Poland’s Constitutional Tribunal has issued two related rulings that support the government’s position in its long-running dispute with the Supreme Court over judicial reform.
The tribunal has deemed that the Supreme Court did not abide by Polish and European law in key recent judgements. But the Supreme Court has in turn dismissed the tribunal’s rulings as overreach, and accused it of unlawfully acting under government influence.
The developments threaten to foster further chaos in Poland’s legal system, which is increasingly taking on a dual nature between those who reject the legitimacy of the government’s judicial overhaul and those who accept it.
The dispute will also have significance at the EU level, given that one of the cases involved the implementation of a judgement by the Court of Justice of the European Union (CJEU). Earlier this month the CJEU rejected Poland’s argument that its internal judicial affairs do not fall under the European court’s jurisdiction.
The first ruling
On Monday, the tribunal ruled that a Supreme Court resolution declaring all judges appointed after a government judicial reform to be illegitimate is incompatible with Poland’s constitution and breaches articles 2 and 4.3 of the Treaty on European Union.
The resolution in question followed a ruling by the CJEU in November that Poland’s Supreme Court must ascertain the independence of the National Council of the Judiciary (KRS), the body that nominates new judges. In December, the court ruled that the KRS, since being overhauled by the government’s judicial reforms, “is not an impartial and independent body”.
In January, the court then declared all judges nominated by the KRS to be illegitimate and that they should not be adjudicating cases. That decision was declared “absolutely unacceptable” by the prime minister, Mateusz Morawiecki, who accused “Supreme Court judges of seeking to put themselves above the constitution” by violating the prerogative of the president to appoint judges. Morawiecki referred the case to the Constitutional Tribunal, which has now sided with the government’s position.
In response to Monday’s ruling, the Supreme Court itself accused the tribunal of exceeding its authority, and said that its initial January resolution should remain in force. Court spokesman Michał Laskowski, quoted by Gazeta.pl, accused the tribunal of using “false” arguments to try to give itself undue authority to adjudicate on Supreme Court resolutions.
His position was echoed by Anna Wójcik, a legal researcher at the Polish Academy of Sciences and and co-founder of website ruleoflaw.pl, who told Notes from Poland:
Constitutionalists have pointed out that the Tribunal does not have the right to adjudicate on this particular case. We will have a Constitutional Tribunal which assumes the right to judge the internal decisions of the Supreme Court, which are not matters of common law.
The second ruling
The tribunal followed Monday’s ruling with a related one today, which again fell in favour of the ruling camp.
When the Supreme Court called a session in January to issue its resolution on the legitimacy of judges nominated by the KRS, its competence to do so was challenged by Elżbieta Witek, the PiS speaker of the lower house of parliament.
In response to a request from Witek to settle the dispute, the tribunal today found that the Supreme Court had overstepped its prerogative, saying that it “cannot interpret provisions in a law-making manner” and through its resolution effectively reorganise the legal system.
The Supreme Court’s outgoing chief justice, Małgorzata Gersdorf, had refused to take part in a hearing on the case, arguing that the Constitutional Tribunal can no longer fulfil its duties due to the illegitimate appointment of some of its judges.
PiS in 2016 “captured” the tribunal by appointing its own judges instead of those legitimately nominated under the previous government, as well as by engineering Julia Przyłębska, a close associate of PiS chairman Jarosław Kaczyński, into the presidency of the court in apparent breach of procedures.
Most appointees to the tribunal during PiS’s time in power have close ties to the party, including two former MPs appointed in November, one of whom, Stanisław Piotrowicz, was ruling on the competency dispute alongside Przyłębska.
When justifying her refusal to appear before the tribunal, Gersdorf said that Przyłębska’s close relationship with Kaczyński “raise doubts as to the impartiality of the judge”, reported RMF24. She also said that Piotrowicz did not meet the legal requirements to be appointed to the tribunal.
The latest rulings by the tribunal are “proof of the increasing politicisation of the Constitutional Tribunal, which is overstepping its prerogatives,” says Wójcik.
The emergence of a dual legal system
Though in January the prime minister said he wanted the tribunal to intervene in order to avoid “legal chaos”, the latest rulings simply exacerbate it, argues Wójcik. “There is increasingly a dual legal system,” she says, with a division between “old” judges and the “new” ones appointed under PiS’s reforms.
Wójcik is unsure what will happen next. “The Supreme Court may now issue an answer,” but adds that it “does not have the right to adjudicate on rulings of the Constitutional Tribunal (which in turn does not have the right to rule on Supreme Court judgements), making the situation very strange.”
A lot now comes down to the lower rungs of the courts system, according to Wójcik. “The ball is in the court of judges and lawyers, as well as all the other people who operate the judiciary, as whether they will adhere to the Supreme Court’s ruling.”
That may prove increasingly difficult to pull off. In January, president Duda signed into law a set of strict new disciplinary regime for judges who refuse to accept the validity of judicial reforms. Earlier this month, the CJEU ordered Poland to immediately suspend the new system.
The Polish government has so far not indicated that it will comply with the ruling. Instead, the prime minister, Mateusz Morawiecki, said that the judgement “raises serious legal doubts” and may violate Poland’s constitution. He wants the Polish Constitutional Tribunal to have the “last word” in “resolving the dispute”.
Maria Wilczek is deputy editor of Notes from Poland. She also contributes regularly to The Economist and Al Jazeera, and has also written for The Times, Politico Europe, The Spectator and Gazeta Wyborcza.