Ever since winning the general election of Poland in 2015, the Polish government led by the Law and Justice Party (PiS), has continuously pushed the country to adopt a series of judicial reforms supposedly to drive out the last strands of communism from the judicial set-up. These reforms, however, have been highly controversial in that they smack of an intention to establish an authoritarian regime by undermining the independence of the judiciary and has consequently attracted scathing criticism from various quarters. Poland, which is also an integral member of the European Union, has been confronted time and again by the European Court of Justice (ECJ) for its questionable approach towards the judiciary and upholding the intrinsic values of rule of law. Latest of which came on 8th April, when the ECJ stayed the functioning of a chamber designed to scrutinize and punish the judges of the Polish Supreme Court, deepening the legal tussle between the two bodies. This article intends to highlight what are these reforms, how are these reforms antithetical to the idea of separation of power, the legal conflicts within Poland, and its ramifications on the stage of EU.
Brief Analysis of The Past Developments
It is worthwhile to first comprehend the functions and purpose of various constitutional bodies along with the legislation passed in the past few years which have subverted the independence of the judiciary in the nation to a large extent. Poland broadly rests on three major pillars to uphold the rule of law in the country, namely, the Constitutional Tribunal (CT), the Supreme Court (SC), and the National Judicial Council or the Krajowa Rada Sądownictwa (KRS) in Polish. The Constitution of Poland authorizes these bodies to work in tandem, delineating the proper framework of their jurisdiction. The KRS is a council of 25 members entrusted with the responsibility of appointing judges to the courts of the country in a fair manner. Out of the 25, 15 members must be chosen from the judges of the Supreme Court, common courts, administrative courts, and military courts. Article 183 of the Constitution empowers the Supreme Court as a body supervising the common and the military courts. It is also given the task of maintaining uniformity in legal principles to ensure social justice. Finally, the Constitutional Tribunal has been assigned to perform majorly two functions, firstly, to settle disputes between two constitutional bodies and secondly to adjudicate on the conformity of legal provisions issued by central State organs to the Constitution and ratified international agreements and statutes.
The capturing of these constitutional institutions in Poland commenced four years ago when Julia Przyłębska, an ally of the Justice Party, was appointed the President of the CT by Poland’s president. Her appointment was further deemed as unconstitutional as the requisites to be fulfilled for the selection of the President were missing. In 2017, the Government brought a law lowering the retirement age of Supreme Court judges from 70 to 65 and applied it in retrospective effect, consequently retiring one-third of the judges of the court. This statute, however, was quashed by the ECJ in June 2019 which compelled the government to revoke the law. This degrading chain of events was enough for the European Commission to initiate proceedings against Poland under Article 7 of the Treaty of European Union, something which was unprecedented in itself. The Government remained unfazed and continued its aggressive attack on the judiciary by bringing yet another law in 2018 which allowed the Sejm to now “elect” the 15 judge members of the KRS. This was a major deviation from the earlier practiced norm wherein the judges had the liberty to choose these members on their own motion, upholding the value of separation of power inscribed in the Constitution. By giving the power to the executive to pick and choose judges of its own choice to the KRS who would then appoint judges of the Supreme Court, the Parliament deliberately ignored the inviolability of the elementary values of the Constitution. It can be gleaned from a plain reading of Article 187 that although it does not prescribe a method for the selection of these judges, item 3 of the article outlines the method of choosing other members in the following manner: “Out of the 25, 4 members must be chosen by the Sejm from amongst its Deputies and 2 members chosen by the Senate from amongst its Senators.”
Therefore, it is amply clear that if the drafters of the Constitution envisioned for the selection of judges through the Sejm, they would have provided a provision for the same exclusively. Hence, ironically, independence of the judiciary in Poland, now, finds itself captive of the KRS which was entrusted to safeguard it in the first place. The Polish Government delivered the final blow by passing the “Muzzle Law” in December 2019 which provided for the setting up of a Disciplinary Chamber which was aimed at disciplining and sanctioning judges who questioned the government’s reforms. It further also set up an Extraordinary Review and Public Affairs Chamber which would hear extraordinary appeals including those concerning the disqualification of judges and would also get the unbridled power to set aside the resolution of other chambers of the Supreme Court. The establishment of these courts was also against the Constitution as item 2 of article 175 allows the establishment of extraordinary courts only in the times of war.
Constitutional Tribunal v. Supreme Court
The ECJ on 19th December 2019 ruled that it was for the National Court of the member state to determine the independence of the two newly constituted chambers of the Supreme Court. In this respect, the European Court of Human Rights in Gudmundur Andri Ástráðsson v. Iceland has already stressed the principle of “look behind appearances” to ascertain whether the judiciary in true sense is free from any external pressure from the other branches of the state.
Following the orders and precedents of the European Courts, the combined chambers of the Supreme Court then passed a resolution in January declaring that the new chambers could not be called “independent and impartial courts” and the method of appointing judges to the SC was unconstitutional. Things came to a head in April, when the Constitutional Tribunal overruled the resolution of the Supreme Court, claiming that the SC did not have the jurisdiction to rule on the procedure of the appointment of judges. At this juncture two important questions arise: (1) whether the CT had the authority to adjudicate on a resolution adopted by SC; and whether it was legally correct in overruling the judgment. The Constitution read together with the Organization of the Constitutional Tribunal Act provide useful hints on the powers of the CT. Article 188(3) and 33(3) of the Act allow the CT to rule on the conformity of legal provisions issued by Central State organs to the Constitution, ratified international agreements and statutes. The resolution of the SC can not be interpreted as legal provisions even in most progressive terms of constitutional jurisprudence. The SC here did not issue or lay down any other law on its own but merely applied the existing laws of Poland and the European Union on the given set of facts. The CT, however, was constitutionally correct in adjudicating on the ground of settling a dispute between two constitutional bodies. In another judgment, the CT ruled that the President of Poland had the exclusive competence in appointing judges in pursuant to Art. 179 in conjunction with Art. 144(3)(17) of the Constitution. But the judgment was eerily silent as to how the President and the KRS implemented the principles of rule of law provided not only under the Constitution but also under Article 19 of the Treaty of European Union. The CT also forgot that the SC was vicariously ruling as the ECJ, orders of which are universally binding on every member state. The CT has had a checkered history with providing justice, and one does not need Socrates’ wisdom to deduce that it was originally empowered to approve the illegal acts of the government and was always meant to be a partisan tribunal.
Pol-exit On Cards?
Just when things could not get worse, Germany’s highest court on 5th May 2020, handed down a decision overruling a previous decision of the ECJ, sending shock waves across the European Union. The case pertained to a certain bond scheme of the European Central Bank (ECB) which was previously held valid by the ECJ in 2018 but the Germany Court ruled that the ECJ’s ruling was ultra vires as it manifestly ignored the principle of proportionality which applies to the division of competences between the European Union and the Member States.
This decision was path-breaking in that the German Court overlooked the Simmenthal Principle which states that in the event of a dispute between laws of a member state and the European Union, the laws of EU shall prevail. It consequently opened the floodgates for other member nations to set aside the rulings of ECJ and proclaim final words of a dispute in their own territory. The Polish Prime Minister was quick to acknowledge and praise this judgment from the German Court in the press. Whereas the final verdict might suit the cause of the Polish Government, the contextual differences are too glaring to ignore. Firstly, the German Court’s ruling places Germany’s government in a precarious situation unlike in the case of Poland where CT is unabashedly favoring the government. Moreover, the judgment is against a single branch of the EU, namely, the ECB, whereas the Constitutional Tribunal’s judgment goes against the elementary values of the EU provided under Article 2 of the TEU.
With no written mechanism for the expulsion of member nation from the European Union and Hungary defending Poland in the EU by resolving to veto against the use of Article 7 against the latter, the possibility of imposing sanctions by EU against Poland are also only theoretical. Although with the Supreme Court hinting that it may not be possible for Poland to remain a part of the EU due to the regressive government policies and the simmering anger in the Polish camp against the constant interjections by the ECJ, we might, in the long run, see another nation bowing out of the European Union after Britain.
Neelabh Niket is a first-year law student at Hidayatullah National Law University in New Raipur, Chhattisgarh, India.
Suggested Citation: Neelabh Niket, Polexit: Will the Current Legal Issues Trigger Poland to Leave the EU?, JURIST – Student Commentary, July 10, 2020, https://www.jurist.org/commentary/2020/07/neelabh-niket-polexit
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
