The Polish parliament on July 20 passed a hugely controversial law that effectively places the supreme court under the control of the ruling Law and Justice (PiS) party, removing checks and balances usually expected of a modern democracy.
The passing of the legislation amounts to the final piece in the jigsaw for PiS in imposing political mastery over the judiciary, despite the growing protestations of the European Commission that the move is plainly contrary to European law. PiS claims it had to reform control over the judiciary because it was operating as a closed corporatist caste with roots in the communist system that ended in Poland 28 years ago. But critics charge that the way the changes have been framed is ostensibly unconstitutional.
In passing laws that observers say subjugates the Supreme Court and the judicial branch to the whims of politicians, Poland's government ignored a fresh warning from Brussels. The Commission has been probing Warsaw’s adherence to the rule of law principle, as enshrined in the EU treaties, since early 2016. It moved to do so after PiS engineered a friendly lineup of another top court, the Constitutional Tribunal.
After the passing of the bill, protests in Warsaw – in front of the parliament building and the president’s seat – were getting under way amidst a heavy police presence. Rallies had also been planned for dozens of cities and towns across the country.
The contested bill’s main provision gives the government power to end the terms of all the current supreme court judges. The president will handpick the new composition of the court, although his decision will require a sign-off from the justice minister.
The current judges could theoretically be reinstated in the revamped court, but there is little likelihood PiS will proceed in that fashion. The incumbent supreme court judges have often been critical of the rule of the rightwing populist and national-conservative PiS.
The passing of the supreme court bill – as well as other legislation that will allow for reforms to the judiciary that are to the party’s liking – is bound to elicit further tough responses from Brussels.
Tusk speaks out
“Putting the courts under the control of the ruling party in the way PiS has proposed will ruin the already dented reputation of Polish democracy,” President of the European Council and former Polish prime minister Donald Tusk said in a statement. Tusk appealed for dialogue to find a way out of the situation that threatens the “marginalisation of Poland in Europe”.
“Recent measures taken by the Polish authorities on the judicial system greatly amplify the threat to the rule of law in Poland,” the European Commission First Vice-President Frans Timmermans tweeted on July 19 as the bill on Supreme Court was still being worked on in the parliament.
Timmermans added that “given the latest developments, we are getting very close to triggering Article 7 of the Treaty on the European Union”. Article 7 was devised to sanction EU member states in the event that they commit a violation of the fundamental principles of the bloc, such as in relation to the rule of law or protection of human rights. It has never been used.
Poland is, however, unlikely to become the first member state to experience the activation of Article 7 – which suspends a member state’s voting rights in the bloc – because unanimity is required to set it in motion. Hungary, which itself has been at odds with Brussels over the policies of the populist government of Viktor Orban, is, for instance, deemed likely to block the use of the article against Warsaw.
PiS plans to send the legislation passed by parliament to the senate this week and then to the president. Earlier hopes that President Andrzej Duda would intervene with a veto appear to be fading.
Duda said on July 18 he would not sign off on the supreme court bill unless changes were introduced to another important bill, with which PiS is seeking to rein in the National Council of the Judiciary (KRS), a key institution of the Polish judiciary system with broad powers in appointing judges. PiS accommodated the president’s changes in its KRS bill.
There is concern that, upon seizing control of the supreme court, PiS will next try to push through a constitutionally controversial election law and have an obedient supreme court rubber-stamp a vote cementing the party's rule.
PiS’s plans have had a galvanising effect on the atomised opposition, with the main parties now calling for a “united front” against PiS, focused on finding a way to block the judicial reforms.