Poland's 'July coup' and what it means for the judiciary

On Tuesday (18 July), the Polish parliament proceeded with the reform of the Supreme Court Act. This came without proper consultations, a surprise last-minute addition of the act to the parliament's daily agenda, and while thousands of people were protesting in front of the building.

A very heated debate, with shouting and emotional arguments, saw PiS leader Jaroslaw Kaczynski accusing the opposition of being "rats" that killed his brother, former president Lech Kaczynski, who died in a plane crash in 2010. Even the church has called on MPs to calm down.

Three pieces of legislation put Poland's constitutional order at stake.

The first two are on the National Council of the Judiciary of Poland (NCJ), and were already voted on Friday (14 July). They now await the approval of Poland's president, Andrzej Duda, who has since proposed amendments before agreeing to sign.

The last one concerns the Supreme Court (SC), which was directed to the parliamentary committees for further work, but may still be voted on Wednesday or Thursday (19-20 July).

"These are fundamental reforms that deeply transform our political system. The process lacks transparency, the drafts were not properly opened to opinions before proceeding. They violate the constitution in number of ways," Ewa Letowska, a former Supreme Court judge, told EUobserver.

Political nominations

There is a long list of controversial provisions in the proposed legislation.

The first two laws on the NCJ would grant authority to the parliament to select, by a simple majority, 15 out of the 25 NCJ members - practically meaning that the judges will be chosen by the governing party. Previously, these 15 judges were chosen by different self-governing judicial bodies.

The new legislation would also shorten the term of the current members of the NCJ, and introduces a two-stage process of appointing judges to all other courts in the country.

All the nominations recommended by the assembly of 15 politically-nominated judges will have to be approved by a second assembly, composed of the 10 other NCJ members, who are representatives of the executive power, as well as four members of parliament.

"This can simply result in a situation in which judges, who will publicly criticise authorities, will not be selected by the NCJ," noted Letowska.

She also pointed out that the judge selection procedure and the composition of the NCJ are set down by the Polish constitution.

"This can only be amended by an absolute majority, through a constitutional reform. Therefore, these proceedings are against the law," she said. "PiS was not granted such a majority, so they are trying to change the system through the back door."

Bogdan Banaszak, a constitutionalist who supports the reforms, argued that there is nothing wrong with a system where judges are selected by MPs.

"The impartiality of the judges is a quality that cannot simply be taken away by the fact that they are selected by the governing majority," he told EUobserver, adding: "After all, who has the democratic legitimacy to govern?"

Representation rule

The bill was negatively assessed by bodies such as the NCJ itself, the Council of Europe's commissioner for human rights, the Supreme Court, and the executive board of the European Network of Councils for the Judiciary, among others.

On Tuesday evening, president Duda said that he will not approve the Supreme Court reform unless the Polish parliament accepts proposed changes to the NCJ law.

He proposed that instead of picking judges by simple majority, they will have to be accepted by three-fifths of the MPs - with at least half of all MPs present.

Letowska noted, however, that this amendment "will not reverse the fundamental changes to the system," adding that: "It might be more difficult for the governing party but, with the support from the other right-wing parties, it is achievable."

In Polish society, the government narrative about the "judicial clique" holding onto power comes amid a wider crisis of confidence.

The level of trust in the courts as public institutions is not very high. In a poll, around half of the respondents gave the judiciary system a bad rating, and 96 percent said they believe that their ruling judges are subject to different interests or pressures.

"The governing party feeds on social anxieties and high-profile scandals such as, for example, a reprivatisation scandal that broke last year in Warsaw and outraged the public," Jaroslaw Flis, a sociologist at Jagiellonian University, told EUobserver.

As a result, despite the controversial reforms, the governing party still enjoys steady support – at over 30 percent.

Going even further

The proposed reform of the Supreme Court goes even further than the NCJ reform.

PiS wants to terminate all tenures of the judges currently in the court. The minister of justice will decide which judges will remain in office, but the criteria for that have not yet been stated. And the rest of the judges will be forced to retire.

If this happens to be the first-president of the Supreme Court, the new one will then be selected by the minister of justice.

The new members of the court will be selected by the National Council of the Judiciary, which, as a result of last week's law, will consist of members that were mainly appointed by a parliamentary majority.

The selection will have to be approved by the representatives of government, parliament and the president sitting in the first assembly of NCJ.

According to the proposed reform, the Supreme Court proceedings would be overseen by the justice minister. The minister would have the right to ask for reviews of cases on which the court has already ruled and to personally oversee first-instance rulings.

PiS explains that this would "ensure maximum the impartiality and effectiveness" of the court. But for Letowska, these provisions would be "just another tool to put down judges independence."

"This is a very dangerous bill and we should be very critical of it. It not only allows politicians to dismiss judges, but it also gives the current government a tool to install the Supreme Court with the judges loyal to the party," Michal Boni, an MEP from the centre-right EPP group, told EUobserver.

Critics fear that this could be a threat to the election process, as it is the Supreme Court that adjudicates on the validity of the parliamentary and presidential elections – by examining electoral complaints. It also controls the budgets and spending of political parties.

In 2016, the Supreme Court presented a very strong opinion regarding the draft Law on Assemblies, calling it "an attempt to violate the constitutional order of the Republic of Poland”.

"This change deepens the Polish constitutional crisis. This will lead to a situation where the basic human right to a fair trial by an impartial court becomes illusory," MEP Kazimierz Michał Ujazdowski told EUobserver.

Ujazdowski left PiS after the country's Constitutional Court was dismantled.

Experts also point out that the changes grant extraordinary powers to the minister of justice, Zbigniew Ziobro, a close ally of PiS leader Jaroslaw Kaczynski.

Ziobro already became prosecutor general when the government merged two functions that were previously distinct.

With the newly granted prerogatives to appoint and dismiss judges - including those at the Supreme Court - or to hand-pick judges for particular court cases, the minister of justice also becomes a "super-judge."

"Such concentration of the judiciary, executive and legislative powers in the hands of one person is not a guarantee of improvements or democratisation. It is a guarantee of an abuse," said Agnieszka Dziemianowicz Bak, of the left-wing Together party.

Legal harassment

The opposition is worried that this proceeding, aimed at subjugating the courts to the ruling PiS party, are just a step on the road towards further changes, such as the recolonisation of private media and quick territorial changes in constituencies before next year's local elections.

The local elections are crucial for the ruling party to gain more power – on the local levels, PiS has not been as successful as in the latest parliamentary election.

Of the 107 Polish cities that have mayors, PiS members are only in charge of 11, and the biggest one has fewer than 100,000 people.

"Local self-governments are pretty strong and PiS already tried to introduce changes to weaken them. The ruling party wanted to install governmental financial inspectors to monitor the self-governments' spending," Jaroslaw Flis, the sociologist, explained.

The reform of the judicial system could be followed up with an attempt to increase control over the media.

A bill to force foreign capital owners out of the media market could be tabled before the summer holiday.

"This law makes it possible for the governing party to practically paralyse free press, by suing the media for anything" ... "It’s absolutely scary," Letowska, the former Supreme Court member, said.

The developments in Poland seem to be inspired by Hungary, which has also been backsliding on democratic standards, according to critics.

"Changes in Hungary enabled the nomination of judges that are favourable to the government, including judges of common courts. Moreover, the control of the Constitutional Tribunal was practically eliminated" Jan Szyszko, a European affairs analyst from Polityka Insight, wrote.

He pointed out that the politicisation of Hungary's courts was criticised by international organisations. However, stopping it was difficult because most of the regulations were enshrined in the country's new constitution, which Hungarian PM Victor Orban's party passed legally, thanks to a large enough majority.

Nevertheless, in the case of Poland it might be different.

On Wednesday, the European Commission said that it was "very close to triggering Article 7", the EU clause to sanction countries that breach the rule of law.