Senate rejects disciplining judges, but reform to continue

The second chamber of Poland’s Parliament votes against the ruling party’s legislative proposal. But the measure is likely to be approved in the Lower House.

The Senate, the second chamber of the Polish Parliament voted by 51 to 48 to reject the ruling Law and Justice (PiS) bill which stiffens the disciplinary regime for the country’s judges. The legislative proposal has been the subject of criticism by the European Commission as well as the Council of Europe’s advisory body the Venice Commission.

The opposition parties have a narrow majority in the Polish Senate over the ruling party. However, in the Lower House, which takes the final decision on all legislation and which elects governments PiS has an overall majority with 235 out of 460 seats.

Return to sender

The legislation returns to the Lower House where it is likely to be approved, despite the Senate’s rejection. To overturn a Senate decision the Lower House must vote a measure through by an absolute majority (231 out of 460 seats).

If the legislation is approved by the Lower House it will then be up to the President to decide whether to sign it. Should he veto it the Lower House could overturn that veto but only by securing 276 out of 460 (60 percent of the membership of the chamber. Alternatively he could delay the implementation of the legislation by referring it to the constitutional court to rule on whether it is in line with the constitution.

President Andrzej Duda is unlikely to veto the legislation or to refer it to the constitutional court. He has gone on record arguing that tighter disciplinary measures are required to avoid anarchy in the courts. Anarchy that could be brought about should some judges and courts undermine the right of others to adjudicate.

The rule of law dispute

The ruling PiS have been engaged in sweeping reforms of the judicial system. They have gradually changed the membership of the constitutional court which makes final rulings about the constitutionality of individual laws.

But Parliament was always involved in electing constitutional court judges. The real novelty which the ruling party has introduced is to change the way the National Judicial Council (KRS) is elected. The KRS, which is responsible for internal issues affecting the legal profession and for recommending individuals for senior positions, used to be elected largely by senior judges.

Since the constitution did not specify how members of the KRS should be elected, only that they should be judges, PiS decided to make the body elected by Parliament. This has been contested domestically by the opposition, wide sections of the judicial community and by the European commission. They argue that it places the judiciary under government control.

President and Senate Speaker meet to discuss judiciary reform

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The government’s case

The ruling party argue that in established western democracies legislatures and executive branches have often an even greater say in senior judicial appointments and the EC does not question that. It also argues that it needs to reform the judiciary to speed up proceedings in court cases and to weed out corruption and cronyism from within the profession’s ranks.

It also wants to end the lack of accountability of the judiciary, arguing that the principle of checks and balances requires some cross-accountability to the legislative or legal branches of government.

It has also argued that judges who adjudicated in the times of communist martial law and ruled against the democratic opposition should no longer serve in the courts. In order to eject such judges from the Supreme Court, the highest common court in the land, it wanted to lower the retirement age for judges. This was stopped by an ECJ ruling.

Injudicious wrangling

But membership of the Supreme Court has been changed as a result of some judges retiring anyway and because of the introduction of a special disciplinary chamber in the court. The President has selected the judges who sit in that chamber of the Supreme Court and the candidates for nomination were selected, in line with the legislation, by the KRS. The older members of the Supreme Court question whether the KRS is a legitimate body in the light of the new way it is elected. They have sought to challenge the legislation in the ECJ by asking whether the way the Disciplinary Chamber has been selected does not violate the principle of the independence of the judiciary.

The ECJ would not rule on that, but asked the Supreme Court to itself make its mind up on whether the judges who sit in the Disciplinary Chamber and the KRS still constitute an independent judiciary. The Labour Chamber of the Supreme Court when discussing the dispute then ruled that they did not.

The Ministry of Justice and the ruling party reacted strongly to that and produced a legislative draft that tightened disciplinary procedures against judges who questioned the validity of legal appointments. That legislation has now been challenged by the EC who have asked the ECJ to suspend the working of the Disciplinary Chamber of the Polish Supreme Court.

Venice Commission recommends rejecting draft concerning judiciary

The Venice Commission, an advisory body of the Council of Europe, issued an opinion recommending rejecting the draft legislation concerning further...

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Gridlock beckons

If the ECJ upholds the EC’s objections to the disciplinary legislation and suspends the Disciplinary Chamber of the Supreme Court this will affect the election of the new Chief Justice of the Supreme Court.

The current chief justice Małgorzata Gersdorf, a fierce critic of the judicial reforms, will soon be leaving the post as her term of office expires. The President will nominate the candidate for her successor, from the members of the Supreme Court and that candidate must then receive approval of the Supreme Court. If the members of the Disciplinary Chamber are suspended they would not be able to vote and therefore the President may find it difficult to secure a majority for his preferred choice.

But more important is the gridlock within the Polish legal system that could ensue. If judicial nominations of the KRS are questioned then the judgements made by those bodies and courts will also be under question.

There is also concern among the public about partisanship in the judiciary making future adjudication less credible. Judges who are currently protesting and opposing the government may in future have to adjudicate matters affecting that government. And likewise, judges who are selected through the new nomination process will be portrayed as lacking objectivity in cases concerning opponents of the government.

Partisanship and internationalisation of the conflict

Poland is paying the price for having failed to engage in deep judicial reforms in the nineties and noughties. Much faith was put in the legal profession’s autonomy being the answer to all the problems that emerged.

But the problem now is that the radically partisan political divide between the ruling conservatives and the opposition liberals, centrists and leftists is so great that compromise seems to be impossible. That opposition, rather than attempt to unite the public behind its own proposals has chosen to simply protest the government’s measures and to ask for intervention from the European Commission and the European courts.

That intervention now is of course seen as the EC treating a major Central European state in a manner different to the way it treats its older members. It is also now widely seen as evidence of a growing trend for EU institutions to attempt to influence the internal affairs of member states far beyond what was and is envisaged in EU treaties.

The part of the Lisbon Treaty on the values of the EU is general and vague. Rule of law is not defined in that treaty. Moreover, the EC has no criteria for assessing the state of rural law in individual states nor a monitoring mechanism for assessing the state of observance of the rule of law in member states.

Radek Sikoski, a former foreign affairs minister in the previous liberal government headed by Donald Tusk, said not so long ago that it is a matter of concern that in some areas of public policy the states in the United States of America have more autonomy than do the member states of the European union. He was not referring to the judiciary, as EU treaties are specific that the organisation of judicial systems is a matter for member states. But the latest controversy indicates that the EU’s executive (EC) and judicial (ECJ) branches are willing to move in a direction that will often be highly unpalatable to member states.