Rule of law: Polish President’s proposed changes to Supreme Court rules raise concerns about ‘capture’ of power
Image caption: Warsaw Uprising Monument outside Supreme Court. Artur Bogacki - stock.adobe.com
Polish President Andrzej Duda outlined in November significant alterations to the voting requirements for judges to adopt rulings in Poland’s Supreme Court. The change would mean that rulings could pass with a 50 per cent, rather than two-thirds, majority. Duda’s plan follows the country’s general election in October, which saw the Law and Justice Party’s eight-year reign come to an end. A three-party grouping of opposition parties – Civil Coalition (KO), Third Way and Lewica – together won a majority of the seats and will be led by Donald Tusk as prime minister.
Duda’s Supreme Court proposal is, observers say, intended to ensure that ‘neo-judges’ – referring to those appointed by the National Council of the Judiciary (NJC) – still have some powers. The NJC is a controversial body. For example, according to a letter sent in summer 2022 to the European Commission and signed by an array of non-government organisations, the body ‘lost its independence as a result of legislative changes initiated in 2017’. NJC-appointed judges make up 50 per cent of the Supreme Court and it’s claimed that they support the outgoing government.
‘The President has used this moment as an opportunity to secure as much power [for] the Law and Justice Party as possible, including packing its supporters into the Supreme Court’, says Paulina Kieszkowska, Co-Founder of the Free Courts Initiative in Poland, a collective of lawyers campaigning on rule of law issues. ‘They are attempting to capture as much as they can before power is transferred.’
The President’s Office tells Global Insight that the proposals are about the internal organisation of the Supreme Court and have come from the institution itself. ‘The amendment is intended to serve the efficient functioning of the judiciary and to streamline the process of obtaining of a decision’, says a spokesperson for the President’s Office, giving the example of situations where judges may be absent, leading to delays in the administration of justice. ‘All judges in the judicial process are independent and subject only to the Constitution and laws.’
The Law and Justice Party didn’t respond to Global Insight’s requests for comment.
There is a fundamental problem about how to undo what the Law and Justice Party has done to the judiciary and the legal system without playing the same political game
Tomasz Cyrol
Council Member (Poland), IBA European Regional Forum
Changing the make-up and arrangements of the court system and judiciary have been constant themes of the past eight years. There have been amendments to the term of office for judges and to their retirement ages, which were reduced from 70 to 65 years, which meant that one-third of those judges serving at the time had to retire. Further, radical modifications to the way judges are both appointed – by introducing a vote for political representatives – and disciplined were made. The Law and Justice Party consistently argued that the reforms were necessary because the judiciary hadn’t changed at all since the fall of communism in Poland in 1989, and because the previous regime packed the Constitutional Tribunal with its own supporters when they took power in 2015.
The EU has been at loggerheads with Poland over these changes, which are widely recognised as undermining the independence of the judiciary. The European Commission has brought a number of cases against Poland as a result and there have been around 20 judgments against Poland from the Court of Justice of the European Union and the European Court of Human Rights. Alongside constitutional ‘backsliding’ in Hungary, Poland’s controversial reforms led to the development of an EU ‘rule of law mechanism’ and annual reporting on rule of law issues within the bloc.
The step change came when EU funds were frozen through conditionality schemes tied to the EU’s rule of law mechanism. Both the Cohesion Fund – money that’s distributed to Member States to strengthen ties between EU countries – and the post-pandemic Recovery and Resilience Fund are dependent on rule of law issues being resolved.
In the eyes of the Law and Justice Party, the European Commission dislikes its stance on issues, leading to it taking action against Poland. The Commission, however, stresses that it’s working constructively with Poland’s government to get funds released. Christian Wigand, a spokesperson for the European Commission, tells Global Insight that the Commission is ‘in dialogue with Poland to ensure that the enabling condition on the Charter of Fundamental Rights [which impacts on the Cohesion Fund] will be fully met’ and it’ll remain ‘in contact with Poland to ensure that the commitments regarding judicial independence will be fulfilled’.
It has been widely reported that with the arrival of the new coalition government in Poland, at least some of the EU funds will be released over the coming months. But, observers say, implementing the necessary checks and balances to nurture an independent judiciary and courts that are less politically charged is going to be extremely difficult, not least because President Duda has a power of veto and is in situ for another two years.
One place to start would be to implement the judgments of the European courts. But even that’s not straightforward. ‘The dilemma is how to execute those [judgments] and obey them in a constitutional way when President Duda has the power to veto new laws’, says Kieszkowska. ‘How does the future coalition government undo the damage […] caused without being able to make changes to the law? They can freeze certain mechanisms; it can stop those processes that are penalising judges for following the [judgments] of Strasbourg and Luxembourg. Parliament has the power to dismiss politicised members of the NJC but it can’t appoint new ones because they should be selected by judges and not politicians.’
Further, the Constitutional Tribunal itself, the ‘guardian’ of the Polish Constitution, is ‘packed’ with those nominated by the Law and Justice Party, says Tomasz Cyrol, Council Member (Poland) of the IBA European Regional Forum, who has his own legal practice in Kraków. For instance, from January until early December, the Tribunal had not made a ruling on a proposed law that would, to some degree at least, bring the judiciary back in line with rule of law norms. A ruling was finally issued on 11 December and the law was ruled unconstitutional. The Tribunal did this ‘knowing that this could prevent funds from being released by the EU’, explains Cyrol, in his view ‘because this could now discredit the incoming government’.
The Constitutional Tribunal didn’t respond to Global Insight’s request for comment.
‘The new government has a social mandate from the election to work hard to restore the rule of law. But there is a fundamental problem about how to undo what the Law and Justice Party has done to the judiciary and the legal system without playing the same political game’, adds Cyrol.