Polish judicial bill to unlock EU funds “unconstitutional on many levels”, says Supreme Court spokesman

A proposed law to reform Poland’s disciplinary system for judges – which the ruling party hopes will unlock billions of euros in EU funds frozen over rule-of-law concerns – is “unconstitutional on many levels”, says the spokesman for the Supreme Court.

A government spokesman dismissed the remarks, noting that the Supreme Court is not responsible for assessing the constitutionality of laws. However, a number of other legal experts, judicial figures and politicians have also argued that the legislation violates the constitution.

Among them is the government’s own justice minister Zbigniew Ziobro , who has rebelled against his colleagues by opposing the bill. He today published an open letter to President Andrzej Duda warning him that the measures are “dictated by Brussels” and “contrary to the Polish constitution”.

The legislation in question was passed by the ruling Law and Justice (PiS) party in the Sejm, the lower house of parliament, on Friday and has now moved to the upper-house Senate, where the opposition have a majority.

The proposed law would remove responsibility for assessing disciplinary cases against judges from the Supreme Court’s chamber of professional responsibility, which was itself only established six months ago in a previous effort to unlock EU funds.

Cases would instead be heard by the Supreme Administrative Court (NSA). The bill also proposes expanding the possibility of launching a process to assess the independence and impartiality of judges.

Yesterday, the Supreme Court’s spokesman, judge Aleksander Stępkowski, warned that “the act adopted [by the Sejm] is unconstitutional on many levels”.

It “allows for the permanent removal of legally elected judges”, he told the Polish Press Agency (PAP). The fact that judges would have to work “under the threat of a negative assessment by the Supreme Administrative Court…constitutes a far-reaching weakening of judicial independence”.

As a result, “constitutional guarantees of judicial independence have been hollowed out of their essential content”, Stępkowski added.

Additionally, he argued that the legislation was “not actually shaped by representatives of the nation, but by a small group of negotiators from the government and the European Commission, whose democratic mandate often raises doubts”.

That “violates the constitutional principle of protecting constitutional identity in the process of European integration, which clearly indicates the organisation of the judiciary as a sphere in which Poland has not transferred any competences to the European Union”.

Stępkowski’s concern over “the removal of legally elected judges” relates to a long-running dispute over the National Council of the Judiciary (KRS), the body responsible for nominating judges.

It was overhauled by PiS in a manner that rulings by Polish and European courts have found rendered it no longer a legitimate body. As a result, many judges appointed under the old KRS do not accept the legitimacy of judges nominated by the new one – who include Stępkowski and the Supreme Court’s chief justice, Małgorzata Manowska.

During parliamentary committee hearings on the new bill last week, Manowska, like Stępkowski, warned that the legislation “contradicts the constitutional procedure for appointing a judge” and “violates the principle of irremovability of a judge”.

Their concerns were echoed today by Ziobro – who has overseen the government’s overhaul of the judiciary as justice minister since 2015 – in an open letter to President Duda – who has publicly expressed doubts over the proposed law – in which Ziobro said that it is “contrary to the Polish constitution”.

“The law, dictated by the European Commission, undermines the constitutional powers of the president to appoint judges and the permanence of appointments,” wrote Ziobro. “This strikes at the principle of irrevocability and, consequently, limits the independence of judges.”

The new measures would “lead to anarchy and destroy trust in the state”, warned the minister, adding that “decisions about Poland should be made in Poland, not in Brussels or Berlin”.

It is, however, not only those invested in the government’s judicial overhaul, but also many of its opponents, who have argued that the newly proposed measures violate the constitution.

Yesterday, a collection of thirteen civil society groups – including Amnesty International, the Helsinki Foundation for Human Rights and bodies representing Polish judges – wrote to Senate speaker Tomasz Grodzki to warn that many aspects of the bill “violate constitutional principles”.

Separately, the chief justice of the Supreme Administrative Court, Jacek Chlebny, warned a parliamentary committee last week that giving his court authority over disciplining judges would “go beyond [its] constitutional competences”, reported legal news service Prawo.pl.

Government figures have, however, rejected such claims.

Piotr Müller, the government’s spokesman, told Polsat News yesterday that the legislation would be passed by the Polish parliament, not the European Commission. “I agree with judge [Stępkowski] that it is Polish legislation which is supposed to regulate the issue of justice.”

Müller added that, in any case, the Supreme Court spokesman’s views “do not matter in the sense that it is the Constitutional Tribunal – not the Supreme Court – that decides on the constitutionality of laws in Poland”.

Meanwhile, Prime Minister Mateusz Morawiecki commented on Ziobro’s letter by saying that “we know [his] opinions” and “we disagree with them in terms of the interpretation of the potential impact of these proposed changes on the justice system”.

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.