One of the promises during the PiS campaign was to overhaul the deeply flawed judiciary, which the US State Department criticised in its 2017 Investment Climate Statements,  blaming the slow and over-burdened Polish court system for chasing away foreign firms to third-country courts and offshore arbitration.  PiS tackled some of the issues, in amending  the rules of procedure for ordinary courts; providing for cases to be randomly assigned, for judges to complete the cases they start,  and for time limits to be set for their resolution – enabling plaintiffs timely access to relief. Furthermore, the judicial retirement age was reduced, and the way judges are elected reformed. Yet, these changes have been overshadowed by a political crisis.

The political crisis was triggered back in 2015, when the newly-elected PiS blocked the instalment of five judges to the Constitutional Tribunal. In June 2015, the Civic Platform party (PO), realising that loss in the October 2015 elections was imminent, set to secure their influence by ensuring a PO majority in the Constitutional Tribunal. The judges – mostly PO appointees – helped the then-ruling party in creating a new law that enabled judges whose terms were to expire after the election to have their replacements lined up in advance. Thereby 14 out of 15 Constitutional Tribunal judges would be selected by PO, potentially blocking PiS from putting forward any significant legislation once in power.

When PiS won an unprecedented absolute majority of seats in the parliamentary election, President Duda did not accept the judges’ oaths of office, and subsequently swore in five judges nominated by the new parliament instead.

The ruling party is accused of putting the courts under its control, and cleansing the Polish judicial system of former communists. When the Soviet regime fell in 1989,  then-president Jaruzelski  didn’t  reform the judiciary.  Only a small fraction of the then-judges of the Supreme Court was forced to retire.  As for the judges in the lower courts, they were never vetted – they remained in office, and with time were naturally promoted. And so, a judiciary that had been in power serving a brutal regime, under the diktat of the Soviet Union, escaped justice in the 1990s and continued to serve in the Polish courts. Nearly three decades later, some of these judges remain in office. Furthermore, many of these judges elected their successors.

Are the controversial reforms legal?

Supreme Court judges and the Chief Justice are being forced out of office, allegedly in contravention of the 1997 Constitution. Reducing the retirement age from 70 to 65 will affect 1/6 to 1/3 Supreme Court judges. The exact number will depend on the President’s decision regarding those who will ask for their mandate to be prolonged by five years.

Article 180, paragraph 1 states that “judges shall not be removable”. Yet, paragraph 4 gives legislators the right to set a mandatory retirement age, and paragraph 5 states that “Where there has been a reorganization of the court system or changes to the boundaries of court districts, a judge may be allocated to another court or retired with maintenance of his full remuneration.” As for exceptions to the six-year term of office of the Chief Justice, the Constitution does not explicitly list any.

Another controversial reform provided authority to the Parliament to elect by a simple majority 15 out of the 25 judges of the National Council of the Judiciary. Previously, these 15 judges were chosen by different judicial bodies.

The Constitution does not specify whether these 15 judges are to be picked by Parliament or the National Council of the Judiciary, but merely states that they are to be “chosen”.  Paragraph 4 of Article 187 declares: “The organizational structure, the scope of activity and procedures for work of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute”.

Arguably, elections to the Council are being politicised, influencing the judiciary. Yet, in criticising Poland, the EU Commission fails to recognise that parliaments take an active role in judicial appointments in a number of European countries. In Germany and Austria, judges are appointed by politicians. In France, Ireland, and Great Britain, although judges participate in the nomination process, they do not hold a majority decision. It is noteworthy that the politicians’ vote in Poland is limited to the pool of candidates put forward by the judges themselves. And two thirds of the judges (17 out of 25) will continue to decide on appointments and promotions.

These disputes over the constitutionality of the recent judicial reforms can be largely attributed to problems and inconsistencies plaguing the post-communist 1997 Polish Constitution, which gives broad scope to legislators to regulate and reorganize the judicial system by statute.

Skewed sex ratios are a living testament to India’s deep-rooted patriarchal society. Girls are avoided at all cost because of a widely prevalent perception that they are a burden and a future asset to someone else’s home. Not only do parents want to avoid the exorbitant demand of a dowry (although Indian laws against dowries have been in effect for decades they are largely ineffective), but there is also the misconception that only boys can support their elderly parents, and inheritance is limited to the male members of the family.  With girls given little societal value, they are at best neglected, and at worst routinely aborted.

In theory, strict laws explicitly prohibit sex determination during pregnancy. The Medical Termination of Pregnancy (MTP) Act, 1971 permits termination of pregnancy for a broad range of conditions up to 20 weeks of gestation, but sex selection is not a ground for termination. The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 was specifically enacted with the aim of preventing the misuse of pre-natal diagnostic techniques for sex determination. As mandated by the PCPNDT Act, no laboratory, centre or clinic will conduct any test including ultrasonography (USG) for sex determination. No person will communicate the sex of the foetus to the pregnant woman or her relatives by words, signs or any other method. No advertisement shall be posted for prenatal and/or preconception sex determination facilities in the form of a notice, circular, label, wrapper or any document, or advertisements through internet or other media in electronic or print. This is punishable by imprisonment and fine.

Furthermore, the principle of gender equality is enshrined in the Indian Constitution. The Constitution not only grants equality to women (Article 14) and prohibits discrimination based on sex (Article 15 (1)), but also empowers the State to adopt measures of positive discrimination in favour of women (Article 15(3)).  Article 16  ensures equal employment opportunity to every citizen of India.

Despite legal efforts, the demographic imbalance is of ongoing concern with far-reaching social and economic impacts.  The presence of women in public spaces is more of an exception than the norm.  Those girls that are lucky enough to see daylight are usually confined to their homes. Studies have shown that Indian girls receive less education, have poorer nutrition and get less medical attention than boys. Only recently has international light been shed by the Economist on Indian women not joining the working force. It is claimed that were India to rebalance its workforce, the world’s biggest democracy would be 27% richer. Instead, the female employment rate is falling at an alarming pace; from 35% in 2005 to just 26% now.  As for domestic violence, dowry death and rape statistics – these are hushed, reflecting a cultural agreement that women have little value.

And so, enforcement of the PCPNDT Act is feeble. Medical professionals and families routinely break the law with little consequence. In a nation of 1.3 billion people, up until December 2017, there were only 449 convictions, and the medical licenses of 136 doctors have been suspended.

The Vanishing girls campaign reports that in the state of Delhi, some modest progress has been made. While in the year 2012, there were only 886 females born for every 1,000 males, in 2016 the ratio improved with 902 girls being born for every 1,000 boys. Sadly, in other parts of India, this positive trend is reversed: more girls are aborted because of their sex than ever before. The worst hit states are Haryana (830), Punjab (846), and Jammu and Kashmir (859).

Greater efforts need to be made to combat one of the greatest injustices and legal violations in India today: the illegal but widely accepted practice of sex-selective abortions. Son preference and daughter aversion needs to become a thing of the past.  To implement and enforce the law, biases need to be challenged, mindsets changed, and the status of girls and women strengthened.   To initiate public debates and build awareness across Indian society is not only timely but urgent to enable girls and women to fully enjoy their fundamental freedoms and rights guaranteed under India’s Constitution.  Their lives are at stake.