The Independence of the Judiciary in Poland: Reflections on Andrzej Rzeplinski's Sadownictwo W Polsce Ludowej (The Judiciary in Peoples' Poland (1989) [Article]

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The Independence of the Judiciary in Poland: Reflections on Andrzej Rzeplinski's Sadownictwo W Polsce Ludowej (the Judiciary in Peoples' Poland (1989) [Article]

Item Type Article; text

Authors Frankowski, Stanislaw

Citation 8 Ariz. J. Int'l & Comp. L. 33 (1991)

Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ)

Journal Arizona Journal of International and Comparative Law

Download date 30/09/2021 17:15:25

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Link to Item http://hdl.handle.net/10150/659476 THE INDEPENDENCE OF THE JUDICIARY IN POLAND: REFLECTIONS ON ANDRZEJ RZEPLINSKI'S SADOWNICTWO W POLSCE LUDOWEJ (THE JUDICIARY IN PEOPLES' POLAND (1989)

Stanislaw Frankowski*

I. INTRODUCTION

The role of the judiciary within a political power structure and, in particular, its relation to the other branches of government, has always been a thorny and sensitive issue in countries of "real communism." On the one hand, communist rulers found it useful to create the appearance of retaining the "bourgeois" concept of judicial independence as a subterfuge for legiti- mizing their autocratic, in some instances even totalitarian, system of power. At the same time, however, they have always advanced the principle of the "leading role" of the Party as the fundamental tenet of their ideology. Despite all the scholarly effort, it proved impossible to devise a plausible theory which would diffuse the conflict between the officially proclaimed ideal of judicial independence and the Party's hegemonic role. As a result, most theorists dealing with the question of judicial independence in communist societies resorted to a set of carefully crafted phrases, obscuring rather than revealing the nature of the conflict. For example, in 1986, the question of the judiciary's independence received the following treatment in a widely used text: Judicial independence should not be equated with judicial discretion. A judge may decide a case only on the basis and within the limits of binding legal rules expressng the state's interests. . . . The judge's duty to "distribute justice impartially" must be seen in connection with his duty to distribute justice "in accordance with the interest of the People's State". . . . Impartiality. . . does not mean . . . the isola- tion of the judiciary from its duty to protect the socialist system of power . . . . Contrary to the bourgeois theory of the judiciary's political neutrality . . . in no instance may ajudge ignore the political relevance of the case under review. Since the laws' substance and aims are political, since deciding case on the basis of such law is not a

* Professor of Law, Saint Louis University School of Law. LL.M. 1962, Ph.D. 1968, J.S.D. 1976 University of Warsaw, Poland; LL.M. 1973, New York University. The author has certified the accuracy of the Polish-language bibliographic information. I wish to express my gratitude for the comments received from Professor Jesse Goldner (St. Louis University). I also wish to acknowledge the assistance of Mr. Henry Luepke of St.Louis University School of Law (class of 1991). Arizona Journal of Internationaland ComparativeLaw [Vol. 8

mechanical activity. . . the judicial function requires the high level of political consciousness and engagement in addition to proper education and positive personality's traits. All this is required to allow a judge to decide a case independently and, at the same time, apply correctly . . . legal norms.' In short, there is no contradiction between the judiciary's independence and its obedience to the Party. Against this background, Dr. Andrzej Rzeplinski's book on the independence of the judiciary in the Polish People's Republic (as the country was officially named between 1944 and 1989) emerges as truly unique.2 It is a highly-critical, passionate, but, at the same time, objective and well-docu- mented study, written in the author's homeland during the final years of General Jaruzelski's regime. Since all attempts to publish it by a state-controlled publishing firm proved unsuccessful, the author, a University of Warsaw professor, decided to go "underground." The book appeared in the early summer of 1989, in "second circulation," printed clandestinely by an unofficial, private publishing firm without the required approval of the state censorship office (technically a crime). By that time, however, the Polish political scene had been radically transformed: Solidarity, once again legal, had easily triumphed in the June 1989 elections to both houses of Parliament; Tadeusz Mazowiecki, a close associate of Lech Walesa, was about to form the first non-communist cabinet in Eastern Europe. Poland's arduous jour- ney from the Soviet-style communism into Westem-style democracy had begun. Suddenly, almost overnight, Rzeplinski's book became a study of an historical nature. In a somewhat sketchy introduction, the author juxtaposes two models of the relationship of state power vis-A-vis the judiciary. The first model originates from Montesqieu's theory of separation of powers. Rzeplinski recalls the French philosopher's contention that no freedom exists where the judicial branch is not separated from the other two branches of government. Thus, only when this separation has been attained may a citizen be protected from the potentially oppressive state's power; only then may the country be ruled by law, and not by men. The competing model, adopted in Soviet doctrine and practice and imposed on all other communist societies, stems from Lenin's thesis of the unity of state power. Under this approach, later perfected by Andrei Y. Vyshinsky, Stalin's most trusted and prominent jurist, the "will of the working people" is the source of all power. Since the elective representatives to the legislative branch are chosen by the people, there is neither need for a separation of

1. T. FucHs, A. LOPATKA, M. RYBICKI & W. SKRZYDLO, USTROJ POLrrYCZNY POLSKIEW RZECZYPOSPOLITEi LuDowEJ (POLITICAL SYSTEM OF THE POLISH PEOPLE'S REPUBLIC) 286-7 (1986). 2. A. RZEPLiNSKi, SADOWNICTWO w POLSCE LuDowm (THE JUDICIARY IN PEOPLES PO- LAND) (1989). 1991] The Independence of the Judiciaryin Poland powers nor for any limitations on the legislature's supreme power.3 In reality, though, it is the Communist Party which rises above all the state structures, including the Parliament, and governs the country without any external restraints. The unity of power doctrine thus serves to justify the Party's "leading role." Consequently, the judiciary is treated simply as an ann of the Party, as part of its coercive apparatus. The judiciary's actual role is to protect the interests of the "ruling class" (i.e., the Party elite), not the interests of those who are governed (i.e., people). As put forth by Lenin himself, courts are, by their very nature, "class courts" and must be told exactly what is expected from them and what they are allowed to do.4 Thus, the idea of an independent and politically neutral judiciary expected to protect citizens from the State, typical of Western liberal thought, is vehe- mently rejected as conceptually flawed (the state power is unitary and indivisible) and unrealistic in its application (judges are nothing but servants of the "ruler"). According to Vyshinsky, courts must behave and do behave as merely one more "transmission belt" of Party policies. Therefore, judges must be, first and foremost, experienced political activists. 5 At the same, he solemnly proclaimed that "[o]nly the Soviet court, the court of the socialist- worker peasant state, expressing the will of the entire toiling people in the Soviet Union, is truly independent in the authentic and direct sense of the ,6 word" In theory, judges are given functional independence which means that while deciding a particular case they should not be subjected to any external pressures. Thus, most communist constitutions proudly proclaim that judges 7 (but not the judiciary!) are independent and subordinate only to the law. However, as Dr. Rzeplinski convincingly demonstrates, in everyday practice even this narrowly-defined independence was illusory. It is simply impossible to secure judicial independence in deciding particular cases, when the entire judiciary is designed to function as a tool serving the interests of the ruling Party elite; the judiciary's political subservience will necessarily be reflected in a specific judicial decision. Bluntly put, when deemed politically expedient, the political apparatus will inevitably use its arbitrary powers to influence the resolution of a concrete case. Dr. Rzeplinski's principal message is thus very clear and straightforward: the independence of the judiciary may be effectively secured only in a society based on the traditional Western ideals of the rule of law and separation of powers.

3. A. Y. VYSHINSKY, THE LAW OF THE SoviEr STATE 321-22 (1948). 4. RzFu'iNSKi, supra note 2, at 7. 5. Id. at 8. 6. VYSHINSKY, supra note 3, at 514. 7. See e.g., art. 155 of the Soviet Constitution of 1977 or art. 62 of the Polish Constitution of 1952, reprintedin 18 CONSTITUTIONS OF THE COUNTRImS OF THE WORLD (A. Blaustein & G. Flanz eds. 1990). Arizona Journalof Internationaland ComparativeLaw [Vol. 8

II. APPLICATION OF LENIN'S MODEL OF THE JUDICIARY

In subsequent chapters of his book, the author surveys the implementation of the Leninist model during various periods of Poland's turbulent post-war history. Understandably, the Stalinist era (1944-1955) is given particular attention. It was during this period that the Soviet socio-political system was brutally imposed on a nation spiritually belonging to the West. Transforming the criminal justice system immediately became one of the primary tasks of the new regime. Special courts, staffed by politically-trusted judges and applying special procedural rules, were created overnight to handle most major crimes. To make the system absolutely foolproof, most political offenses were transferred to the jurisdiction of military courts which were made separate and independent from the regular court structure. At the same time "unreliable" pre-war judges were gradually eliminated from courts of general jurisdiction and replaced by a new breed of Party activists, who usually lacked a thorough legal training. A 1946 Decree authorized the Minister of Justice to dispense with the requirement of university legal training if a candidate for judgeship demonstrated his competence through professional; scholarly or political activity. For instance, it was sufficient to graduate from one of several special legal academies, run under the auspices of the Ministry of Justice. Between 1946 and 1952, over 400 Party-selected young activists completed special training courses, lasting from 6 to 15 months; these "graduates" became full-fledged members of the judiciary. By the end of 1949, over 800 pre-war judges were dismissed because of their political unreliability. A new Department of Judicial Supervision was created within the Ministry of Justice to allow the executive branch of the government to watch over the formally independent and separate judiciary. In general, the Party distrusted the judiciary because of its perceived political liberalism stemming from the pre-World War II era when Poland was a Western-style democracy. As a result, all judges became subject to various forms of political indoctrination, including compulsory ideological training. Judges, as well as prosecutors and defense attorneys, were required to attend special seminars on the guiding ideology of Marxism-Leninism- Stalinism. By May, 1945, when World War II in Europe was hardly over, three thousand lawyers had already participated in such seminars. 8 It was reported by the end of 1945 that over fifty percent of prewar judges had already left, but there were still complaints that the "administration of justice is perhaps the only department ...which has not been refreshed by new forces." 9 By the late 1940s, the Communist regime seemed to be firmly in control of the judiciary. To dispel any remaining doubts, the Minister of

8. Frankowski, The Procuracy and the Regular Courts as the Palladium of Individual Rights and Liberties - the Case of Poland,61 TULANE L. REV. 1307, 1325 (1987). 9. Jodlowski, Nowy departament Ministerstwa Sprawiedliwosci, 10 DEMOKRATYCZNY PRZEGLAD PRAWNICZY (DMocRATInc LAWYER'S SURVEY) 10 (1945). The Independence of the Judiciaryin Poland

Justice warned in 1949 that "while during the first period we were satisfied

with a mere declaration of loyalty ... , today loyalty is not enough. Today, active participation is required."' 0 Several important legislative changes introduced in 1949 and 1950 in- fused many typically Soviet concepts into the Polish criminal justice system. In particular, the government gained the right to seek reversal of a final judicial decision by lodging the so-called extraordinary appeal. This move created a legal vehicle enabling the executive branch (the Ministry of Justice) to supervise the daily activities of the judiciary and to intervene in specific cases that had not been decided in accordance with the Party's policy. Further, the Supreme Court acquired the power to issue Guiding Directives, binding on all lower courts. As shown by subsequent history, the Directives were used with one purpose in mind, namely, to limit the judiciary's discretionary power in accordance with current needs, as perceived and defined exclusively by the Party leadership." Finally, apowerful, hierarchically-organized procuracy was created; it was made separate from all other state 2 bodies.1 From the early 1950s on, following the practice common within the entire Soviet bloc, the law was used by the Party apparatus primarily as an instrument to effectuate current policy. By that time the country's power structure had become ossified; the hegemonic role of the Party was accepted by all other officially recognized political entities. Understandably, in such a situation the idea of the judiciary's independence was unacceptable both in theory and practice. Poland's criminal justice system began to be used as a means of brutal repression of a broadly defined opposition. Repression was aimed at various groups: those considered loyal to the London-based prewar government, including former soldiers of the underground Home Army; Polish Army veterans that fought at the Western front; functionaries of the pre-war state apparatus; and even those who had relatives in the West. In the Cold War climate of paranoic suspicion, charges were even being filed against the regime's supporters, including high-level Communist Party members. By then, the Ministry of Public Security, created in July 1944 immediately after the communist seizure of power, had become a separate body, not subject to any external control. Any appearance of judicial independence was openly rejected. Judges were simply treated as all other civil servants; they were hierarchically-organized and bound to follow their superiors' instructions. Predictably, as Dr. Rzeplinski documents, in this dark period of Poland's post-war history, judges were not able to resist the pressure coming from

10. 6-7 DEMOKRATYCZNY PRZEGLAD PRAWNICZY (DEMOCRATIC LAWYER'S SURVEY) 94 (1949). 11. S. Frankowski, Polish Supreme Court Directives as Sources of Criminal Law, in ANGLO-POLISH LEGAL ESSAYS, 56-74 fV. E. Butler ed. 1982). 12. Frankowski, supra note 8, at 1318-23. Arizona Journalof Internationaland ComparativeLaw [Vol. 8 political power-centers. They meted out many death sentences and long-term imprisonments, although they were well aware of the accused's innocence. Stalin's theory of the intensification of a "class" struggle in countries building a communist system was officially accepted in Poland. As a result, the undisguised "class" nature of communist justice came prominently to the forefront. Politically motivated mock-trials became a common occurrence. "Secret sections" were created at various levels of the military as well as the regular judiciary to handle the most politically sensitive cases. Ad hoc panels, sometimes staffed not by judges but by Ministry of Justice officials, decided cases in absolute secrecy and usually on the spot, that is, within the prison where the "culprit" was being detained. Needless to say, such practices were in flagrant violation of the formally binding pre-war Code of Criminal Procedure of 1928. In most instances, investigatory officers of the omnipotent Ministry of Public Security fabricated evidence and tortured suspects to extract confessions. Soviet advisers, usually acting behind the scenes, played a major role at every stage of criminal proceedings. The investigation of most politically sensitive cases was conducted by a special military counter-intelligence unit. This so-called Military Informa- tion was headed by a Soviet colonel, Dymitri Voznesensky, working closely with Colonel Antoni Skulbaszewski, his compatriot within the Main Military Procuracy. Another Soviet expert was "attached" to the Supreme Military Court. In the early 1980's, Edward Ochab, one of the top Party leaders of the Stalinist era, confessed to a journalist: "In my opinion they were all Beria's people."'13 The office of Military Information as a whole was ultimately subordinated to the Ministry of Defense (Konstantin Rokossow- ski, a Soviet war hero, appointed Marshall of Poland in 1949, headed the Ministry between 1949 and 1956). In the most serious cases, a special commission of the Politbureau (the highest Party body) would first decide the outcome of the proceedings, including the penalty to be meted out. The judge, assuming the role of a ventriloquist's puppet, would then merely announce the verdict. Such practices, aptly characterized by Dr. Rzeplinski as "manual steering" of the judiciary, exemplify the Party's blatant disregard for legal etiquette. These practices followed the Soviet pattern. In 1951, the Politbureau adopted a resolution urging law enforcement organs to "rely to a greater extent on Soviet experiences, to apply the Soviet methods and the Bolshevik work style."'14 Simultaneously, a top Ministry of Justice official instructed the judiciary that the principle of judicial independence must be interpreted to mean that "judges . . .are required to act in accordance with the law,

13. T. ToRANSKA, "TfHEM." STAUN'S PotusH PuPPErs 50 (1987). Lavrenti P. Beria headed the Soviet security apparatus between 1939 and 1953. Shortly after Stalin's death, he was summarily tried and executed on orders of the new Party leadership. 14. Szerer, ProcesyprzedNajwyzszym Sadem Wojskowym (Trialsin the Military Supreme Court, Tygodnik Solidarnosc (The Solidarity Weekly), Nov. 20, 1981, at 12. 19911 The Independence of the Judiciaryin Poland

with the Party's directives and the policy of the Government." 15 Several years later, a leading theorist of law claimed in the same vein that under the Soviet approach the "judiciary should not be alienated from society, fenced off from the rest of the state apparatus, cut off from the Party apparatus." Quite to the contrary, the judge's daily work must be founded upon his "legal consciousness shaped by the principles of Marxism-Leninism, by the Party's directives, by the legal-political acts of the Soviet power. Understandably, no judge would like to be independent from these principles." 16 In short, the judiciary, acting in accordance with the Soviet model, can realize its independence only when it is totally subservient to the Party. This kind of perverse reasoning, reminiscent of Orwell's "1984", was at that time rather typical. The following exchange, which took place in the early 1980's between Jakub Berman (a powerful Politbureau member during the Stalinist period) and a Solidarity-affiliated journalist, Ms. Teresa Toranska, demystyfies the Party's attitude toward the judiciary.

Berman: Independent or not, a court bases itself on the documents presented to it by the investigative authorities... It's certainly true that our courts were not among the best and the problem, in my view, lay not in that trials took place on the prison grounds, but in that judges were, unfortunately, prepared for what to expect from the outset and therefore not always impartial. Toranska: Those were the only kind you appointed. Berman: We didn't appoint them; the Soviet advisers did. Judges came from the security apparatus, as in the Soviet Union, because the advisers introduced their own judicatory methods over here, so our judiciary was appointed to the Soviet model. Toranska: Did they also determine sentences? Berman: Sentences were in accordance with the provisions of the criminal code and dependent on the nature and extent of the offense. We intervened only in the most serious and vital cases; for the rest the penal procedure was normal. Toranska: Mr. Berman! Berman: I agree, those weren't normal courts and the judges were not among the most discriminating, but you must understand that these

15. Rek, 0 rol izadaniachsadow powszechnych wwalce o utrwalenie ludowejprawor- zadnosci (The Role of Courts of RegularJurisdiction in the Campaign to Strengthen Socialist Legality), 9 NowE PRAVo (TrlE NEw LAW) 12 (1951). 16. S. EHRuCH, USTROJ ZWIAZKu RADzlEcKlGo (THE Socio-PoLmcIAL SYSTEM Op THE SOviET UNION) 285-6 (1954). Arizona Journalof Internationaland Comparative Law [Vol. 8

judges also wanted conscientiously to fulfill their duties to the Party, which the necessity of the State imposed upon them. You know how it is, surely. Sometimes the interest of the individual has to be subordinated to the interest of the State, and when the State is threatened suspicions are magnified in order to render them more plausible. I don't deny that a number of sentences were incorrect, and perhaps if they had been passed by different judges we would have avoided many mistakes. But then, it wasn't all that easy to find judges who would be able at the same time to retain both their loyalty to us and their loyalty to the accused, which is essential in order to pass a just sentence. Toranska: When I hear any of you gentlemen say the words "just," "equal" or "socialist," I feel my flesh creep.17

The "double loyalty" concept, referred to in Berman's concluding pas- sage, captures well the crux of the intractable problem faced by Polish judges during the communist rule: how to protect the interests of the accused while remaining loyal to the communist Party elite. Characteristically, Berman puts almost all the blame on judges, minimizing the significance of the fact that the system he himself personified deliberately reduced the judiciary to the Party's tool by depriving it of all of its essential attributes. 18

Ill. THE POST-STALINIST ERA (1956-1989)

A turning point in communist Poland's history occurred in October of 1956 when Wladyslaw Gomulka, himself a victim of Stalinist practices, was elected the Party's First Secretary. This event symbolized the outright repudiation of the repressive policies of the past era and the end of direct Soviet interference in the country's internal affairs. Soviet advisors were sent home. Unfortunately, the cardinal ideological tenets underlying the communist system remained intact. As a result, the judiciary's role within the power structure was not enhanced despite the significant liberalization of Polish political life. The ruling Party-elite still considered the judiciary as merely another law enforcement agency, obligated to implement faithfully the communist leadership's current policies.

17. TORANSKA, supra note 13, at 330-31. 18. As related by a Supreme Court Justice from the Stalinist period (who was ultimately dismissed from office for the lack of total subservience), during a 1952 major political trial it became clear to the justices hearing the case that the defendant, sentenced to 15 years of imprisonment, was obsolutely innocent. Nevertheless, they decided to let the verdict stand when warned by the Supreme Court's chairman that if the case were remanded, political pressure on a new panel of judges might result in a death sentence and the defendant would be executed. (Needless to say, the acquittal was, under the circumstances, not a realistic option). Five years later, after the Stalinist system's collapse, the defendant was released from prison and the conviction annuled. See Rzrt'LNsKI, supra note 2, at 36. 1991] The Independence of the Judiciaryin Poland

As demonstrated by Dr. Rzeplinski, in the post-Stalinist era, characterized by a gradual weakening and, generally speaking, a relaxation of the communist rule, a variety of "remote control" mechanisms replaced "manual steering." The political leadership employed much more refined, but no less effective, measures. In particular, an elaborate system of appointments, transfers, promotions, rewards, disciplinary measures, and supervision by chairmen of the courts and the Ministry of Justice functioned rather smoothly and succeeded in maintaining the judiciary in a clearly subservient position. Needless to say, all higher-level administrative positions were strictly re- served for trustworthy Party members. Exceedingly unsatisfactory salaries of judges as well as inadequate working conditions contributed to the generally felt malaise, low morale, and the lack of self-esteem. Especially throughout the 1960s it seemed the judiciary was totally subjugated to the Party apparatus. In 1962, Parliament promulgated the Act on the Supreme Court, meant to legitimize the political structure's dominance over the highest judicial body.19 From that time on, the Council of State (the collective head of State) would appoint Supreme Court Justices for a fixed term of five years, while all other judges were appointed for indefinite terms. In addition, the Act authorized a justice's dismissal if he failed to guarantee proper fulfillment of his duties. Finally, the Act subjugated the Supreme Court, allegedly the highest tribunal of the land, to the general supervision of the Council of State, a body absolutely dominated by the Party. Similarly, the 1963 Act on the Courts of General Jurisdiction clearly reflected the Party's desire to control the judiciary.20 In particular, the power of the Minister of Justice over judicial appointments was reaffirmed; it was up to him to submit a specific motion to the Council of State. It was also up to the Minister to recommend that the Council remove a judge from office. It is noteworthy that "manual steering" was not completely discontinued during the Gomulka reign, which lasted until 1971. Occasionally, especially in periods of rising social tensions, the Party apparatus would return to this well-proven method and directly influenced a particular case's outcome. For example, as Dr. Rzeplinski recalls, in the early 1960s, Gomulka personally requested death sentences in two major trials involving economic crimes. The author goes on to add: "I read the written decisions in the two cases. Extraordinary linguistic equilibristics are required, in Europe, to justify hanging someone who committed theft."2 1 During the Gomulka period, as well as throughout the entire post-Stalinist epoch, the Party often promulgated general directives urging, in essence, the application of more severe penal measures for certain categories of criminals. These directives, formally devoid of any legal validity, were then transmitted 19. The Law of February 15, 1962, Dziennik Ustaw C (Journal of Laws) No. 11, item 54. 20. The Law of December 19, 1963, Journal of Laws No. 57, item 308. 21. RZEPLINSKI, supra note 2, at 42. ArionaJournal of Internationaland ComparativeLaw IV()/. 8 in various ways to the judiciary, with the previously mentioned Supreme Courts Guiding Directives often employed as a convenient and legally "elegant" medium. Invariably, the Court urged the judiciary to increase the severity of penal repression when dealing with particular categories 22 of offenders. In addition, to enhance the effectiveness of its policy, the Party would, from time to time, initiate anti-crime campaigns meant to mobilize law enforcement agencies, as well as the public, against the perceived threat from a given crime category. For example, in the late 1950s and in the early 1960s, the Party-controlled media created a climate of hysteria while portraying in a highly sensationalized manner the extent of economic criminality and "hooliganism" (another Soviet import). Understandably, judges were under tremendous pressure to bend formally binding rules to accommodate the Party's demand for swift and harsh repressive measures. As put succinctly by a Western expert on communist law, "[a]nti-crime campaigns... almost invariably involve substantial abandonment of the rules for the sake of expediency. They represent a major retreat of the due process function in favor of the crime control function, or, to put it in other words, major 23 concessions by the normative to the prerogative state". During the post-Stalinist era the political climate became gradually so relaxed that some judges began voicing their complaints against the Party dominance. However, the authorities remained watchfully on guard. For example, in 1957, the Minister of Justice lectured judges that specific demands coming from political power centers did not violate the idea of judicial independence. As he explained, "judicial independence does not mean the separation of courts from our [socio-political] system and the goals this system accomplishes. Such independence does not exist and has never existed anywhere in the world". 24 Nevertheless, as Dr. Rzeplinski emphasizes, in the post-Stalinist epoch some judges resisted the political pressure from above and were able to build up professional integrity and gain a measure of public respect. Most members of the judiciary, in turn, adopted a method of "passive resistance." They did not dare to defy the Party line openly, but tried to preserve as much decency and fairness as possible in performing their everyday duties. Fi- nally, a small group of judges emerged, blindly faithful to the power centers and always ready to comply with their demands, however subtly expressed. Not surprisingly, when any politically sensitive case reached the court, the chairman always assigned it to a carefully selected panel of judges known for their absolute loyalty to those in power.

22. Frankowski, supra note 11. 23. S. Pomorski, CriminalLaw Protectionof Socialist Propertyin the USSR, in 1 SoviET LAW AFrER STALIN 235 (D.D. Barry, G. Gingsburg & P.B. Maggs eds. 1977). 24. RZEPLINSKI, supra note 2, at 44. 19911 The Independence of the Judiciary in Poland

In the 1970s, during Edward Gierek's tenure as First Secretary, the Party still occasionally resorted to "manual steering", although, as Dr. Rzeplinski notes, the authorities no longer pushed for the death sentences. 25 Neverthe- less, when the need arose, direct and forceful intervention into the functioning of the judicial apparatus followed immediately. For example, in 1976, a wave of strikes and riots erupted in several Polish cities after the Government announced a food price increase. Gierek characterized the protesting workers as "scoundrels" and demanded harsh and swift reprisals. The criminal law machinery cranked into motion. The trial of two Gdansk Lenin Shipyard workers, charged with strike related sabotage, illustrates the point. The court chairman summoned the judge handling the case to tell him, in no uncertain terms, that those "from above" demanded imposition of severe punishments 26 and ruled out conditional suspension of the sentence of imprisonment. Other repressive measures were employed as well. Many workers were summarily fired for participating in strikes. Judges of special labor courts, reviewing the dismissed workers' appeals, were pressured in a variety of ways to affirm the initial decisions rendered by plant administrators. Sub- sequent events made it evident, once again, that the Party had used the totally powerless judiciary as a handy tool to attain a short-term goal, this time, to prevent large scale workers' protests. Only a year later, faced with the growing public discontent, an Amnesty Decree authorized an earlier release of those sentenced to prison in connection with the 1976 unrest.27 At about the same time, almost all of the workers dismissed for joining the anti-gov- emment protests were re-hired. By the late 1970s, along with the progressing disintegration of the communist system, the judiciary became politically diversified, if not polarized. It became more difficult for the Party to recruit talented, but at the same time politically reliable, individuals to the judiciary. It also became difficult to staff top administrative positions with trustworthy Party members, not just careerists. Obviously, the Party spared no effort in assuring the judiciary's political reliability. For example, all chairmen of appellate courts were, without exception, Communist Party members. The highest Party bodies exercised especially tight control over the appointment of Supreme Court Justices, even though this prerogative formally belonged to the Council of State. In 1979, the First Chairman of the Supreme Court, while presenting a list of candidates to the Council, unabashedly mentioned that the Party's Central Committee had previously approved the list.28 All lower-level judges were also subjected to the same politically oriented procedure; an

25. Id. at 47. 26. See Falkowska, Votum nieufnosci (The Vote of Non-Confidence), Tygodnik Solidar- nosc, Nov. 13, 1981. 27. The Decree of July 19, 1977, Journal of Laws No. 24, item 102. 28. RZEPLINSKI, supra note 2, at 65. Arizona Journalof Internationaland Comparative Law /Vol. 8 appropriate Party body, depending upon the court level, carefully scrutinized each candidate before bestowing its stamp of approval. Needless to say, the procedure was informal and secret; as such, it was not subject to any external review or control. In January of 1980, in the last months of Gierek's reign when the regime was in total disarray, the Parliament created a special judicial organ, the Main Administrative Court, empowered to check the legality of administrative decisions. Due to the substantially weakened Party's role as well as the relatively narrow scope of the Court's review (e.g., decisions in such matters as the issuance of passports or the military service remained entirely in the hands of administrative authorities), the newly-created body was able to assume a fairly independent posture and frequently took the side of an individual challenging the decision of highly bureaucratized governmental agencies. At that time the courts of general jurisdiction were also becoming more emancipated from the Party's dominance. Nevertheless, after Solidarity's creation in August of 1980, the Party leadership must have been shocked to discover that almost one thousand judges (28% of the judiciary) ultimately joined the Union's ranks. A small Solidarity unit came to life even within the Supreme Court. Naturally, the issue of the independence of the judiciary came immediately to the very forefront of the political reforms demanded by the Union.29 Dr. Rzeplinski's chapter on this period provides a poignant testimony to the miraculous survival of the idea of judicial independence in a society subjected to over four decades of communist indoctrination. In 1981, several attempts were made to secure judicial independence, particularly by reviving the idea of judicial self-governance. An overwhelming majority of judges demanded the immediate rejection of the old politically-influenced system of administrative appointments and wanted to have it replaced with a democratic electoral process. In the Fall of the same year, the Party had to make a concession and, without any legal foundations, accepted a compromise solution: several candidates for an administrative position (e.g. chairman of the regional court) would first be elected by the judges of a given court and one of them would then be appointed by the Minister of Justice. These 30 elections took place in Warsaw and two other major Polish cities. The period following the Martial Law Decree of December 13, 1981, which drastically curtailed most fundamental civil and political rights and

29. A. Strzembosz, 0 samorzadne sadownictwo w samorzadnej Rzeczypospolitej (The Self-Governed Judiciaryin the Self-Governed Republic ofPoland),Tygodnik Solidamosc, Nov. 13, 1981. 30. Machcewicz' Samorzadsedziowski (The Self-government ofJudges), Tygodnik Soli- damosc, Dec. 4, 1981. As revealed with disarming sincerity by the Chairman of the Poznan voivodship Court (who later was appointed Minister of Justice), the court's chairmen were previously considered "politically . . . responsible for the substance of judicial decisions. Someone not able to guarantee judicial decisions acceptable to political decision-makers, could not be appointed the court's chairman." RZEPLINSKI, supra note 2, at 59. /99// The Independence of the Judiciaryin Poland declared Solidarity an illegal association, was especially difficult for the entire judiciary. As early as December 16, four Solidarity active judges were summarily dismissed by the Council of State. Several other judges were immediately interned by the security service, despite the clear language of Art. 42 of the Decree which declared that all the heretofore valid provisions relating to immunities of particular categories of individuals (e.g., judges, prosecutors, members of Parliament, etc.) remain in force. This constituted a clear violation of the judicial immunity which was guaranteed by Art. 49 of the Law on the Courts of General Jurisdiction, not to mention the constitu- 3 tional rule (Art. 62) guaranteeing the independence of the judiciary. 1 In January 1982, the Council of State dismissed a Supreme Court Justice who headed the Court's Solidarity unit. The Minister of Justice recom- mended this move to the Council of State by emphasizing in his motion that the judge "was a Solidarity activist and had aligned himself with the most extreme wing of its leadership." The Minister's motion was accompanied by a statement by the First Chairman of the Court, known for his unflinching servitude to the Party, who dutifully reported to the Council that the Justice, "in November 1980, set up an Organizing Committee of Solidarity... [without informing] the Court's administrative authorities [of this fact]." As Dr. Rzeplinski recalls, at the time of the Justice's actions, Solidarity was a legal organization and the Party was emphatically declaring its willingness to come to terms with the Union representing millions of Poles.32 In April of 1982, one judge was indicted, held in pretrial detention and convicted for having been active in the Solidarity underground. During 1982, the Council of State disissed 25 judges (some sources give higher numbers) for their lack of political reliability.33 The process of "verification" of the judiciary was then in full swing. All Solidarity member judges were officially requested to resign from the Union. Many judges, under various forms of pressure, decided to give up their judgeships. In 1983 alone, 159 judges left office, a number three times higher than in each of the preceding four years. Alto- gether, between 1983 and 1986, almost five hundred judges, one eighth of 34 the entire judiciary, gave up their careers. Although Martial Law was rescinded in 1983, numerous newly-passed laws preserved most of the characteristic features of the Martial Law political climate. For example, a new Act on the Supreme Court of September 20,

31. In January of 1989 the Guardian of Citizens' Rights petitioned the Minister of Justice to review the case of one judge interned on December 13, 1981 (recalled from his judicial post on December 24, 1981). In response, the Minister expressed his "deep regrets" and explained that the Ministry did not intervene on behalf of the illegally detained judge due to "communi- cation difficulties connected with the introduction of the Martial Law." BiJLETYN RzEczNiKA PRAw OBYWATELSKICH (THEBuL.LEiN OFTHE GUARDIAN OF CmzENs' RIGHTS) No. 1-2, at 172-73 (1989). 32. RzEpLiNsgi, supra note 2, at 95-96. 33. Id. at 94. 34. Frankowski, supra note 8, at 1329. Arizona Journalof Internationaland ComparativeLaw [Vol. 8

1984,11 perpetuated the most glaring shortcomings of the old 1962 Act. In particular, the five-year tenure of Supreme Court Justices was retained. The role of the Supreme Court Directives was enhanced; they were implicitly declared to constitute a source of law. Further, the Act proclaimed with surprising frankness that a Supreme Court Justice's main duty was to "serve the Polish People's Republic faithfully, properly fulfill the duties spelled out in the judicial oath, and systematically increase the level of social awareness and professional knowledge. ' 36 Dr. Rzeplinski quotes some passages of the 1938 Soviet Law on the Judiciary and finds striking similarities between the 37 substance and even the language of the two laws. Along the same lines, the 1985 Act on the Courts of General Jurisdiction stated that the main duty of courts is to "protect the political and socio-economic order of the Polish People's Republic." 38 The Party thus rejected any pretense of the judiciary's political neutrality and openly expressed the *substance of its policy vis-A-vis the judiciary in a legally binding document. Under the 1985 legislation, the process ofjudicial appointments and dismissals was carefully designed to meet the primary objective of controlling the political reliability of judges. For example, every prospective judge was obliged to plead an oath of allegiance to the existing power structure before assuming his duties. Incidentally, the text of the oath was identical to the one taken by the procurators. In addition, the 1985 Act subjected judges to various forms of constant supervision and control, carried out by the Ministry of Justice through special organs and specially appointed persons. Moreover, the court chairman's position was significantly strengthened; defacto if not dejure, the chairman became an agent of the Minister of Justice. In particular, he was obligated by law to maintain a separate file on each judge's "professional and personal matters," without allowing the judge an opportunity to inspect his file or acquaint himself with the chairman's evaluation of his performance. An executive order issued in 1985 by the Minister of Justice required the court chairman to prepare every three years a written report on each 39 judge which would include an assessment of the judge's political attitude. Finally, also in 1985, the Parliament passed a set of harsh criminal laws significantly restricting judges' discretionary powers. In many instances the statutorily prescribed lowest limits of penalties were raised, the use of probation was significantly restricted, and pretrial detention as well as 40 forfeiture of the convicted person's property were made mandatory.

35. Journal of Laws No. 45, item 241 (1984). 36. As revealed by a University of Poznan Law professor, who at one time served also as a Supreme Court justice, all the 49 justices of the Criminal Law Chamber were members of the Communist Party in 1989. Ratajczak, SadNajwyzszy (The Supreme Court), Gazeta Prawnicza (The Lawyer's Gazette), Dec. 1, 1989. 37. Rzm'INSKI, supra note 2, at 107. 38. The Law of June 20, 1985, art. 3, Journal of Laws No. 3, item 137. 39. The Minister's Executive Order of February 1986, Journal of Laws No. 6, item 38. 40. The Laws of May 10, 1985, Journal of Laws No. 23, items 101 & 102. 19911 The Independence of the Judiciary in Poland

As Dr. Rzeplinski chronicles, the Party's direct and frequent intervention into the functioning of the judiciary continued unabated until the very last days of the Communist rule.4 1 Such practices have been colloquially referred to as the "Jus Telephonicum." Phone-calls from highly-placed officials to judges handling particular cases (or to their superiors) were used effectively 42 to secure the desired outcome of the case. By that time, the public was generally aware of the dismal state of the judiciary. An April 1986 opinion poll revealed that many Poles believed that judicial decisions were unjust and were rendered to "please the supervisors," and that judges were subject to intervention "from above" and were cor- rupted. Only 8% of respondents stated that they would like their child to 43 become a judge.

IV.THE POST-COMMUNIST PHASE

Since the completion of Dr. Rzeplinski's fascinating book, monumental changes have been occurring in Poland. On April 5, 1989, following pro- tracted negotiations, Solidarity and the Communist Party reached a compre- hensive political compromise, the so-called Round Table Agreement. Most importantly, the Agreement opened the door for re-legalization of Solidarity; in addition, it laid the ground for future reforms which would eventually change the nature of the Polish political and socio-economic order. The two sides agreed that the "separation of powers into the legislative, executive, and the judicial one shall be the foundation of democratization of state '44 structures on all levels. Further, the Round Table Agreement underscored the judiciary's independence by declaring that it should be based on the constitutionally-prescribed principle that judges shall not be removable (except in situations specified by the law) and that they may not be transferred to another post

41. See RzEPLINSKI, supra note 2, at 50, 123-24, & 127. 42. Interestingly enough, the same term has been adopted in the same context in the Soviet Union. As noted by one scholar, modem technology has transformed "telephone law" into "intercom law" and might soon create "computer law". D. M. Simmons, Recognition of Illegalities, Proposalsfor Reform, and Implemented Reforms in the Soviet Criminal Justice System under Gorbachev, Glastnost,and Perestroika,5 Am.U.J. INT'LL. & POL'y 930 (1990). 43. Podemski, Brutalnie, lecz szczerze (Brutally, But Honestly), Polityka (The Politics), Sept. 27, 1986. 44. One may mention in passing that the separation of powers idea first appeared in the Polish Constitution of 1791, promulagated shortly before Poland's partition by Russian, Prussia, and Austria. The Constitution's chapters dealt respectively with the powers of the Parliament, of the King, and of the judicial branch. Montesquieu's theory was then reaffirmed in article 21 of the 1921 Constitution, the first constitution adopted in Poland after the country reappeared on the map of Europe after world War One. See A. Szczaska, Pierwsza ustawa zasadnicza Rzeczypospolitej (The FirstConstitution of Poland), in 1 KONSTYTUCE POLSKI (CoNsTnmrmONS OF POLAND)58-87 (M. Kallas ed. 1990); S.Krukowski, Konstytucja Rzeczypospolitej Polskiej 1921 r. (The 1921 Constitution of the Republic of Poland), in 2 KONSTY1CE POLSKI (CoNSTI- TtmONS OF POLAND)70-108 (M. Kallas ed. 1990). Arizona Journalof Internationaland Comparative Law [Vol. 8 within the judiciary without their consent. Finally, the Agreement envisaged the creation of the National Judicial Council, composed primarily of judges, a body specifically designed to protect the judiciary's independence. It was understandable that the postulate of the independence of the judiciary, came - as it did in the 1980-81 Solidarity period- to the forefront of reforms demanded by the opposition forces. The Martial Law period, when the executive power (the Ministry of Justice) acted hand in hand with the legislative body (the Council of State) in implementing the Party's directives and brutally quashed the resistance of the judiciary, was still fresh in everyone's mind. Just two days later, on April 7, the Parliament, at that time still totally subservient to the Party, obediently amended the Constitution to reflect the main ideas incorporated in the Round Table Agreement.45 One should note three important innovations regarding the judiciary. First, one amendment drastically altered the judicial appointment process. Under Art. 60 of the Constitution (as amended), judges are to be appointed by the President of the Republic (who replaced the Council of State) upon the motion of a newly- created National Judicial Council, a mixed body composed of judges (the majority of them elected by their peers), members of Parliament (two Senators and four deputies of the Sejm - the lower chamber of the Polish Parliament), the Minister of Justice, and the President's representative. Second, the First Chairman of the Supreme Court is to be appointed directly by the Sejm upon the President's motion. Finally, the Parliament rescinded the constitutional clause limiting the tenure of Supreme Court Justices to five years. The Constitution now explicitly provides that judges must not be removed from office except in instances specified by the law. Strangely enough, for a variety of reasons, the separation of powers theory was not specifically expressed in the amended Constitution, despite the previously reached accord on this point.4 6 By that time, however, everyone seemed to take it for granted that the judiciary, as an institution, must be considered separate from the other two branches of the government. Only then could it operate independently. This, in turn, would allow judges to perform their judicial functions independently. In December of 1989, the newly-elected Parliament, with Solidarity and its allies enjoying a comfortable majority, amended the Constitution once again. 47 The return to the old country's name (the Republic of Poland) was meant to symbolize the return to the fundamental ideological precepts on which the political system of pre-World War Two Poland had been based. One amendment explicitly declares that Poland is a democratic country

45. The Law of April 7, 1989, Journal of Laws No. 19, item 101. 46. Wasilkowska, Czas realizacjidawnych idei (The Time to Implement Old Ideas), The Lawyer's Gazette, Feb. 1, 1990. 47. The Law of December 29, 1989, Journal of Laws No. 75, item 444. 1991] The Independence of the Judiciary in Poland governed by "the Rule of Law" (Art. 1).48 As explained by a respected historian of law from the University of Warsaw, such a model is superior because it best protects the citizens' rights and security; it prevents the rulers or abusive manner; and finally, from governing in an arbitrary, voluntaristic, 4 9 it allows the society to decide upon the substance of its laws. The legislative history of the amended Art. 1 unequivocally confirms the acceptance of the separation of powers concept. One will immediately notice, though, that the jurisdiction of regular courts was not enhanced; they were not given the power of judicial review. This prerogative still remains with the special quasi-judicial body, the Constitutional Tribunal, created in 50 the final years of Communist rule. Along with the Constitutional changes the Parliament amended the 1984 Act on the Supreme Court and the 1985 Act on the Courts of General 5 Jurisdiction. 1 It also passed the Act on the National Judicial Council designed to protect the "integrity ofjudges and thejudiciary's independence" (Art. 1 of the Law on the Council).52 The new set of laws is predicated on one fundamental assumption: the judiciary must be made politically neutral and must be accorded a considerable degree of self-governance to be able to secure its independence from the country's power centers, specifically, from the other two branches of government. Consequently, the Minister of Justice was deprived of all its supervisory power over the judiciary as a whole as well as over individual judges. To insulate judges from political influences, one amendment provides that a judge may not be a member of any political party and is prohibited from engaging in any kind of political activity, except parliamentary ones. This clause, modeled after the pre-war legislation, provoked considerable controversy during the Round Table negotiations as well as during the draft debate. Some claimed that judges would be unfairly singled-out because they would be deprived of their constitutional right to

48. Articles I and II of the Constitution. It may be instructive to compare them with the original version of the 1952 Constitution: Article I. 1. The Polish People's Republic shall be a socialist State. 2. In the Polish People's Republic authority shall be vested in the working people of town and country. Article II. 1. The working people shall wield State authority through their representatives elected to the Diet (Sejm) of the Polish People's Republic ...." 13 CONSrITUTONS OFTHF COUNmRES OFTE WORLD 14 (A. Blaustein & G. Flanz ed. 1989). 49. Pietrzak, Demokratyczne panstwoprawne (The DemocraticCountry Ruled by Law), The Lawyer's Gazette, May 16, 1989. 50. See Garlicki,ConstitutionalDevelopments in Poland,32 ST. Louis U.LJ. 713,724-34 (1988); Frankowski, A Comment on ProfessorGarlicki's Article "ConstitutionalDevelopments in Poland:" The Lyrics Sound Familiar,But Are They Really Playing Our Song?, 32 ST. Louis U.LJ. 737,741-50 (1988). 51. The Law of December 20, 1989, Journal of Laws No. 73, item 436. 52. The Law on the National Judicial Council of December 20, 1989, art. I, Journal of Laws No. 73, item 435 (1990). Arizona Journalof Internationaland ComparativeLaw [Vol. 8

participate in the political life of the country. 53 Finally, the Supreme Court's power to promulgate formally binding Directives was abolished in order to underline the strictly judicial nature of the Court. The idea of self-govemance has been implemented in a variety of ways and is most clearly reflected in the field of judicial appointments and dismissals. For instance, it is up to the National Judicial Council to review the candidates for judgeship and to submit specific nominations to the President who makes the final decision. Candidates for chairmen of appellate courts are to be elected by judicial conferences with final appointment to be made by the Minister of Justice. Their tenure has been limited to two four-year terms (previously, they could stay indefinitely). Under the amended Act on the Courts of General Juris- diction, a judge may be dismissed from office only as a result of disciplinary proceedings, regulated in great detail by the Act and left entirely in the hands of the judiciary. New chairmen of all appellate courts were appointed in the Spring of 1990. The newly-constituted Supreme Court, headed by a widely-respected, Solidarity affiliated professor of the Catholic University at Lublin, began functioning on July 1, 1990. Incidentally, it is worth noting that under the Law on the Supreme Court, Supreme Court justices will be appointed for an indefinite term, with forced retirement at age 65 unless extended to age 70 by the National Judicial Council upon the request of the justice or the recommendation of the Court's first chairman. Considering that the average age of newly-appointed justices is probably around 60, one must conclude that this clause may make older justices more sensitive to the political realities of the time. Finally, one should also note that in March of 1990 the omnipotent Soviet-style procuracy was abolished. Instead, the pre-war model, under which the procuracy is incorporated within the Ministry of Justice and its role limited primarily to prosecuting criminal cases, was returned to graces.54 As a result, the Minister of Justice is able to influence the substance ofjudicial decisions in compliance with the law, that is, by directing a procurator to 55 institute a regular appeal process.

V. CONCLUDING REMARKS

Only the future will show whether and to what extent the Polish judiciary will be able to function in accordance with the noble principles underlying the 1989 revolutionary changes. In particular, it remains to be seen whether the Polish reformers were overly idealistic in assuming the judiciary's political neutrality.

53. Krassowska,Zaufacsedziom (Trust theJudges),The Lawyer's Gazette, Feb. 16, 1990. 54. The Law of March 22, 1990, Journal of Laws No. 20, item 121. 55. The Law of December 20, art. 3(10), Journal of Laws No. 73, item 435 (1990). 19911 The Independence of the Judiciaryin Poland

Although Poland's democratic traditions go back as early as the 13th century, 56 it is now becoming increasingly clear that it will take a long time for the modem liberal democracy to mature and for a genuinely pluralistic political system to consolidate. In all probability, after 45 years of rule by the communist minority and in view of the severe economic crisis the country will be facing for many years to come, at least the initial phase in the life of the reborn Republic will be characterized by strong majoritarian tendencies, fueled by the natural desire to integrate the society around commonly accepted moral values and beliefs.57 Specifically, one may expect that the ideology of Christian Democracy will be the dominant factor shaping plat- forms of all major parties present on the Polish scene until the end of this decade. In this context one must stress the role which will likely be played in the political realm by the ever more powerful Polish Roman-Catholic Church, the only institution able to transcend party lines. It is far from clear whether in such a homogenous political environment the Polish judiciary will be able to find any room to maneuver and to assert its independence. It is inevitable that the pool of candidates for judges will be limited to those sharing the same set of political beliefs with those belonging to the new power structure. In this way, the dominance of one political orientation within the judiciary will be perpetuated. The drafters of the new laws on the judiciary have tried hard to protect judges from external pressure. One may hope that such pressures will not be exerted to influence the outcome of a particular case.58 Nevertheless, as Dr. Rzeplinski aptly cautions in the conclusion of his book, it would be naive to expect that the statutory changes alone would obliterate the well-established rules of the game. When it comes to a larger issue, namely, the political philosophy of

56. Brzezinski, ConstitutionalHeritage and Renewal: The Case of Poland, 77 VA. L. REv. 49 (1991). 57. For instance, in the Summer of 1990, the Minister of National Education issued two highly controversial "Instructions" introducing the Roman-Catholic Religion as a subject to be taught in public schools. In January of 1991, the Constitutional Tribunal, reconstituted in 1990, upheld (with three judges dissenting) the validity of the Instructions. The Tribunal found them compatible both with the 1952 Constitution, which provides in Art. 82 for the separation of State and Church, and with the 1989 Law on the Relationship between the State and the Roman-Catho- lic Church. A well-known Polish legal commentator characterized the Tribunal's decision as "A Legal Suicide". In his view, the Tribunal, by following blindly the Minister's problematic interpretation of the Parliamentary acts, negated the reason for its existence. Podemski, Prawniczesamobojstwo (A Legal Suicide), The Politics, Feb. 9, 1991. During the heated public debate over the Minister's action, the argument was repeatedly raised that over 90% of Poles declare themselves Roman Catholic. This argument also surfaced during the equally tumultuous abortion debate that took place in the same period. Finally, in January of 1991, the newly-appointed Minister of Justice, also the leader of a relatively small Christian-National Union, suggested that divorces should be abolished as incompatible with the basic moral principles on which the new Republic is based. Podemski, Bez rozwodow (No Divorces), The Politics, Feb. 2, 1991. 58. Strzembosz, Nie bedziemy dyrygowac (We Will Not Instruct), The Lawyer's Gazette, Nov. 16, 1989. Arizona Journalof Internationaland ComparativeLaw [Vol. 8 the judiciary, it is probably safe to say that it will be entirely in tune with the ideology of the dominant forces of the country. Therefore, it is almost certain that the judicial branch will remain the "least dangerous branch" of the Polish government. Deprived of the power of American-style judicial review, it will not be able to assume a major role in resolving any future socio-political conflict of considerable magnitude. Most importantly, it is highly unlikely that the Polish judiciary could effectively protect the "discrete and insular minorities" against the probable excesses of majority rule. These possible developments, however, should not overshadow the revolutionary nature of the transformations already accomplished in Poland with astonishing rapidity. A new socio-political order, based on the ideas of the modem Western-style democracy, smoothly replaced the communist system of power. The recent legislative changes designed to ensure the judiciary's independence meet the standards generally accepted in civilized societies; the proper legal framework is thus in place. It may now serve as fertile ground for the Polish judiciary to flourish as a separate and independent branch of the government, faithfully executing its constitutionally prescribed role of distributing justice equally and impartially. Whether and how fast this takes place, however, will depend primarily on the political climate of the country.