Last year in Poland was marked by heated discussions linked with the provision of European Union Recovery Funds, which have been promised to the Polish government on condition that it successfully restores the rule of law, infringed through multiple reforms of the ruling coalition. Introduced over the last seven years, they largely touched upon the judiciary system, increasing its dependence on the legislative branch.
Recently, the Law and Justice party apparently realized the importance of the matter and noticed the impact that it may have on their public support before the upcoming parliamentary elections. Thus, it created a new draft bill aiming to “fix” the defective judiciary.
The changes it would bring refer mostly to disciplinary and immunity matters, or rather to the question of which entity should assess the independence and impartiality of the judges. It shifts this responsibility from the Professional Liability Chamber of the Supreme Court, appointed by the president Andrzej Duda in 2022, to the Supreme Administrative Court. Another effect of its clauses would be the extension of the authority to initiate a so-called “test of independence and impartiality of a judge” to the judicial institutions.
Although the government states that the draft bill was consulted with the European Commission and does not pose any threats to the constitutional order in the country, there are multiple environments, such as the Supreme Court itself, that deny this claim, fully denouncing the project. The Court’s official assessment, signed by its first chairperson Małgorzata Manowska, argues that it is not only “unambiguously against the constitution,” but also “inconsistent and fragmentary,” which makes its execution virtually impossible in a legal manner.
Polish law is indeed very precise if it comes to the responsibilities of both the Supreme Court and the Supreme Administrative Court. In the article 183 of the constitution one may find that “the Supreme Court supervises the activities of common and military courts in adjudication,” whereas the following paragraph 184 narrows the competence of the Supreme Administrative Court to the “control over the activities of public administration,” which most often boils down to the evaluation of local government resolutions’ consistency with other legal acts.
Transferring any authority from the first institution to the latter would therefore not only violate the spirit of the constitution, but also its very letter. However, it is not the end of the bill’s flaws, since on top of that, it infringes upon the presidential prerogatives to appoint new justices. Such change could create a legal chaos in the judiciary branch on an unprecedented scale.
The act was introduced in the lower house of the Polish parliament on the thirteenth of January 2023, where it caused much controversy among the opposition deputies. The ambiguous stance of different environments on the bill’s lawfulness and an opportunity to finally obtain the money from the European Union Recovery Funds were both factors that influenced the parties’ decision whether to support the initiative or not.
In the end, 203 MPs voted in its favour, 52 opted against it and 189 abstained. Such a result was enough for the bill to pass to the opposition-led senate, where it may be adopted, amended or rejected as a whole. In case of receiving the majority of votes, it will be eventually submitted to the president for his signature. This is, however, where we may witness its ultimate failure, since the head of state, dating back as far as to December 2022, when the bill was first presented to the public, declared that he will not agree for any measures inconsistent with the constitution or undermining the appointment of justices in Poland.
Written by Mateusz Gwóźdź