President Andrzej Duda has proposed changes to the functioning of the Supreme Court. The move would allow judges appointed under the rule of the Law and Justice (PiS) party – which is now likely to leave government following last month’s elections – to adopt resolutions independently.
That could include passing resolutions that effectively recognise their own legitimacy, which is rejected by judges nominated to the court before PiS overhauled the judiciary. Those judges have expressed opposition to Duda’s plans.
Duda sent a draft amendment to the regulations to the Supreme Court on Monday, 6 November, without providing justification for the proposed changes.
The most significant of them is a proposal to change the size of the quorum needed for the Supreme Court and its individual chambers to adopt resolutions. Currently, two thirds of judges must be present, but Duda wants to reduce that figure to one half.
Judges appointed under PiS hold just over half of seats on the court, notes Włodzimierz Wróbel, a Supreme Court judge appointed before PiS’s reforms.
Like other so-called “old” judges, Wróbel regards the “new” judges appointed under PiS as illegitimate because they were nominated by a body, the National Council of the Judiciary (KRS), that was reformed by PiS in a manner that has been found by various domestic and European court rulings to render it unlawful.
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
That has resulted in the “old” judges refusing to work with their “new” counterparts. However, Duda’s proposed changes would allow the “new” judges to adopt resolutions without the presence of the “old” ones.
That could include overturning or amending a January 2020 resolution of the full Supreme Court that rejected the legitimacy of the KRS. By doing so, the new judges would effectively be confirming that they should be considered legitimate members of the Supreme Court.
“The manipulation of the rules of procedure of the Supreme Court by politicians has been the order of the day in recent years”, Wróbel commented in a Facebook post. “Now, despite what happened on 15 October [PiS losing its parliamentary majority at elections], another attempt is being made to do the same.”
Thirty judges on Poland’s Supreme Court – almost a third of those working at the institution – have declared they will not adjudicate alongside colleagues appointed after the government’s judicial overhaul, which they say rendered such nominations invalid https://t.co/jsFW62gWih
— Notes from Poland 🇵🇱 (@notesfrompoland) October 17, 2022
Under Polish law, the College of the Supreme Court must give its opinion on proposals to amend the court’s procedures. That is why the president of the court, Małgorzata Manowska (one of the “new” judges), convened a meeting for the day after the submission of the draft amendments by the president.
However, “old” judges refused to attend the meeting, meaning the necessary two thirds quorum was not met. They said they were not given sufficient notice and had not received necessary materials to form an opinion as there was no justification in the president’s proposals to explain the need for the sudden changes.
Subsequently, the court’s spokesman, Aleksander Stępkowski (another “new” judge), told news outlet OKO.press that, under existing regulations, if the College of the Supreme Court does not issue an opinion it is considered to be “tacit consent”, i.e. a favourable opinion.
However, one of the “old” judges, Jarosław Matras, rejected that interpretation. “There are no tricks to bypass the college’s opinion,” he told OKO.press. “If someone thinks otherwise then they are in breach of the law. If there is no opinion then the draft regulation cannot be proceeded with.”
Legalni sędziowie SN zatrzymali ekspresową zmianę przepisów przez prezydenta Dudę. Miała ona utrudnić nowemu rządowi przywrócenie praworządności @M_Jaloszewskihttps://t.co/o5CuVSLaGj
— OKO.press (@oko_press) November 7, 2023
If the college’s stance is to be understood as tacit consent for the president’s proposal, it will now land on the desk of PiS Prime Minister Mateusz Morawiecki. If he signs it, the changes come into effect.
Earlier this week, Duda announced that he was nominating Morawiecki to continue as prime minister once the newly elected parliament meets for the first time on Monday. That means Morawiecki will have the first shot at forming a new, PiS-led government. However, all other parties have ruled out working with PiS.
During its eight years in power, PiS has radically overhauled Poland’s judiciary, arguing that the changes were necessary to remove “post-communists” from the courts and to improve their functioning.
However, a wide range of Polish and international experts and organisations – as well as a majority of the public, according to polls – regard the reforms as an attempt to increase political control over the judiciary.
Less than 9% of Poles believe the country’s courts function better now than they did before the current government began its overhaul of the judiciary in 2015.
Almost 53% think they have got worse, a new poll has found https://t.co/QiXKOfT5Na
— Notes from Poland 🇵🇱 (@notesfrompoland) January 23, 2023
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Main image credit: Penn State University Libraries/Flickr (under CC BY-NC 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.