Redefining judicial independence in Poland

After successfully neutralising the Constitutional Tribunal and the public broadcaster, the PiS government is now attempting to capture the National Council of the Judiciary and the courts, all through the regular legislative process without changing a single word of the Constitution.  

What had to happen in Poland – for many an example of exemplary transformation for 26 years – that judges from many Polish courts stopped their work on the noon of 20 April for half an hour? What made thousands of common citizens sign a petition defending the independence of judges and organize street performances? What made thousands of lawyers organize three congresses (the upcoming one planned for 2,500 people) devoted to discussion on threats to judicial independence?

The answer is not optimistic – the current government wants absolute power, and does not stand being constrained or criticized. All critics, both international and national, are portrayed as inaccurate or mistaken, having ulterior intentions, or simply as enemies, traitors, and citizens of the ‘second sort’. Sovereignty has become a very popular word, and Article 4.1 of the Constitution the most often quoted: ‘Supreme power in the Republic of Poland shall be vested in the Nation’. Other provisions safeguarding the separation of and balance of power between branches of government, and guaranteeing the independence of the judiciary have to queue behind sovereignty.

The judiciary, the government asserts, must be totally transformed and brought back to the Poles. In the name of sovereignty, politicians seek to take over the administration of justice, the appointment of judges, and the election of members of the National Council of the Judiciary (NCJ). The Polish Parliament is currently discussing all these changes and is likely to pass them in the matter of weeks.

The aforementioned reforms, and further laws in the pipeline such as the Law on Ordinary Courts, come in the wake of other reforms with similar goals: undermining institutional constraints on the power of transient democratic majorities. The Constitutional Tribunal (CT) has effectively been neutralized, and the Polish public broadcaster captured. Unlike similar campaigns in Hungary, where the ruling party systematically attacked independent institutions through constitutional amendment, the reforms in Poland are being achieved without actually changing a single word of the constitution, by a government that was formed without receiving the absolute majority of the votes. The Law and Justice party (Prawo i Sprawiedliwość, PiS), which won the parliamentary election in Poland in autumn 2015, only received 37,5% of the votes, but due to the skewed effects of the electoral law obtained the majority of seats to establish a government.

This piece discusses the proposed reforms to the NCJ and places them in the wider contextual puzzle.

Why reform the NCJ? Unravelling the puzzle

The PiS government’s desire to reform the judicial system has been shrewd in mystery. As was the case with the earlier reforms, no concrete proposals were publicly presented, no debate was announced, and there was no invitation to discuss the direction of the reforms, or possible alternatives. Quite the opposite, there were only gossips, or some leaks, often contradictory, from the Ministry of Justice (MoJ).

When members of the NCJ during the plenary meeting asked the Minister of Justice, Zbigniew Ziobro, who is a member of the Council, ‘what kind of reform is the ministry preparing, maybe he could draw at least some directions?’, his answer was short and crude – the reforms are going to be deep and fundamental.   

Subsequently, Minister Ziobro revealed more. In September 2016, he declared that the reform is ready, but will be announced only ‘after solving the problem with the Constitutional Tribunal’. It was the next reason to worry, with the Minister aware that his proposals may not pass the constitutionality test. However, after more than a year of consistent attack on the Tribunal, ‘the problem’ has been solved, the CT has in fact been taken over and partially paralyzed (including sending the vice president on obligatory vacation till the end of his term, and suspending three judges, who were on the bench since 2010, blatantly challenging the way they were elected). The ground has been laid to target the judiciary without the need to amend the constitution (that requires a qualified majority) and without fear of any obstruction.

According to those in power, the judiciary does not just need reform. It needs revolutionary changes to give it back to the Poles and to ‘de-communize’ the system 28 years after the end of communism. Revolutions need their enemies, and in Poland, lawyers have become one. The public media, politicians, MPs and members of the government daily attack the judiciary as a whole, courts and particular judges, often quoting ‘polls’ showing low public trust in the judiciary, and claiming the need for reform. The list of accusations and labels is long and very creative, sometimes vulgar: government ‘will end with the extraordinary judicial cast’ and ‘finish judicial cliques’.

The planned judicial ‘reform’ packages include two significant laws: one on the NCJ, and a second (just brought before Parliament) law on Ordinary Courts (LOC). There are also already leaks that the Supreme Court is the next target (a draft law prepared in the MoJ envisages, for instance, shortening the term of office of court presidents and chairmen of departments).

The whole legislative process looks in fact like the answer Minister Ziobro gave to the NCJ. The judiciary is not being consulted; there is no debate, only startling draft laws, seemingly processed at the speed of light. Most of the projects (including several on the CT and the last one on Ordinary Courts) are brought to the parliament by groups of MPs, despite public knowledge that these laws emanate from the government. The strategy is intended to by-pass legislative procedure, as governmental/ministerial proposals (in contrast to those brought by MPs) have to go through the public consultations phase.

This, quite uniquely, is the case with the draft law on the NCJ. Prepared officially by the MoJ, it was accepted and announced by the Council of Ministers on 7 March 2017. The consultation process was brief, with the NCJ, and other main actors, receiving only four working days to express its opinion on the law. And, of course, the draft surprised everybody. The justifications for the systemic and serious change are reasoned in just six pages, with some comparative information on judicial councils, without analysis, or references to the Polish situation, but still misinterpreted and manipulated. There is no data, no statistics, and no detailed arguments. Just general statements like those saying that the draft aims at the ‘fulfilment of the principle of representativeness of all professional groups of judges’, and ‘increasing the degree of democratization of the selection mode’ of members of the NCJ.

What are the proposed ‘revolutionary’ changes?

The NCJ was postulated during the Solidarity movement already before 1989 and established in 1990 as an outcome of the ‘roundtable discussions’ on democratisation. It is composed of 25 diverse representatives: ex officio Presidents of the Supreme Court and the Main Administrative Court, the Minister of Justice, one person appointed by the President of the Republic, 15 judges elected by their peers, and six MPs – four from the lower house and two senators. While there is no constitutional or legal requirement, traditionally, opposition groups are represented among the MPs. Currently, both Senators and two of the four MPs are from PiS. There is no guarantee that this practice will continue. The NCJ safeguards the independence of courts and judges, and selects judges for appointment by the President of the Republic. It also comments on draft laws prepared by the government and parliament, and has competences regarding judicial ethics.

The draft brought by PiS proposes three main changes to the Act on NCJ:

• First, the 15 judges would no longer be elected by their peers but by the lower house of parliament;
• Second, the NCJ would be divided into two sections: the first one comprising of ex officio members, MPs and the member appointed by the President of the Republic, and the second comprising of the 15 judges. All the personal decisions (on election of judges from among candidates) would have to receive majority support in both sections sitting separately; and
• Third, the term of office of the current judge-members of the NCJ would be terminated, allowing parliament to appoint new ones.

Starting from the end, the term of office of the 15 judges is specifically guaranteed in the Constitution to be four years. There seems to be no room for interpretation. In fact, the President of the Republic voiced his concern, which probably caused the short break in the work on the Act. So this proposal could be dropped or changed.

Dividing the plenary of the NCJ into two sections seems to be politically motivated with no constitutional basis. The first section has been labelled as ‘political’, as the MPs, the Minister and the person appointed by the President would have a majority, which could block decisions of the NCJ. The only exception is, in case of disagreement of the two sections, a decision could be made by the unanimous voting of the 17 judges – two presidents and 15 elected judges, which is practically very difficult to reach. The Constitution creates one NJC, not two sections, with a package of competences addressed to the Council, not its part. Moreover, the proposal would mean that the vote of different members would have different weight.

Finally, the Constitution does not stipulate how the 15 judges would be selected. Nevertheless, it seemed obvious (as described in the NCJ Act and confirmed in the doctrine and jurisprudence of the CT) that the judges themselves should choose those members. The procedure empowered all judges directly (Supreme Court, Main Administrative Court, Military Courts), or via representatives (common courts) to elect their representatives to the NCJ. This process has been criticized as unrepresentative of the judiciary in that it resulted in the dominance of senior judges. The Association of Judges (Iustitia) presented an alternative proposal to ensure a more democratic procedure. However, it was dropped and instead political election has been proposed. There is nothing on how the 15 judges will be identified from a group of more than 10, 000 judges. Under the proposed law, the Speaker or a group of 50 MPs may simply propose their candidates. The judges’ association may only propose to the Speaker non-binding recommendations on the candidates. This bears the risk of appointment of judges with political affiliation and ties, undermining judicial independence. 

What is behind the reforms?

Of course, there are aspects regarding the NCJ that require discussion, and potentially reform. But the current proposal seems to have two sources.

The first, probably not very important, is the silencing of a critical entity. The NCJ opposes threats to judicial independence, actively defended the CT, works towards uniting judicial circles (organized Judges’ Congress where almost 1000 judges appeared), supported the 20 April action of judges who suspended at noon their work for 30 minutes, and met in the courts in order to choose one representative per court for future collaboration by creating some kind of unofficial autonomy/self-government. The threat to annul the terms of office of current members is a clear sign that the government wants to silence them.

The second, much more serious and dangerous, reason is the plan to change the procedure for judicial appointment. In fact, the Minister of Justice has already suspended for several months new appointments. There are hundreds of vacancies, and judges are complaining about the growing workload. The logic appears simple: first take over the NCJ, and then appoint new politically palpable judges.

The reforms to the NCJ should be seen in the context of other changes. For instance, there is a plan to lower the retirement age for judges from 67 for both sexes (70 in the Supreme Court) to 60 years for female, and 65 for male judges. The prolongation of work beyond the retirement age would require the consent of the NCJ and the Minister of Justice. This means that quite suddenly a number of judges (especially in the Supreme Court) would retire. So according to commentators, including Professor Adam Strzembosz, the first President of the Supreme Court in free Poland, the reforms are part of a broader plan to appoint people with ties to politicians and to subordinate the judiciary.

Other means include numerous changes in the draft Law on Ordinary Courts. This draft law provides that the Minister of Justice would appoint and dismiss all court presidents (and there are around 400 hundreds courts in Poland), and would have the power to award them with extra financial premiums. Currently, the Minister appoints only presidents of the high courts from among candidates accepted by the judges in those courts. The 11 Appellate Court presidents appoint hundreds of presidents of district courts. Considering the competencies of court presidents, their political appointment would dangerously undermine the independence of courts and judges.

A lost battle for judicial independence and separation of powers? 

The proposed changes are likely to be passed rather quickly. The draft LOC provides that it will come into force on 1 July 2017. The law on the NCJ may be enacted even earlier (during the Parliamentary session starting on 10 May). Despite the protests of the international community, including EU, CoE, OSCE, as well as strong resistance within the country from institutions like the Ombudsperson, courts, judges’ associations, CSOs, and academics, the government is unflinching - as was the case when neutralising the CT despite serious measures taken by the European Commission and several opinions of the Venice Commission.

But the government is not the only actor on this scene. What would be the reaction of judges? Would there be any? There are already voices encouraging judges to boycott elections to the NCJ and Ministerial proposals for courts presidents. Other lawyers, advocates, and legal advisors, have expressed their solidarity with judges. Also different protest actions of citizens and CSOs could bring some fruits. A survey published on 25 April reveals interesting results. More than 50% of respondents see courts in bad light, and 70% think they need reform. Nevertheless, only 21% support the idea that the Minister of Justice should appoint court presidents without the consultation of judges.

Overall, the PiS government appears to be opposed to principles of separation of powers and independent institutional constraints on the exercise of political power. It has actively worked to undermine the CT, the public broadcaster, and now the NJC and ordinary courts, with little or no meaningful public debate and participation. The government has largely deflected pressure against such systemic attacks, and it is unlikely to fold on the NCJ. The Polish experience amply demonstrates that fleeting majorities may use political power to undermine and break constitutional principles through ordinary legislative processes without changing a single word in the constitution. The lesson appears to be that constitution designers should be wary of leaving crucial details, such as decision rules in the constitutional court or the judicial council, for legislative completion. On the other hand, however, is there really a sure way to protect institutions from political majorities bent on undermining them, including by bypassing or breaching constitutional rules?   

Łukasz Bojarski is the co-founder and president of the management board of INPRIS, a Polish legal think tank. From 2010 to 2015, he was a member of the NCJ appointed by the President of the Republic.