The Polish Government has accused President Karol Nawrocki of leading the country towards “Polexit” with his proposal to make questioning of judicial appointments a crime.
Nawrocki, who is aligned with the opposition Conservatives (PiS), was reacting to Prime Minister Donald Tusk’s centre-left government proposal to demote or remove judicial appointees from the time of the last PiS administration.
The President in his legislative draft proposes that persistent questioning of the legitimacy of judicial appointments made by the head of state could be punishable by up to 10 years jail and that judges who refuse the professional status of colleagues could be removed.
Justice minister Waldemar Żurek said Nawrocki’s draft, if passed, would lead to Poland leaving the European Union.
“This is unprecedented. It would take us back to the legal Middle Ages. If we tried to pass this bill, we’d have to leave the EU,” he said.
Żurek accused Nawrocki being “autocratic” and of proposing “measures even more punitive than those PiS proposed to ‘muzzle’ judges with disciplinary procedures”.
“This is not just a muzzle, it’s a leash for Polish judges,” said Żurek, adding that “it’s intended to punish judges who apply EU rulings and rulings of legitimate judges”.
The government said it believes such a move would lead to Poland being challenged once more by the EU as being in violation of the rule of law.
During the lifetime of the last PiS government, Poland was persistently accused by both the European Commission and the European Court of Justice (ECJ) of being in violation of the principles of the rule of law and the independence of the judiciary.
There have been several ECJ rulings that deemed the National Court Register (KRS) to be an illegitimate body as it was deemed to be dependent on political influence due to the manner of its election (by parliament).
Several other EU member states, though, elect some of their judicial bodies by parliament and the Polish Constitution does not impose any particular mode of election of the KRS. It does, though, specify such for both the Constitutional Court and the Supreme Court.
Nawrocki has vetoed the Tusk government’s bill intended to change the way of electing the KRS that would mean all judges appointed during the lifetime of the last PiS government would be disenfranchised.
Nawrocki called the government’s move “ongoing disintegration of the judicial system” and proposed his own legislation aimed at preventing the ongoing challenges to court judgments and judicial appointments.
The government has been questioning the composition and the verdicts of the Supreme Court and the Constitutional Court as well as the validity of almost 3,000 judicial appointments made by the last president, the opposition-aligned Andrzej Duda, during the lifetime of the previous PiS government.
Those challenges have led to the overturning of some court verdicts and the threat of the emergence of what some legal experts have called a “dual legal system”.
Nawrocki and the PiS are totally opposed to any undermining of judicial appointments made by the President. They argue that the Polish Constitution clearly indicates that the power to appoint judges is in the discretion of the President and there is no means envisaged for that power and those decisions to then be challenged.
This is why Nawrocki has decided to propose legislation that sanctions those who question the powers of the head of state with regard to judicial appointments and to remove from the bench those judges who question the status of their colleagues.
Since it is the government and not the President that holds a majority in parliament, there is no chance the legislation will be passed in its current term that expires in the autumn of 2027. A right-wing majority in the next parliament may, though, be more partial to it.
When announcing his bill, Nawrocki said if the government “rejects dialogue” on the rule of law issue, he would seek to call a national referendum on his proposals and “let the citizens decide”. The head of state may only call a referendum if parliament approves it, though.
With the government and President totally at loggerheads and unable to force through their legislative will, Poland’s judicial system seems set for more gridlock with continuing disputes over the status of judges and legitimacy of particular courts.
