The Council of Europe body responsible for monitoring the rule of law, known as the Venice commission, described the legislation as a “grave threat” that “puts at serious risk the independence of all parts of the Polish judiciary”.
A previous attempt to assume control of the justice system by the government in July was derailed by large-scale street protests and the surprise decision by the president, Andrzej Duda, to veto the proposals after they had been approved by the Polish parliament.
The presidential vetoes resulted in months of behind-the-scenes negotiations between Duda, a former PiS MEP, and Jarosław Kaczyński, the leader of PiS who nominated Duda for the presidency, raising hopes of a government climbdown.
But to the dismay of those who cheered Duda’s vetoes in July, the proposals announced last month as a result of those negotiations pave the way for the party to assume control of the National Judiciary Council (KRS), the body that makes judicial appointments, by terminating the term of office of the existing members and giving the parliamentary majority the right to nominate a majority of their replacements in the event of a stalemate.
“The reform is exactly as Kaczyński wanted it,” said Marcin Matczak, professor of law at the University of Warsaw. “He and his party will have full control of the National Judiciary Council, and therefore effectively control the appointment of judges.”
The supreme court legislation will force all supreme court justices over the age of 65 to retire, unless their terms are extended with presidential approval. Approximately 40% of the supreme court’s 86 judges are over 65; parliamentary proceedings on the legislation began last month on the supreme court president’s 65th birthday.
It includes a new mechanism for “extraordinary appeal”, whereby almost any case adjudicated since Poland’s present constitution was adopted in 1997 can be reopened if doing so has the support of the prosecutor-general, who is also the justice minister.
“Eighty per cent of Polish society claims that the most important problem in the Polish courts is that the proceedings last too long,” said Matczak. “So what does Duda do? He proposes a fourth instance of appeal, where almost any case in the past or future can be reopened by the government and considered by new judges, in courts controlled by PiS.”
Opponents note that the laws will give PiS overall control of the supreme court, which in addition to serving as the highest court of appeal for all civilian and criminal cases is also responsible for validating elections.
“The legislation poses a threat to democratic elections in Poland, because it will be possible to contest every outcome of elections by appealing to a politically dependent court,” said Michał Wawrykiewicz, a lawyer and co-founder of the Free Courts campaign, a civic initiative established in July to oppose the government’s plans.
The deliberations between Duda and Kaczyński served to marginalise the country’s liberal opposition and their argument that politicians had no right to negotiate over principles of judicial independence. “The veto and the discussion helped Duda and Kaczyński to dominate the public sphere in Poland,” said Michał Szułdrzyński, a columnist for Rzeczpospolita, a centre-right broadsheet. “It’s like the competition between Coke and Pepsi – there’s no room for anybody else.”
On Thursday, Beata Szydło resigned as prime minister, and will be replaced by Mateusz Morawiecki, Poland’s finance minister and a former banker. The appointment of Morawiecki, an English speaker, reflects hopes within PiS that he will prove a more effective communicator on the European stage.
Earlier this year, the European commission warned Warsaw that it would trigger the article 7 sanctions procedure if government reforms posed a “systemic threat to the rule of law”.
Small-scale protests have been held across the country in recent weeks, but some protesters worry that the illusion of compromise after months of internal negotiations will prove the government’s strategy successful.
“We need more than just lawyers and NGOs to stand up for the principle of judicial independence if we are going to stop this,” said Bohdan Widła, a lawyer who attended protests in Warsaw and Kraków in July. “The anger and enthusiasm of the protests over the summer seem to have dissipated – but I hope I’m wrong.”
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