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 Rights Copyright © The Author(s) Download date 30/09/2021 17:15:25 Item License http://rightsstatements.org/vocab/InC/1.0/ Version Final published version 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 edu- cation 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 inde- pendence 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-con- trolled 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 im- posed 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 impos- sible 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.