Fieldnote from Poland: Democracy in Crisis as Government moves to take control of supreme court

Since we are in Poland, in the midst of the major crisis concerning the dismantling of the major institutions guarding the democratic system of the country, we want to share with you analysis by Poland’s Helsinki Foundation:
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On Wednesday late evening, the MPs directed to the Parliament the draft law amending the Act on the Supreme Court. The draft presents a wide reform of functioning of the highest instance court.

One of the most controversial provisions of the draft law states that all tenures of judges sitting currently in the Supreme Court will be terminated on a day of the Act’s coming into force. In the light of this provision, the Minister of Justice will decide which judges will remain in the office and whose term of office will be terminated. The new judges of the Supreme Court will be selected by the National Council of the Judiciary in Poland. Yesterday, the Parliament adopted changes in the Act on the Council which enable the parliament to appoint the members of the Council. Furthermore, in the light of these changes the appointment of a new judge will not be possible without the consent of the representatives of government, Parliament and President sitting in the Council.

Furthermore, in the light of the draft Law on the Supreme Court, the Minister of Justice will prepare the Statute of the Supreme Court which will regulate its works.

Last but not least, the draft Law states that the term of office of the First President of the Supreme Court expires when they turn 65 year old. Judge Małgorzata Gersdorf, the current First President of the Supreme Court, will turn 65 in November this year.

Supreme Court’s competences are very wide and it plays a crucial role in sustaining the independence of the justice system in Poland.

First of all, the Supreme Court supervises the works of the courts of lower ranks in terms of „judiciary control”. For example, the Court can adopt decisions in which it presents the legal interpretation of a provision. Such a decision is binding for courts of lower ranks. At the beginning of this year, when the Constitutional Tribunal was taken over by the governing majority, the President of the Supreme Court underlined that not it is the role of the common courts to protect, implement and interpret the Constitution.

Secondly, the Supreme Court confirms the validity of the elections to the Parliament and Presidential elections.

Thirdly, the Supreme Court has a right to issue opinions about draft legislation. For example, in 2016 the Supreme Court presented a very strong opinion regarding the draft Law on Assemblies in which it called the draft legislation „an attempt to violate the constitutional order of the Republic of Poland”.

The draft Law on the Supreme Court has been directed to the first reading in the Parliament’s plenary session which will, most probably, take place next week. The Parliament’s session next week is the last session before a long summer break. It is difficult to say whether the Parliament may adopt this law before summer.

Regardless the further schedule of works, it goes without saying that this project is highly disturbing. It poses serious threat to the independence of justice and works of courts’ in Poland.