Heads of Supreme Court and Constitutional Tribunal criticise new Polish government’s reforms

Judicial reforms being proposed by Poland’s new justice minister, aimed at rolling back rule-of-law violations by the former Law and Justice (PiS) government, themselves threaten the rule of law and violate the constitution, claim senior judges appointed under PiS.

“The new justice minister is beginning his term by submitting draft acts which, under the pretext of respecting international obligations, aim to violate the foundations of the constitutional order of Poland,” wrote the president of the Supreme Court, Małgorzata Manowska.

Meanwhile, the head of the Constitutional Tribunal and one of its judges – both associated with PiS – have also criticised the actions of justice minister Adam Bodnar.

Minister @Adbodnar przekazał do uzgodnień międzyresortowych projekt zmian w rozporządzeniu Ministra Sprawiedliwości z 18 czerwca 2019 r. – Regulamin urzędowania sądów powszechnych. https://t.co/GCyl2t1pOa

— Min. Sprawiedliwości (@MS_GOV_PL) December 15, 2023

Their concerns relate in particular to proposals by Bodnar, presented in draft form on Friday, regarding judges appointed after PiS overhauled the National Council of the Judiciary (KRS) – the body constitutionally tasked with nominating judges – in 2017.

A number of Polish and European court rulings have found that that overhaul, which increased politicians’ influence over the KRS, rendered it illegitimate. That has in turn cast doubt on judges subsequently appointed by it – among whom is Manowska.

On Friday, the justice ministry noted that PiS’s reform of the KRS was “contrary to the constitution” and resulted in the body “losing its independence”. Therefore, “the procedure for appointing and promoting judges…has become defective”.

The body responsible for nominating judges in Poland no longer matches the institution enshrined in the constitution due to changes made by the government, which increased political influence over the body, the Supreme Court has found https://t.co/yPNMG4u8st

— Notes from Poland 🇵🇱 (@notesfrompoland) June 2, 2022

Bodnar has proposed that, in cases where there is an application for a judge to be excluded from a case due to him or her being appointed by the overhauled KRS, other judges appointed in the same manner would not be allowed to adjudicate on such applications.

Speaking to the Polish Press Agency (PAP) on Saturday, Bodnar said that his proposal was simply a “symbolic change” because it “results from the applicable [European] law anyway”. By implementing it, “we aim to show that we take [European] rulings seriously and don’t ignore them”.

“This government, unlike the previous one, is encouraging judges to apply EU law, not punishing them for it,” he added.

Mój komentarz dla @PAPinformacje
„To i tak wynika z obowiązującego prawa, więc jest to zmiana symboliczna. Ma ona na celu pokazanie, że traktujemy poważnie orzeczenia TSUE i ETPC, a nie ignorujemy ich”. https://t.co/hUV5qnK66Z

— Adam Bodnar (@Adbodnar) December 16, 2023

Bodnar’s proposals were, however, met with strong opposition from both PiS, which, after leaving power last week, is now the main opposition party, as well as the judges appointed under and in some cases associated with the former government.

On Sunday, Manowska – who has headed the Supreme Court since 2020 – issued a statement saying that seeking to “exclude a significant category of judges from the assignment of cases” would violate the Constitution.

She also labelled Bodnar’s proposals “a drastic interference in the sphere of judicial independence”, claiming that “even the communist regime” which ruled Poland until 1989 did not go so far.

Przywracanie praworządności. Minister sprawiedliwości chce zmian dotyczących neo-sędziów. Bulwersujące słowa neosędzi Manowskiej o Adamie Bodnarze: „do tej pory władza wykonawcza nie śmiała się poważyć nawet w okresie PRL” https://t.co/PQ6WvX9ggh

— Bertold Kittel (@Bertold_K) December 18, 2023

Another Supreme Court judge, Kamil Zaradkiewicz, who was also nominated by the reformed KRS, issued an open letter in which he likened the situation to the martial law introduced by the communists in Poland in 1981 and demanded that Bodnar resign.

Meanwhile, in an interview with conservative weekly Gazeta Polska, Julia Przyłębska, the president of the constitutional court and a close associate of PiS chairman Jarosław Kaczyński, claimed that “an atmosphere is being created in which judges are afraid to rule…This is a violation of all standards of the rule of law”.

One of the judges on her court, former PiS MP Krystyna Pawłowicz, called in a post on social media for Bodnar “to ABANDON his plans to VIOLATE the Polish CONSTITUTION”. In another post, she accused him of “applying illegal pressure on the independence of judges”.

‼️WZYWAM nowego min.sprawiedl. @Adbodnar Adama
BODNARA do ODSTĄPIENIA od planów ZŁAMANIA polskiej
KONSTYTUCJI
Łamie pan swą niedawno złożoną PRZYSIĘGĘ”dochowania
WIERNOŚCI postanowieniom Konstytucji i innym prawom RP”
Konstytucję wykonują USTAWY Sejmu,a nie akty administracji pic.twitter.com/iHVTGfIsgy

— Krystyna Pawłowicz (@KrystPawlowicz) December 17, 2023

A lawyer who during the PiS government was a prominent campaigner for restoring the rule of law said that such reactions from PiS-appointed judges are no surprise.

“We expected criticism of the actions of the new minister, including those regarding the neo-judges,” Sylwia Gregorczyk-Abram told broadcaster TOK FM. “But we have a series of rulings that show where the truth is and who is substantively right…It is crucial that this is now explained to citizens.”

The Supreme Court itself has found the KRS to no longer be a constitutional body following PiS’s reforms while a number of rulings by the European Court of Human Rights have also found the KRS to be unlawful.

Poland has become the first ever country to be expelled from the European Network of Councils for the Judiciary.

The politicisation of Poland’s council „blatantly violates judicial independence” and „undermines the application of EU law”, found the ENCJ https://t.co/NFf2NJR0rV

— Notes from Poland 🇵🇱 (@notesfrompoland) October 29, 2021

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Main image credit: tomislav medak/Flickr (under CC BY 2.0)

Agata Pyka is an assistant editor at Notes from Poland. She is a journalist and a political communication student at the University of Amsterdam. She specialises in Polish and European politics as well as investigative journalism and has previously written for Euractiv and The European Correspondent.