The Polish Government has adopted a resolution to address what it claimed was a rule-of-law crisis affecting judicial institutions.
It decided on December 18 that it would no longer publish rulings by the Constitutional Court in the Journal of Laws of the Republic of Poland and that it would present warnings of “legal doubts” on decisions taken by the Supreme Court and the National Judicial Council.
“The legislative and executive authorities gained decisive influence over judicial appointments under previous governments,” the resolution stated, claiming that influence had eroded the judiciary’s independence.
The resolution stated that Prime Minister Donald Tusk’s centre-left government was seeking “solutions to restore judicial independence and constitutional compliance”, which it alleged were violated by the former Conservative (PiS) government’s judicial reforms.
According to the government, these PiS reforms compromised judicial independence and exposed the courts to “undue influence from the legislative and executive branches”. It alleged the current Constitutional Court was incapable of fulfilling its constitutional duties due to irregularities in the appointment of judges since 2015.
The government’s document did not explain how the executive decisions on which court rulings should be published squared with the principles of judicial independence and the separation of powers, which the Tusk administration claimed it was attempting to restore.
Chief Justice of the Constitutional Court Bogdan Święczkowski reacted to the government’s resolution by saying that it was “unprecedented in the history of independent Poland, but was reminiscent of communist times and its doctrine of the judiciary being subject to political will.”
In the European Court of Justice (ECJ), only three judges out of the Constitutional Court’s composition of 15 were appointed in an inappropriate manner when the incoming PiS parliamentary majority ruled that annulled a previous parliament’s decision on the election of judges, the government said.
Nevertheless, it maintained in its resolution that issuing further rulings by that Polish court would only “deepen the crisis”. It decreed that the decisions taken by it would not be published, it said, to prevent their integration into the legal system.
The government has also decided that judgments made by the Supreme Court and the National Judicial Council [the body responsible for recommending judicial appointments] that were felt to have been made “under questionable circumstances”, would include annotations warning of their potential legal and constitutional flaws.
During a press conference on December 18, Tusk addressed the decision by the Supreme Court concerning funding for PiS that the majority of the members of the election regulator (PKW) have chosen to disregard, thereby blocking the money due to the opposition party.
“We have adopted a government resolution directly addressing the issue of Supreme Court verdicts in Poland and the constitutional court … especially those made by judges who, according to Polish law and the constitution, should not be serving there,” he said.
He added, “The publication of Supreme Court verdicts will include annotations, whenever these are considered by the government to be flawed from the constitutional or legal perspective.”
Professor of constitutional law, Anna Łabno, an associate of the conservative legal think tank Ordo Iuris, has criticised the government’s actions.
“What is being proposed today is a violation of judicial independence, the independence of the courts, that is, a denial of everything that is the foundation of a democratic state,” she said.
Constitutional lawyer Ryszard Piotrowski and law professor and former MEP Genowefa Grabowska have in turn appealed to Polish President Andrzej Duda to take the radical step of dismissing members of the PKW who voted to ignore the Supreme Court’s decision to restore funding for the PiS.
The government has over the past year produced legislative proposals designed to remedy the situation in both the National Judicial Council and the Constitutional Court. These have not become law as they have been opposed by Duda and the opposition because they would remove all judges presently sitting in the Constitutional Court and many judges who were appointed by Duda.
He has argued that the Polish Constitution made it clear that the final decisions on appointing judges lay with him and that he would not accept legislation that called into question or reversed those decisions.
