the government but of unconstitutional reforms of the judicial system, they became famous, they’ve become symbols of the protest against these unconstitutional reforms. These four judges were suddenly all summoned to appear before the central disciplinary prosecuting judge in Warsaw. One of the two disciplining judges was hand-picked and selected by the Minister of Justice, and all four of them interviewed with regard to public statements that they made criticizing the laws regarding the reform of the judiciary.

Jonathan Amarilio: And you represent one of these judges?

Mikołaj Pietrzak: Well, yeah, that’s a caveat. I am representing Krystian Markiewicz who is the leader of the Iustitia Society, which is a society of judges, that’s once again very critical, very openly critical of the non-constitutional reforms.

(00:25:02)

Jonathan Amarilio: I bring that up because you are seeing it from the inside.

Mikołaj Pietrzak: It’s something I had never hoped to participate in. It’s a very sad event, but these judges are extremely courageous. They know that any mistake they made will be blown out of proportion, used against them not only just put them on to sidetrack them, but to delegitimize the whole process of criticism, delegitimize the society of judges which comprises almost 4,000 judges, and as a result, delegitimize fair and valid criticism of non-constitutional reform of the judiciary.

Jonathan Amarilio: What are the potential consequences? Are we talking about removal from office? Are we talking about imprisonment finding?

Mikołaj Pietrzak: The new law allows these disciplinary bodies to remove the judges from office to find them, to suspend them, they have a wide array, and of course, it has to go through the Disciplinary courts, but at the top of that ladder you have this new Supreme Court chamber, which is stacked with politically appointed judges, most of whom were marginalized or at the very least are not of high repute within their own legal community.

Jonathan Amarilio: So, it’s a fait accompli?

Mikołaj Pietrzak: Well, it’s a fait accompli, but we still have the European Court of Human Rights, and the Polish experience is that sometimes it’s better to be dismissed, to be repressed, but hold your head up high and stand on your principles rather than remain within the system and bend your will to the will of the executive.

So, I think there’s a lot of fight left in the Polish judicial community. There’s a lot of fight left among lawyers and I think there’s slowly increasing civic awareness as to the importance of the judiciary. There’s an ongoing effort by judges, lawyers, NGOs. I think a lot of journalists to educate society why we need in him independent judiciary and what that independence should entail and how these things were saying conflict with that independence.

Jonathan Amarilio: So, you mentioned the European Court of Human Rights —

Mikołaj Pietrzak: Yeah.

Jonathan Amarilio: — as an appeal option, what can that court do?

Mikołaj Pietrzak: Well, that court can issue a judgment, which is of course binding under international law, and with respect to an individual it’s a very important mechanism. Of course, the Polish State can choose to become like Russia, which pays lip service to the judgments of the European Court of Human Rights. It says, yes, of course, we’ve effectively performed the judgment or in the case of hundreds of judgments, it says, well, we’re not going to perform these, but then you become marginalized politically.

So, for Council of Europe States to disrespect judgments of the European Court of Human Rights that has tremendous impact, diplomatically, politically on the standing of a State, and ultimately that would weaken the Polish government and unfortunately the Polish State.

I think it’s important to stress that all these actions are intended to support the Polish people and their rights and freedoms, even when we criticize the State as such or the government and I think that’s a line that needs to be — we need to discern that because very often we will hear the public narrative that Poland is doing this and that. Poland is violating the principles of separation of power, of rule of law.

Well, it’s the Polish government, it’s the Polish legislative, it is not Poles. Poles are a very freedom-loving society and I think it needs to be stressed that this criticism is not addressed to Poles, it’s addressed against very specific laws that are being passed by the government, and perhaps against very specific actions by members of the Polish government. For example, press conferences during which a Minister of Justice publicly criticizes specific judges for specific judgments, I mean —

Jonathan Amarilio: I can imagine what that’s like.

Mikołaj Pietrzak: — that might be familiar to you and your audience.

Jonathan Amarilio: So, the European Court of Human Rights has no immediate enforcement mechanism. The Polish Supreme Court is now packed and doing what it’s told for the most part.

Mikołaj Pietrzak: Well, not in its entirety, but there are new justices being appointed and they are slowly gaining a majority that process is happening, the president claims that Malgorzata Gersdorf is not the Chief Justice. All the current justices and Malgorzata Gersdorf have made it clear that she is because she is subject not to the president’s whim, but to the Constitution.

(00:30:03)

Jon Amarilio: So, there is a very dramatic moment this summer that I’d like to talk about briefly where the Polish government, as I understand it, passed a law, a mandatory retirement law, all justices, judges, including Supreme Court justices have to retire at 65. It just so happened that a lot of their perceived opponents within the Supreme Court were over the age of 65 including the Chief Justice. Then Chief Justice said, this law is unconstitutional, she showed up for work the next day. Was she admitted?

Mikołaj Pietrzak: She was escorted into the building by a crowd of supporters. I had the honor of being there. It was quite an inspiring moment. Nobody blocked her from entering and she still goes to the court every day, it’s just the president says, well, she’s a very good law professor and she was the chief justice but from my point of view, she no longer is the chief justice. So, it’s a question of delegitimizing the jurisprudence of the Supreme Court by the president of the State.

As you can imagine, this is going to cause chaos. People want to know whether judgments in their cases are valid judgments and binding or not, and this is creating a massive sense of uncertainty just in the legal community and also among Polish society.

And we’re in the European Union, so this has impact on companies that are from other EU states that are doing business in Poland. This has impact on American investors. When they go before a court, they are going to want to know that their rights, economic rights, their commercial freedom that that is protected on par with the rights and freedoms of Poles, and they can no longer have that certainty. So, this is certainly going to impact the security of foreign investment in Poland as well.

Jon Amarilio: So, what I’m hearing from you is that with the Supreme Court at least progressively becoming more compliant. The ultimate solution to this is probably going to have to be no pun intended at the polls, during an election. Sorry.

Mikołaj Pietrzak: It took a 00:32:16.

Jon Amarilio: Yeah, I took a 00:32:16. When is the next presidential election?

Mikołaj Pietrzak: It’s not a question just for the presidential election, it’s the parliamentary elections. I think it’s 2020-2021. So, the elections, the State elections, the parliamentary elections and the presidential elections coming up in a year or two, they are certainly going to be attended by — I hope by a great number of Poles.

Jon Amarilio: So, you are hopeful.

Mikołaj Pietrzak: I’m very hopeful that we’ll get many people coming out for the elections. I think that’s the key to Democratic success. What I am worried about is the Supreme Court. We talked about this disciplinary chamber that’s being set up and packed in entirety by the president; well, they set up another chamber in the Supreme Court and that’s a special chamber for public affairs.

One of the key tasks of this new chamber which will be also packed entirely by the president without any previous judges will be to judge the validity of elections. There’s a saying in Polish that it doesn’t matter who casts the ballots, it matters who counts them.

And you’ve got a delegitimized new chamber of the Supreme Court which will be solely responsible for saying which circuits the election was valid in and where it was not valid. So, we’re very concerned that that might influence the elections, and for the reason that we talked about at the beginning, there’s no constitutional review mechanism, so we’re expecting a new law to be passed which will allow for gerrymandering, for other manipulations of the election process, and we’re worried that that will not be hampered by any constitutional court.

Jon Amarilio: So, just to wrap things up a little bit hopefully on a high note. I saw a quote from Lech Wałęsa, is that how you pronounce?

Mikołaj Pietrzak: Wałęsa

Jon Amarilio: Thank you, former president, Nobel laureate, and he said that he feared that this was backsliding into a possible civil war situation that Poland could be in another Ukraine. Do you see that it’s a possibility?

Mikołaj Pietrzak: Well, I don’t think that armed conflict is what we’ll be seeing. I do think that we’re seeing an atomization of Polish society, a destruction of solidarity and ties within society. I do see that there’s a radicalization of views and families are being ripped apart, those who support the law and justice government and those who are against it.

(00:35:02)

I don’t think civil war is what we’re looking at. I think we’re looking more at a destruction of all the things that hold a society together, common beliefs, common principles and mutual respect even when we disagree on specific political issues, that’s what we’re seeing fall apart.

If you’re on one side, you’re not on the other, and I think that is ultimately the most destructive effect of these last three years.

Jon Amarilio: We are seeing that same kind of tribalism here. Jen?

Jennifer Byrne: Well, I was going to ask, I think this is sort of an overarching question that could apply in other societies, ours included, what is sort of one moment or one thing or maybe it’s a series of things, but what can you point to as time or a decision in this process that if done differently could have changed the course of things, what could members of Polish society have done, what could members of the Bar of the judiciary done to have changed the course of events to prevent this from happening, if anything?

Mikołaj Pietrzak: There’s no easy answer to that as you can imagine, but I think once the crisis did start taking place, I think the attempt to seize, control or delegitimize, paralyze the Constitutional Court back in 2015-2016 that was key. If the Constitutional Court had been effectively protected against this delegitimization, against this political control, none of the further reforms, if you will, although that’s a euphemism, would have been possible because there would have been a body, a constitutional body, which could have effectively stopped these reforms. So, the fact that the government, the legislative was able to create at the very least confusion as to who is and who is not a Constitutional Court Justice, that was a pivotal moment.

250,000 people came out at one point on the streets that was incredibly inspiring to protest in support of the Constitutional Court, in support of its independence, and yet that wasn’t enough. When I look back, I think, could we have done more, could we have made a difference? I think there were little steps that perhaps the bars could have done, political opposition could have done, would they have hampered this process? I don’t think so.

I think when I look back the thing we failed to do was educate our society over the past 30 years, sufficiently educate them as to the meaning of the Constitution, its importance, the importance of the principles. Once again, citizens don’t have to know the words of the Constitution. They have to understand the concept and understand why they are important for society, for individuals, for a healthy democratic State, and I think we as lawyers fail to do that over 30 years, and perhaps if we had been persistent, society would have chosen differently, society would not have accepted to the extent that it did these populist arguments. And it would have been impossible for a populist government to seize control over the Constitutional Court.

Jon Amarilio: And with that moment of reflection and wisdom, we’ll have to take a very ill-timed break.

[Music]

Advertiser: This episode of @theBar brought to you by One Legal, America’s top-rated court filing solution. One Legal’s simple workflows and local support make it easy to file in large and complex courts like Cook, Marion and LA Counties. Chicago Bar members get up to 15% off. Learn more at onelegal.com/cba.

[Music]

Jon Amarilio: So before we wrap up today, we want to play a quick game with you that we call ‘Stranger than Legal Fiction’. Rules are pretty simple. Jen and I have both done some research. We found a real but strange law that still exists, it’s still on the books as we say, and then we’ve made another one up completely and we’re going to pull each other, and you, to see if we can distinguish strange legal fact from fiction. Are you ready to play?

Mikołaj Pietrzak: Yeah, the last two years have made it very difficult for me to distinguish between fact and fiction illegally in Poland.

Jon Amarilio: Yeah, well, the world has become a hall of mirrors, and with that, Jen, why don’t you lead us off?

Jennifer Byrne: Well, I’ll begin with the American law, which I recognize you’re probably not as familiar with, but I feel that we’ve got to take aim at both, and I’m going to represent America with this one.

So, the first law is California — well, they are actually both California laws that I’m referencing, one being the fake, one being the real your guess.

(00:40:02)

So first one, in California it is illegal to eat a frog that has died during a frog jumping contest. That’s proposed law number one.

Jonathan Amarilio: We’ve done that one.

Jennifer Byrne: I don’t think so.

Jonathan Amarilio: Well, I certainly haven’t.

Jennifer Byrne: I would remember that.

Jonathan Amarilio: Listeners right in. Okay, keep going.

Jennifer Byrne: The second is, it is illegal to eat a frog that appears on the California Department of Fish and Wildlife’s lists of threatened or endangered amphibians, which is real, which is fake, and I don’t know why I picked eating frogs because this isn’t a French episode.

Jonathan Amarilio: Well, then you just tell us that that one is fake.

Jennifer Byrne: But, they are both related to eating frogs.

Jonathan Amarilio: Okay, all right, yeah.

Jennifer Byrne: Under which circumstance basically is it illegal to eat a frog?

Mikołaj Pietrzak: I’m not sure of this. There’s the principle of the rational legislature, that’s one of the underlying principles of law in Europe.

Jonathan Amarilio: But it’s under a rational actor in economics.

Mikołaj Pietrzak: Well — but, it’s an underlying principle of interpretation of law in Europe, I’m not sure how it is. We assume the laws are rational and we interpret them in accordance with that assumption, and so, I’m going to use that assumption and that leads me to the conclusion that it’s the second one that’s real because there seems to be a rationale underlying protection of endangered species. If it’s endangered, you don’t want to eat it. Whereas the frog jumping contest, that kind of regulation seems less than rational; although, to be honest these days I wouldn’t be surprised.

Jonathan Amarilio: I’m going to go the opposite way, one, because I think conflict is more entertaining; but two, because I’m a big believer in behavioral economics and behavioral explanations for political science, and I think the less rational the more likely it is.

Jennifer Byrne: And you would be right –

Jonathan Amarilio: There you go.

Jennifer Byrne: — with that assumption because the Californians think that it is appropriate to legislate that eating frogs that have died during frog jumping contest is illegal, and there’s an explanation that I found for it. This health-code likely made its way into the books to protect competitors at The Calaveras County Fair & Frog Jumping Jubilee, a decades-old tradition in the gold mining town of Angels Camp. Tourists and jockeys compete to see how far their frogs can leap, and if they die you cannot eat them afterwards.

Mikołaj Pietrzak: I’m not sure even the European Union has regulated French cuisine to that degree.

Jonathan Amarilio: That’s saying something. Okay, round two, are you ready?

Mikołaj Pietrzak: I am not sure anymore.

Jonathan Amarilio: There you go. In the Polish town of Tuchyn, the portrayal of beloved fictional character Winnie-the-Pooh was banned on all public playgrounds. Option number two, in the Polish City of Lublin, it is illegal to hang drying laundry on Sundays in any area visible to the public, even on private property or land.

Mikołaj Pietrzak: Well, do you want to take a stab with this?

Jennifer Byrne: I’m going to take a stab and say that the Winnie-the-Pooh one is the real law.

Jonathan Amarilio: Why?

Jennifer Byrne: Based on the fact that I don’t know, Winnie-the-Pooh is a boring story and —

Jonathan Amarilio: Come on, he is a beloved international cartoon.

Jennifer Byrne: I don’t know. I’m just guessing that because it sounds more outrageous.

Jonathan Amarilio: Hundreds of millions of children grew up with Winnie-the-Pooh.

Jennifer Byrne: I’m going to go with your same rationale. It sounds more outrageous and therefore it’s probably real.

Jonathan Amarilio: All right, well, I can argue with that.

Mikołaj Pietrzak: I’m going to go with the Lublin one as the real law just to spite my esteemed colleague Hubert Bugajewski 00:43:45 from Lublin and suggest the irrational nature of the local laws in Lublin.

Jonathan Amarilio: So, Mikołaj, today has taught you anything it’s that rationality does not prevail in the law. The Winnie-the-Pooh law is actually the real one. The town legislature outlawed Winnie-the-Pooh because of his “dubious sexuality” and hermaphroditic tendencies with one town counselor explaining that Winnie-the-Pooh was totally inappropriate for children to watch because he walks around half naked all the time.

Mikołaj Pietrzak: So does Donald Duck.

Jonathan Amarilio: Yeah, that’s a good point.

Jennifer Byrne: A lot of cartoons do actually.

Jonathan Amarilio: Yeah, I don’t know why; they are just saving on ink or —

Jennifer Byrne: That’s a subject for a different podcast, I think.

Jonathan Amarilio: Okay, we’ll probably leave it at that and that will be our show for today.

I want to thank our guest, Mikołaj Pietrzak, Dean of the Warsaw Bar Association for this alarming but informative and important conversation. I also want to thank everyone here at the CBA who makes this machine run, including my co-host and our executive producer, Jen Byrne, and our sound crew Ricardo Islas and Steve Weirich.

Remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter @CBAatthebar. Please also rate us and leave us your feedback on iTunes, Apple Podcast, Google Play or wherever you download your podcast, it helps us get the word out.

Until next time, for everyone here at the CBA, thank you for joining us. We will see you soon @theBar.

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