The Sejm, the lower house of Poland’s parliament, voted on Friday to pass controversial legislation that would introduce strict disciplinary measures against judges that refuse to accept the validity of judicial reforms, including the possibility to fire them.
The ruling Law and Justice (PiS) party says that the measures are necessary to prevent judges from “undermining” the legal system. But opposition parties describe them as an attempt “muzzle” judicial opponents of government policies. The European Commission, as well as the UN’s and Council of Europe’s commissioners for human rights, today called on Poland to halt work on the bill.
One judge describes the new rules as akin to “the imposition of martial law in the judiciary”. Earlier this week, the Supreme Court, which has been a primary target of the government’s judicial overhaul, warned that the legislation would “infringe EU treaties” and “in the longer run [lead to] the need to leave the EU”.
Thousands of people have been out on the streets in Polish cities to protest in defence of the courts following the ruling party's proposal to introduce severe new disciplinary measures against judges who do not accept the validity of judicial reforms https://t.co/8ABrKNITjh
— Notes from Poland 🇵🇱 (@notesfrompoland) December 18, 2019
The passing of the legislation followed two frenetic days in parliament, as PiS rushed it through the legislative process in the same manner that became its trademark for controversial judicial reforms during its first term in office. Now, however, the ruling party faces an opposition-controlled Senate that can delay, though ultimately not block, the passage of the bill.
Opposition forces in the Sejm, however, were in disarray yesterday, after an embarrassing spectacle during a series of morning votes on the new legislation. In each of the three votes, PiS won by a small margin that could in theory have been defeated had around 30 oppositions MPs not failed to turn up for work.
Some of the absent MPs claimed personal reasons had prevented their presence. Others argued that the votes were largely symbolic, as PiS would have been able to push through the legislation anyway. But their party leaders were not impressed, with the largest group, Civic Coalition (KO), promising to fine those who failed to show up.
Excuses offered by absent opposition MPs:
"We could've mobilised, but what would it really have achieved?" (Barbara Dolniak)
"The importance of the votes is overestimated. PiS would do what it wants anyway" (Maciej Gdula)
"Sorry I though the votes were later" (Andrzej Rozenek)
— Notes from Poland 🇵🇱 (@notesfrompoland) December 19, 2019
Following heated debate in the chamber, the legislation then passed its first reading and was sent to the parliamentary judiciary committee. During a stormy late-night session that lasted for ten hours, finishing around 5.30 am (another trademark of PiS’s time in power), the committee’s PiS majority accepted 22 amendments to the legislation from the ruling party while rejecting 80 proposed by the opposition.
The amendments were presented as a means to soften some aspects of the new disciplinary regime. This followed a warning from experts at the Parliamentary Analysis Bureau that the initially proposed bill was incompatible with EU law. Concerns were also raised by Agreement (Porozumienie), the most moderate of the three right-wing parties that make up Poland’s ruling camp.
Some controversial parts of the legislation – such as the requirement for judges to submit reports on aspects of their online activity – were removed during committee. But many others remained, reports Wirtualna Polska, which also notes that an amendment was added strengthening the powers of the Supreme Court’s disciplinary chamber, a body created by PiS and which the Supreme Court itself ruled this month should not be recognised as legitimate under Polish and EU law.
As the legislation returned to the Sejm for discussion and a final vote today, it was strongly condemned by international organisations. In a letter to the Polish president, prime minister and speakers of both houses of parliament, European Commission vice-president Věra Jourová urged work on the legislation to be halted until it had been properly consulted, including with the Council of Europe’s Venice Commission.
“National law must not be used to undermine EU law”, warned Jourová, adding that there is “a strong expectation that Poland will take full account of the case law of the Court of Justice”.
I sent a letter to PL authorities (@prezydentpl @elzbietawitek @profGrodzki @MorawieckiM) on the draft legislation introduced in @PLParliament. I invite all State organs not to take fwd the legislative proceedings b4 carrying out the necessary consultations with all stakeholders.
— Věra Jourová (@VeraJourova) December 20, 2019
Polish government spokesman Piotr Müller dismissed the commission’s concerns, saying that Jourová must have “a lack of reliable information” about the situation in Poland because “someone unfortunately has been telling [her] things that are not [actually] happening in Poland”.
Jourová’s warnings were, however, echoed by the Council of Europe’s commissioner for human rights, Dunja Mijatović, who called for the passage of the law to be delayed, warning on Twitter that it “further curtails judges’ and prosecutors’ independence and freedom of expression”.
The office of the UN’s high commissioner for human rights likewise said that the legislation “risks further jeopardising the independence of the judiciary in Poland” and “may prevent judges from fulfilling their legal obligation, under EU treaties, to apply EU law”.
Despite these warnings, the legislation was passed by a majority on Friday afternoon. The votes in favour came the PiS-led ruling camp, with all the main opposition parties voting against and the far-right Confederation (Konfederacja) party abstaining.
The legislation will now be passed to the Senate, whose speaker, Tomasz Grodzki of KO, announced today that he would “pay close attention” to Jourová’s concerns and “seek the opinions of the Venice Commission and [other] experts”. The final form of the law must “maintain the separation of powers”, said Grodzki, quoted by Do Rzeczy.
Main image credit: Jakub Orzechowski/Agencja Gazeta
Daniel Tilles is editor-in-chief of Notes from Poland and assistant professor of history at the Pedagogical University of Krakow. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, The Independent and Dziennik Gazeta Prawna.