After Poland’s president Andrzej Duda signed another judicial reform bill, turning into law the controversial legislation giving the ruling right wing party more control over the judiciary, thousands of protesters – holding candles, waving the Polish national flag and singing the national anthem – demonstrated outside the presidential Palace in Warsaw on July 27. Thousands of others took to the streets in 20 Polish cities and towns in protest. In Warsaw, minor clashes broke out between protesters and the police who used pepper spray.
This new law, conferring on the government the power to appoint the next supreme court chief, was passed by the upper house early last week. Earlier, the term of the first president of the supreme court, Małgorzata Gersdorf, along with that of 21 other judges, (amounting to about a third of the court’s strength), was retroactively cut short on July 3 by bringing down the retirement age of the judges from 70 to 65. Gersdorf’s six-year term was supposed to conclude in 2020.
The judges of the supreme court had unanimously passed a resolution that forcing so many of them to relinquish their jobs was “in breach of the constitution”. The government, however, did not relent. Calling this retroactive legislation illegal, Gersdorf, speaking at an event in Warsaw University, said, the government, under the control of the right wing Law and Justice Party (PiS), was carrying out “a purge under the guise of a retrospective change of the retirement age.”
On July 2, the European Commission – which has already been on a collision course with the Polish government over its systematic attack on the judiciary since coming to power – announced that an infringement procedure had been launched against the Polish government, which was served a formal notice to which Warsaw is expected to reply in a month.
“The Commission is of the opinion that these measures undermine the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to fulfill its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union,” a press release from the commission stated.
While a provision was made available for judges whose terms are thus cut short to apply for an extension of their service – an option that 16 of the 22 judges have chosen – the commission pointed out that this provision did not address the concerns because there was no criteria established, based on which the president is supposed to decide on whether or not to approve such applications. Further, once the decision is made, there is no possibility of challenging it by initiating a judicial review.
Announcing on July 3 that she “did not consider it proper to appeal to the president,” Gersdorf said, “With full respect to the head of state, it would be wrong because it would mean subordination.”
Instead, claiming that she continued to be the supreme court chief as per the constitution which grants her a six-year term, Gersdorf went to work on the following day, where hundreds of supporters who had gathered outside the court – chanting “We are with you”, “constitution” and singing the national anthem, cheered her arrival. Addressing reporters on the spot, she said, “My presence here is not about politics, I am here to protect the rule of law.”
However, she was replaced by another acting judge who was appointed by the president, who is closely allied with the ruling PiS. Being an outspoken critic of government’s attempts to control the judiciary over the last year, Gersdorf’s relationship with the government has been tense.
A systematic assault on judicial independence
Since coming into power with a majority in both the houses of parliament, the PiS has pushed through a series of reforms systematically undermining the independence of the country’s judiciary.
Barely two months into power, in December 2015, an amendment conferring on the PiS-dominated parliament the authority to appoint five of the 15 judges to the constitutional tribunal was passed by the parliament. It is this body which has the final authority to determine whether or not the laws passed in the country are in compliance with the constitution.
The legislation also imposed other requirements on the tribunal. While previously, the rulings by the body could be passed with a simple majority as long as five judges were present (or in certain cases, nine judges), the new legislation required 13 of the 15 judges to be present and rulings to be passed with a two-thirds majority instead of a simple majority.
This amendment triggered protests and came under criticism by the country’s supreme court, human rights groups, including Amnesty International, and the Parliamentary Assembly of the Council of Europe.
When the head of the constitutional tribunal refused to acknowledge these appointments made by the parliament, which he regarded illegal, the president signed the legislation, forcing the head of the court to accept the chosen five, who were sworn in by the president.
The following month, in January 2016, the European commission launched an inquiry under its Rule of Law framework to determine if Poland was in breach of the democratic standards set out in various EU agreements, which all member states are bound by. This marked the first such inquiry launched by Brussels against a member state. Also raised in the inquiry were concerns about the Polish government’s crackdown on media freedom.
After months of dialogue between Polish government and the European commission, in July 2016, the body announced that “the Commission considers the main issues which threaten the rule of law in Poland have not been resolved. We are therefore now making concrete recommendations to the Polish authorities on how to address the concerns so that the Constitutional Tribunal of Poland can carry out its mandate to deliver effective constitutional review.”
Over the next two years, tensions between Brussels and Warsaw increased even as the government further tightened its control over the judiciary.
After the term of the president of the constitutional tribunal expired at the end of 2016, the Polish president appointed to that position Julia Przylebska, a judge nominated by the party.
Further tightening the ruling party’s grip over the judiciary, in March that year, the justice minister in the cabinet was given an unprecedented supervision over all the prosecutors, after the functions of the prosecutor-general was merged with that of the former. The following year, in mid-2017, president Duda also signed another legislation increasing the power of the justice minister further by empowering him “to hire and fire the heads of courts of general jurisdiction”, Reuters reported.
It was after this move that the European Commission, noting that the “systemic threat to the rule of law in Poland already identified in” the January 2016 inquiry had been further amplified by other reforms, launched an “infringement proceeding”.
Two other legislations were passed by the parliament that year, one of which, if signed into a law by the president, would have allowed the government to replace all the judges in the supreme court with other judges chosen by the PiS government.
The second legislation had to do with the power to appoint members to the national judiciary council, which is the body that selects the candidates for the post of judges. While previously, it was a panel of judges who chose 15 of the 25 members of the council, the legislation, if signed into law, would have transferred this power to the parliament, which could appoint members with a simple majority vote.
After fierce protests that brought tens of thousands to the streets, the president vetoed both these legislations. However, in December 2017, watered down versions of the two legislations, effectively achieving the same objectives, were signed by the president.
The lowering of the retirement age, and the fact the the president has to approve the extensions of those judges who seek it, means that the government will find it easier to influence the decision on which of the judges should stay on.
Similarly, the revised law regarding the appointment of members to the national judiciary council now allows – as proposed in the earlier version – parliament instead of a panel of judges to appoint 15 members to the council. The only difference is that parliament will now need a 60% majority rather than a simple majority in order to make those appointments.
In the parliamentary session in which the legislation was passed, none of the MPs from the ruling party spoke, ostensibly in order to not “provoke” the opponents. After Citizens of the Republic of Poland – a pro-democracy and anti-fascist civic movement – gave a call, hundreds of protesters converged upon the parliament, chanting “Freedom, Equality and democracy”, waving the Polish flags and singing its national anthem.
“Over a period of two years, the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary. The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch,” the European commission said, issuing the 4th Rule of Law Recommendation.
The commission urged the government to “not apply a lowered retirement age to current judges, remove the discretionary power of the president to prolong the mandate of supreme court judges..” Further, with regard to the national council for the judiciary, the commission urged the Polish government “to not terminate the mandate of judges-members, and ensure that the new appointment regime continues to guarantee the election of judges-members by their peers.”
However, in March this year, the law transferring the power to appoint members to this body came into effect, and the law lowering the retirement age of judges came into effect on July 3.
The EU, whose austerity policies have brought many a European country to crisis, remains unpopular in Poland. The ruling PiS, which has shown its willingness to defy this austerity with a slew of welfare measures and has promised to crack down on financial speculation, continues to remain popular, allowing it to consolidate its power over the judiciary despite protests within the country and threats from the EU.