Prime Minister Mateusz Morawiecki has asked the Constitutional Tribunal to assess whether yesterday’s Supreme Court resolution, which declared all judges appointed after a government judicial reforms to be illegitimate, is in accordance with the constitution.
The move comes amid a rapid escalation of Poland’s judicial crisis, which has included the European Commission seeking to suspend the disciplinary chamber of the Polish Supreme Court and Poland’s parliament passing a strict new disciplinary regime for judges who refuse to accept the validity of judicial reforms.
The Supreme Court’s new resolution, passed on Thursday, found that judges nominated by the National Council of the Judiciary (KRS) since its reformation by the ruling Law and Justice (PiS) party in 2018 are illegitimate. The resolution applies to judges of the Supreme Court, as well as of ordinary and military courts, and entered into force today.
This means that from now on, judges appointed since the reform of the KRS (which is responsible for nominating judges in Poland) should not be adjudicating, but their previous judgements remain valid. The only exception is the Supreme Court’s new disciplinary chamber: the resolution annulled all of its judgements, regardless of the date when were issued.
The Supreme Court’s decision is a direct consequence of a ruling by the Court of Justice of the European Union (CJEU) in November that Poland’s Supreme Court itself must ascertain the independence of the disciplinary chamber and the new KRS.
As a result, in December the Supreme Court ruled that “the KRS is not an impartial and independent body, while the disciplinary chamber is not a court within the meaning of EU and national law”.
Government figures reacted angrily to the Supreme Court’s latest resolution on Thursday. Janusz Kowalski, a deputy minister, said he did not “give a damn” about the ruling because he is “on the side of Poles” and “these 60 professors [on the Supreme Court] are not authorities for me”.
"Ja mam w nosie tych 60 profesorów, bo ja jestem za Polakami. To nie są dla mnie autorytety" – powiedział sekretarz stanu w Ministerstwie Aktywów Państwowych @JKowalski_posel w programie @AGozdyra "Polityka na Ostro".https://t.co/YUP0OWHFiV pic.twitter.com/D3woVLcE2d
— PolsatNews.pl (@PolsatNewsPL) January 23, 2020
Today, the prime minister accused “the Supreme Court judges of seeking to put themselves above the constitution.” He declared this to be “absolutely unacceptable” and said he was now “requesting the Constitutional Tribunal to verify it” in order to avoid “legal chaos”.
The tribunal is the body entrusted with assessing and resolving disputes over the constitutionality of legislation and international agreements. But it has itself been at the centre of controversy over the government’s judicial reforms.
In PiS’s first term, it engineered its candidate, Julia Przyłębska, a close associate of party chairman Jarosław Kaczyński, into the tribunal’s presidency (in an apparent breach of procedures). Judges nominated by the PiS-controlled parliament have a majority on the tribunal, and most of them have ties to the ruling party, including two former PiS MPs sworn in last month.
He also confirmed that the Commission has doubts about the legitimacy of the Constitutional Tribunal, controlled by PiS, that is supposed to oversee the compliance of the recent rule of law decisions with the Constitution – which probably infuriated the government even more.
— Zosia Wanat (@zosiawanat) January 24, 2020
Meanwhile, the European Commission also issued a request today for the CJEU to suspend the Polish Supreme’s Court disciplinary chamber as an interim measure until a final ruling on it.
— EU Court of Justice (@EUCourtPress) January 24, 2020
That followed a vote in Poland’s parliament yesterday to pass legislation that would introduce strict new disciplinary measures against judges who refuse to accept the validity of PiS’s judicial reforms. The bill was previously rejected by the opposition-controlled Senate, but that decision has now been overruled by the more powerful lower house, the Sejm, where PiS has a majority.
The vote was held despite appeals from the European Commission and Parliament, the OSCE, and UN’s and Council of Europe’s commissioners for human rights for the legislation to be suspended or withdrawn. Last week, the Venice Commission also issued an “urgent opinion” criticising the new bill.
Thousands of Poles have also protested in the streets against the new disciplinary regime for judges, including at a silent march in Warsaw at which Polish judges were joined by counterparts from around Europe dressed in their robes.
The bill now goes to the desk of the president, Andrzej Duda. Previous reports have indicated that he will sign it. And this appeared to be confirmed by the president himself last week in two combative speeches on judicial reform.
In the first, he responded to international criticism of the legislation by declaring that no one “will impose a system on us in foreign languages”. He warned that “black sheep among judges must be eliminated”.
That speech was followed by another two days later, during which Duda said that Poles must “cleanse our Polish home completely” by making it “clean, well-ordered and beautiful” and ensuring that judges “understand what their real role is”.
We must "cleanse our Polish home completely", said President Andrzej Duda during a speech at a beer hall in Katowice, defending the government's judicial reforms https://t.co/Nku3SOpE8r
— Notes from Poland ?? (@notesfrompoland) January 19, 2020
Image credit: KPRM/Flickr (under public domain)
Monika Prończuk is the deputy editor of Notes from Poland. She was previously the Nico Colchester fellow at the Financial Times, acting FT Poland correspondent, and journalist at OKO.press, an independent fact-checking media outlet. Her articles have appeared in Quartz, Financial Times, Politico, Gazeta Wyborcza and Tygodnik Powszechny.