Analysis: Supreme Court questions legitimacy of reformed judicial bodies

A ruling by Poland’s Supreme Court (SN) challenging the legitimacy of the Disciplinary Chamber of the SN as a judicial body and deeming the National Council of the Judiciary as not being independent, opens up a new chapter in the battle over judicial reform.

The ruling issued by the Supreme Court’s Labour Law chamber, comes in response to the decision taken by the Court of Justice of the European Union (CJEU). The decision asked the Supreme Court to assess whether two institutions which have recently been reformed: the National Council of the Judiciary (KRS), which is responsible for nominating judges, and the Supreme Court’s disciplinary chamber, remain independent of the government.

The Supreme Court’s Labour Law Chamber stated on Thursday that “the KRS is not an impartial and independent body” and that the disciplinary chamber is” not a court within the meaning of EU and national law”. Announcing the decision it justified its decision on the recent “CJEU ruling that sets out a clear and precise standard for assessing the independence and impartiality of a court”, and that “every court in Poland is obliged to examine whether that standard is ensured”.

The reasoning indicates that the present KRS is no longer independent of the legislative and executive branches. The judges making the ruling also felt that the KRS has selected members of the disciplinary chamber who “are strongly associated with the legislative or executive”.

Conflict between courts

The Supreme Court has based its ruling on the CJEU’s answer to a prejudicial question. The CJEU evaded giving an answer and put the ball firmly in Poland’s Supreme Court. The problem is that according to the Polish constitution, it is the Constitutional Court which is meant to decide on whether a piece of legislation is constitutional and it is only that court that may declare that a law is null and void on those grounds.

The Supreme Court’s ruling cannot be interpreted as anything other than an encroachment on the power of the constitutional court. It will argue that this was necessary according to Poland’s obligations towards EU law. But at the end of the day European courts cannot change Poland’s constitution that gives legislators, the executive and the judiciary the remit on their power.

Polish judicial reform

Judicial reform in Poland since 2015 has been sweeping. It has affected the constitutional court (TK), the Supreme Court (SN), the National Judicial Council (KRS), the common courts and the public prosecutors.

Constitutional Tribunal

The ruling party began its campaign for judicial reform with a controversial move on the Constitutional Tribunal, a constitutional court for assessing the constitutionality of legislation. The outgoing government, led by the liberal Civic Platform (PO) caused the crisis by appointing 5 judges to the Tribunal (instead of 3) in its last month in office. The ruling party responded by rejecting all of the PO appointments and making five of their own.

The government subsequently refused to publish constitutional court rulings against these appointments, as well as introducing legislation to force the court to consider cases in chronological order, rather than on a discretionary basis. The composition of the court has changed over the years, as new appointments were made by the current majority.

National Judicial Council (KRS)

The KRS is the constitutional body responsible for nominating judges and regulatory matters regarding the legal profession. Before the reform introduced by the present government, 15 of its 25 members were elected by other judges. Today all are elected by Parliament. The remaining members are also appointed by the executive or legislative branches.

It has been argued that the reform of the KRS was dubious because it removed judges right to appoint their own representatives. But the way the KRS is appointed, has in the Polish constitution been left to a decision by the legislature. The constitution does not specify the method of selection of those representatives.

The Supreme Court

The government’s Act on the Supreme Court, which was later successfully challenged in the European courts lowered the retirement age for judges, thereby removing 27 out of 73 members. The Act also ended the term of the Chief Justice of the Supreme Court Małgorzata Gersdorf. This was also questioned on constitutional grounds, though that hinged on whether the provision to retire judges in the case of reorganization of the judicial system was more important than the constitutionally mandated six-year tenure of the Chief Justice.

The new Act expanded the Supreme Court to 120 judges, adding two powerful new chambers: the Chamber of Public Affairs and the Disciplinary Chamber. The disciplinary chamber of the Supreme Court has been filled by members nominated by the new KRS. It was set up to perform the function of disciplining judges for breaches of law and poor performance.

Reform of the common courts

Legislation has increased the power of the Justice Minister over the common courts. It allowed the minister to replace the heads of individual common courts. In reality 69 out of 377 were dismissed. Other appointments to replace presidents whose terms had elapsed brought the overall tally of new appointments to approximately 30 percent of all court presidents.

The legislation has also brought in a random selection of judges to court cases. This has reduced the power of the presidents of the common courts, though they have had their ability to change judges on cases enhanced in other ways.

Bringing public prosecutors office under the control of the Ministry of Justice

In 2016, the PiS government merged the offices of the Prosecutor General and the Minister of Justice, which the previous government had separated back in 2009. This happened as a result of criticism of the performance of the prosecutors service under Parliamentary supervision. Even PO justice ministers complained about the Ministry’s impotence in dealing with critical judicial matters that the separation had brought.

The politics of reform

Since winning power in October 2015, the Law and Justice (PiS) government has introduced wholesale changes to the judicial system in Poland. The changes have been contested in Poland as well as internationally by the European Commission and the Venice Commission for allegedly undermining the rule of law and flouting the Constitution.

There have been unfavourable rulings by European courts against the reform. One such verdict forced the ruling majority in Poland to retract changes made in the Supreme Court made by the introduction of earlier retirement for judges. Polish diplomats have admitted that the rule of law dispute has caused problems for Poland’s position and standing in the EU.

The government has argued that it has a democratic mandate to deliver reform of the judiciary. It has pointed to the fact that the Supreme Court includes judges who were members of the communist party and who adjudicated during Martial Law in the 1980s. They have also argued that the system has been slow in resolving cases and that there have been instances of corruption and malpractice by judges.

The face of the judicial reform has been the Justice Minister Zbigniew Ziobro. He served as Justice Minister between 2005 and 2007 and again from 2015 to present. An ambitious politician who left PiS to form his own party but returned to the fold. He is a fighter by nature who has fought to toughen up the penal system and to combat corruption. Only a politician of such standing could have attempted such a difficult and controversial reform.

Protests against the changes have been vocal but have not proved massive. The majority of Poles believe that the judicial system is in need of an overhaul. This does not however imply consensus on what that reform should entail. The parliamentary opposition and much of the legal profession have actively opposed the reforms, arguing that they are an attempt by the government to create a pliant judiciary.

However, in reality there is no evidence that the courts are producing decisions favourable to the government. This certainly was not the case with regard to the elections when all the objections to the Senate elections from the ruling party were dismissed by the Supreme Court. But there is some unease that disciplinary procedures might be being used against judges with whom the ruling party has had political conflict.

But political protests by some judges are making other judges uneasy. Barbara Piwnik, former Justice Minister and senior judge has argued strongly that judges should not engage in political activity. She feels that instead they should protect their independence by the rigour with which they work and produce their judgments. How can they retain impartiality if they engage in protests against people they may soon have to judge?

But there is some unease about the pace and direction of the reform, even among commentators who are sympathetic to the government. They point to the fact that the tools for taking charge of the court system could be used by unscrupulous governments in the future. Governments who may have far more friends among the judicial profession than is the case with the present administration.

Judicial reform in Poland is still ongoing. It is too early to tell if it will lead to cases being dealt with more speedily and corruption and incompetence being weeded out. That is the big test before it. When all is said and done, the general public do not care much about whether Justice X or Justice Y are in charge of which court. What matters is the quality and impartiality of their judgements. Impartiality is as important as independence. And independence means not only independence from government, but also from pier, financial and corporate pressure too.