Poland and the Rule of law: The arm-wrestling on Polish Supreme Court explained

24 July 2018 – Visegrad Insight (Warsaw)

In this interview, Assistant Professor at the Department of European Law at the University of Warsaw Paweł Marcisz explains how the ruling Law and Justice party has tried to curb the Supreme Court so as to extend its control over the judiciary system – adding to the current conflict with the European Union over the respect of the Rule of law in Poland.

Visegrad Insight: What has happened to the Polish Supreme Court?

Paweł Marcisz: First, a takeover. The Supreme Court is being hijacked by the governing party, Prawo i Sprawiedliwość (PiS) [ironically meaning Law & Justice]. A new Act on the Supreme Court was enacted in December 2017 to this end. The retirement age for judges was retroactively lowered from 70 to 65. One third of the judges was forced into early retirement as of July 2018 unless, in individual cases, the president of Poland let them stay. The President is from PiS, to be sure.

Second, brand new chambers. The new Act on the Supreme Court adds two chambers to the Supreme Court: a Disciplinary Chamber and a Chamber of Extraordinary Review and Public Affairs.

Why add these new chambers?

Because they will be fully staffed with new judges (plus lay jurors, for the first time introduced to the Supreme Court). These judges will be elected by the National Council of the Judiciary. The National Council of the Judiciary was hijacked by the government earlier this year. Its sitting members have been unconstitutionally dismissed and new members were elected by the Parliament (probably also unconstitutionally, though this is debatable).

Why did the government bother to create the Disciplinary Chamber and the Chamber of Extraordinary Review and Public Affairs?

The Disciplinary Chamber will decide in disciplinary proceedings against judges and the other chamber will, among other things, review elections to the Parliament and for the president, as well as hear cassation appeals in regulatory cases, including cases regarding administrative supervision over private TV networks. It will also hear a newly-created extraordinary remedy against judicial decisions in old cases. Which is likely to introduce chaos to our legal system. Summing up, the new judges, who are elected by government appointees, will decide on our popular elections, on private media freedom and on expelling unruly judges from the judiciary. What could go wrong?

Who is Małgorzata Gersdorf?

She is a professor of labour law at the University of Warsaw, author of numerous… OK, she is the First President of the Supreme Court (each chamber has its own president and the First President is on the top of the Court). Our government claims that she is no longer president as they forced her into retirement. According to the Constitution, which includes an expressed provision regulating the term of the First President of the Supreme Court, she should still be in office. She is also still contesting her de facto dismissal which is the reason she has become a sort of symbol for the resistance.

Who is Józef Iwulski?

A judge of the Supreme Court, who was appointed by President Gersdorf to perform the function of the First President should she be unable to perform her duties. Then, Andrzej Duda, the President of Poland, claimed that Mr Iwulski had been appointed by him. Well, there is no document of Duda appointing Mr Iwulski, Mr Iwulski clearly stated that Mr Duda had not appointed him and, according to the new Act on the Supreme Court, Mr Iwulski could not be a judge as he was also forced into retirement as he is over 65 years old. So, you may make your own judgement on that.

Is it all legal?

No. It’s utterly, totally, unquestionably, uncontroversially, indubitably unconstitutional. You cannot dismiss a judge in Poland, and forcing judges into early retirement amounts to dismissal. And the term in office of the First President of the Supreme Court is fixed in the Constitution; you can not alter it by forcing early retirement. You may not alter judgments after a certain time has passed in any form of (introduced ex post facto) extraordinary remedy. That’s against the principle of legal certainty.

However, all this really doesn’t matter. The government is unmoved by any questions of constitutionality. Worse, the Constitutional Court, the body deciding constitutionality of our laws, was hijacked by the government about two years ago. They simply chose new judges for the places already occupied by lawful judges, then manipulated the composition of the panels in sensitive cases by a judge they illegally appointed as the President of Constitutional Court and then it was over.

Is there anything else I should know?

Plenty of autocratic measures here, but when it comes to the judiciary, mainly the situation of the Supreme Administrative Court and lower courts. The Supreme Administrative Court deals with appeals in most administrative matters. Its judges are now being forced into retirement just like the Supreme Court; the main difference is that they are not protesting, at least not loudly. As for the lower courts, their presidents were replaced en masse by the Minister of Justice and the Attorney General at the same time, Mr Zbigniew Ziobro. And now the common courts judges will be watched by the new Disciplinary Chamber in the Supreme Court.

What is happening now?

As I am writing these words on July 19th, the Polish government is about to tighten its grip on the Supreme Court. Working on the new Act on the Public Prosecution Service, they are amending the Act on the Supreme Court. The idea is to lower the qualifications required from future judges as well as lower the number of judges required for electing a new First President. The obvious aim is make it easier to pick judges whom are loyal to the government and let them elect somebody in place of Judge Gersdorf.

This article is published in association with Visegrad Insight.

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