A Polish legal road roller: Can the political sentence be stopped?

The unexpected presidential veto has temporarily stemmed reforms that could have significantly undercut judicial independence. While the veto may partly demonstrate the value of formal checks and balances, even when the same political group controls all veto players, it may have merely delayed the train of the ‘revolution-by-law’ that could soon sweep presidents of ordinary courts, CSOs and the private media – writes Łukasz Bojarski.

May you live in interesting times! This ironic traditional curse is being quoted repeatedly in Poland lately. The situation concerning the so-called ‘judicial reform’ in the last weeks has changed several times. On 12 July 2017, the Polish Sejm (lower house of parliament), controlled by the Law and Justice (PiS) party, finally enacted the Law on Ordinary Courts (LOC) and the Law on the National Council of the Judiciary (NCJ). On the same night, at 11:30 p.m., a draft law on the Supreme Court was announced on the website of parliament, a document of 80 pages (and 130 with the explanation) that was not officially made public, including to state organs, the President and the Supreme Court itself. A week later, the Sejm passed it (three readings in three days) and on Thursday 22 July at 2 a.m., the Senate approved the law, as one of the Chairmen of the Supreme Court, S. Zabłocki, noted, with the speed of Pendolino (fastest train in Poland).

For more than a week, from 16 July, gathering in front of the Supreme Court, tens of thousands of people defended their courts. Crowds in cities, hundreds or sometimes just several people in about 150 towns protested without political emblems, meeting only with candles – which became a symbol of the movement (chain of lights), national flags, and some posters and chanting focused on the constitution, independent courts and demanding presidential ‘3 x veto’. Quite unexpectedly, on 24 July, the President, who is affiliated with and a former member of the PiS, vetoed two of the three laws. Accordingly, the laws concerning the Supreme Court and NCJ will return to parliament. The president signed the LOC. Is this only adjournment of a fait accompli, or a good example of the value of formal checks and balances, even when the same political group controls all veto players?

The ‘good change’ against elites and the ‘judicial cast’

As noted in a previous ConstitutionNet contribution, ‘the good change’ (dobra zmiana), as PiS labels its efforts, has detailed plans it intends to realise step-by-step. It started with taking over the public broadcaster that now resembles the propaganda machine of the Peoples Republic of Poland that ended in 1989. The ruling party subsequently liquidated the independent public prosecution and re-established the personal union of the minister of justice and the prosecutor general. The Constitution Tribunal was neutralised and filled with justices that in part openly support the government. Some other public agencies and institutions went through drastic changes resulting not only in changing the top managers but also the whole or big part of their staff. It is according to politicians a planned change of elites, or creation of new ones dependent on the government. As the Minister of Justice/Prosecutor General declared, taking over the Constitutional Tribunal was a precondition for judicial reform. The unconstitutionality of the judicial reforms was in a way planned. And it happened, after some preparation in the form of months of propaganda presenting judges as a separate ‘cast’ and courts as corrupt, filled with unethical judges deliberately hurting people.

The law on the NCJ, which safeguards the independence of courts and judges and elects judges for presidential appointment, would terminate the term of office of its 15 members – judges elected by their peers, despite the express constitutional guarantee of a four year term. Before this measure, due to the President’s hesitation, the Minister of Justice challenged the previous law in the newly constituted Constitutional Tribunal, which declared (with approval of five ‘new’ judges) the previous law on the NCJ unconstitutional, reinforcing the government’s position. Under the law, the Sejm (and not the judges) were to elect new NCJ members, which after the demand of the President would require a qualified majority vote of 3/5 of MPs present and voting. The law does not, however, establish any mechanism to overcome possible political deadlocks. The law would also divide the NCJ into two sections – one with the majority of politicians and one with 15 judges. The Constitution does not anticipate either of these procedures. The LOC, which the President signed, besides a number of technical provisions and some possible improvements, gives unprecedented powers to the minister of justice. Within six months, the minister can unilaterally and without any consultation dismiss any president of around 300 ordinary courts – district, regional and appellate, appointed according to previous laws for six-year terms.

The Law on the Supreme Court and the ‘super’ Minister of Justice 

Immediately following the passing of the NCJ law and the LOC, on the same day at 11.30 p.m., the draft law on the Supreme Court was presented with the clear aim of passing it within a few days, before the parliamentary recess. To bypass the obligatory consultations, the draft was brought by MPs (and not the government), who probably signed without actually seeing the text of the draft law (one of them even admitted it in public asking for removal of his signature). The law surprised everybody in the legal circles and apparently the President was not consulted. It also went much further than the rumours for months. The law, passed a week later, without any serious debate, provides that all the Supreme Court judges will retire automatically on a day after it enters into force, with the exception of those indicated by the minister of justice and needed for organizing a new entity. The forced retirement would include the First President of the Court whose six years term of office is protected directly in the constitution. The role of the President of the Republic was initially omitted, although the adopted law empowers him to refuse extension of the service of Supreme Court justices, but had no influence on those dismissed.

Furthermore, the minister of justice would control the composition of the new Supreme Court. The minister would personally select the judges (one for one position), without any competition, despite the fact that the appointment procedure envisages the opinion of the ‘new NCJ’ and presidential appointment. The law also lowers the minimum qualifications and creates the possibility of appointment to the Supreme Court of lawyers with 10 years’ experience. The constitution provides for the appointment of judges for an indefinite period and prohibits their removal. Despite this, the law relies on a literal wording of article 180(5) which provides 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’. This extraordinary provision, which was in fact intended to safeguard judges, was presented as a reason to fire all Supreme Court judges (with full pension). The retired judges could apply to the minister of justice to continue their career in lower ordinary courts, but only with approval of the minister. The current Minister openly and in populist way attacks judges and the courts. Since the change of the court system was given as a reason for the liquidation of the Supreme Court, a new internal structure was designed. Instead of four existing chambers (civil, criminal, military and labour, social security and public affairs), three were designed: public, private and disciplinary. Under the law, the minister of justice would prepare bylaws regulating the structure and organization of the Court. The only chamber described in detail in the law is the completely autonomous, even from the Supreme Court president, disciplinary chamber adjudicating disciplinary matters concerning judges and other legal professions – bailiffs, advocates, legal advisors, notaries and prosecutors. The minister of justice would also in fact select (as described above) the disciplinary judges, who would enjoy an unprecedented 40% extra salary.

Understanding the context of the proposed reforms

Official justification of the judicial reform is different from the opinions of commentators. The government argues that it is in fact strengthening judicial independence, but also their accountability and capacity. Legal professions, scientific circles, the Polish Academy of Science, universities, different institutions, including parliamentary analytical centres, CSOs, protested and formulated opinions on the unconstitutionality of the law. International bodies, including the European Commission, members and President of the European Parliament, Commissioner for Human Rights of the Council of Europe and Secretary General of the Council of Europe and OSCE, have also urged the Polish government to refrain from limiting judicial independence.

Following the neutralisation of the Constitutional Tribunal, which is seen as the end of real constitutional control, scholars and lawyers discussed disperse constitutional control, urging regular judges to enforce the constitution directly. By taking over the Supreme Court, and regular courts, this possibility would effectively be curtailed. Additionally, there are cases of great interest to the ruling party pending before the Supreme Court. One is connected to the Minister Coordinator of Special Services, M. Kamiński, who was pardoned by the President in order to take up the position.  Kamiński was pardoned after a court of first instance found him guilty, but before decisions on appeal – a procedure unknown in Poland as only persons finally sentenced might be pardoned. The second case refers to the current President of the Constitutional Tribunal, J. Przyłębska, who was appointed to the position through a problematic (possibly illegal) procedure. The proposal that all Supreme Court judges would be retired on the next day of entry into force of the law could have been planned to stop the pending cases before the Court.

The creation of a new disciplinary chamber in the Supreme Court, with specially selected and remunerated judges, could have a chilling effect and real risk of penalizing independent judges and other lawyers. Under the law, public prosecutors (not just disciplinary spokesperson) could accuse in the disciplinary proceedings if the minister of justice/prosecutor general decided so. The current Minister has already initiated disciplinary proceedings against judges for delivering verdicts he did not agree with. Finally, the Supreme Court controls the validity of referenda and elections. The president of the Court also automatically serves as the Chairperson of the Tribunal of State, the body prosecuting violations of the constitution or statutes committed by presidents, ministers and other top figures in the exercise of their official powers. Taking over the Supreme Court creates the possibility of using these competences for political reasons.

An unknown future in an unpredictable country

To overturn the presidential veto, parliament requires a 3/5 majority in the Sejm (without the involvement of the Senate), which is unlikely to obtain. Quite unexpectedly, on the day of the veto, Prime Minister B. Szydło admitted that the aim of the reform was not just structural but personal, a rationale that was not given publicly before. In an apparent confirmation of the collective responsibility of judges, she said that effective changes must have a broad personal dimension, and people who are responsible for alleged previous fatal practices have to leave. She also attacked judges and courts and declared strongly that the government will not back away in its reform efforts. Governmental propaganda against judges continues. Thousands of protesters that gathered for a week in front of courts, parliament and the presidential palace were called by the Minister of Interior as walkers/strollers and tourists. The state TV labelled gatherings as a ‘putsch’ and protesters as ‘defenders of paedophiles and alimenciarzy [those who refuse to pay alimonies]’.  

In contrast, the President of Republic, A. Duda, when announcing the veto on the NCJ and the Supreme Court laws, supported governmental efforts in reforming the judiciary, but he recalled the constitution in general and lack of tradition of such strong position of executive power vis-a-vis the judiciary and declared that the border was crossed. However, in his speech he cited not the constitution but the words of his advisor, Z. Romaszewska, an icon of the underground and Solidarity movement in communist Poland, who apparently told him: ‘I already lived in a state in which the Prosecutor General had uncontrolled superpower and I would not want to come back to it again’.

Although the President vetoed the two laws, subsequent attempts of similar character are very likely. In the meantime, the laws regarding ordinary courts and the National School of Judiciary and Public Prosecution will come into force. The laws allow the minister of justice to dismiss court presidents and through them judges playing administrative functions, as well as to appoint new assessor judges (junior judges) to positions that were saved for months in order for the minister to fill, instead of the NCJ and the President of the Republic (around 500 positions). The last solution is incompatible with a 2007 decision of the Constitutional Tribunal, which found that the minister, as a representative of the executive power, might not appoint assessor judges. Consequently, assessor judges disappeared, until their reinstatement in the recent law, under which the minister of justice will appoint them for an infinite period of time.

While regressive, without the government control of the Supreme Court and the NCJ, these possible developments hopefully will not significantly diminish the independence of the judiciary. But the future is unknown. The actions of the European Commission, which has urged the Polish Government to refrain from limiting the separation of powers and judicial independence, may have some influence. The Commission has indicated that it will consider the invocation of Article 7 of the EU Treaty – so-called ‘atomic weapon’ – against member states resulting in serious sanctions. But so far, none of the previous alerts or threats from the Commission, as well as other international bodies, has brought any positive result.

The delay of the judicial reform effort may postpone the next frontiers in the ‘good change’ that were already declared by some influential politicians and members of parliament representing PiS  – attack on the private media and liberal CSOs as traitors and foreign agents following the examples of Russian President Vladimir Putin and Hungarian Prime Minister Victor Orban. For instance, A. Mularczyk, a member of parliament, called for action against CSOs, and the National Radical Camp together with Ruch Narodowy already presented in the Sejm an idea for a law prohibiting the foreign financing of the ‘5th column in Poland’. Another member of parliament, K. Pawłowicz, who already several times called for the fight against the private media, told a journalist: ‘we will deal with you in the autumn’.

Only time will tell whether the good change, which has been characterised as a revolution-by-law, will continue as a road roller, or whether the presidential veto will postpone or may be even partially stop it.

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.