CONTENTION

“Two years ago, a democratically elected Polish government, led by a party that calls itself ‘Law and Justice,’ began illegally dismantling its own constitution [emphasis added]. The process began with illegal appointments to the Constitutional Tribunal, and has, according to a European Commission investigation, included the passage of 13 laws designed to undermine the independence of the judiciary.”
 

- Anne Applebaum, The Washington Post, December 21, 2017


RESPONSE (citing the Polish Constitution of 1997)

The Polish Constitution grants the parliament broad prerogatives to organize, define, and regulate Poland’s complex judicial system.
 

  • A clause applying to judges in a general manner states: “judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes [emphasis added]” (Art. 178, Par. 1).
     

    • Opponents of the reforms usually invoke Article 180, which states that “judges shall not be removable” (Par. 1).
       

    • However, Paragraph 4 of Article 180 gives legislators the right to set a mandatory retirement age.
       

    • Even more importantly: “Where there has been a reorganization of the court system or changes to the boundaries of court districts, a judge may be allocated to another court or retired with maintenance of his full remuneration [emphasis added]” (Art. 180, Par. 5).


The Constitutional Tribunal

  • The judges are to be “chosen individually by the Sejm for a term of office of 9 years from amongst persons distinguished by their knowledge of the law.”
     

    • No person may be chosen for more than one term of office” (Art. 194, Par. 1).
       

    • The Constitution says nothing about the timing of the appointments.
       

  • Article 195 states that “judges of the Constitutional Tribunal, in the exercise of their office, shall be independent and subject only to the Constitution” (Par. 1).
     

    • At the same time, Article 195 demands that “during their term of office, [judges] shall not belong to a political party, a trade union or perform public activities incompatible with the principles of the independence of the courts and judges” (Par. 3). This shows that judicial independence imposes obligations not only on the government but also on the judges themselves.
       

  • The Constitution also makes clear that “the organization of the Constitutional Tribunal, as well as the mode of proceedings before it, shall be specified by statute [emphasis added]” (Art. 197).


The National Council of the Judiciary

  • The National Council of the Judiciary is a 25-member body consisting of 15 judges “chosen from amongst the judges of the Supreme Court, common courts, administrative courts and military courts” (Art. 187, Par. 1.2).
     

    • It is noteworthy that the Constitution does not specify whether these 15 judges are to be picked by the Sejm or the National Council of the Judiciary, but merely states that they are to be “chosen”.
       

  • Paragraph 4 of Article 187 declares: “The organizational structure, the scope of activity and procedures for work of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute [emphasis added].”


The Supreme Court

  • The Constitution states that, in addition to its regular duties, “the Supreme Court shall also perform other activities specified in the Constitution and statutes [emphasis added]” (Art. 183, Par. 2).


The Tribunal of State

  • Legislation determines the penalties handed down by the Tribunal of State (Art. 198, Par. 3).
     

  • “The members of the Tribunal of State, within the exercise of their office as judges of the Tribunal, shall be independent and subject only to the Constitution and statutes [emphasis added]” (Art. 199, Par. 3).
     

  • Legislation also specifies “the organization of the Tribunal of State, as well as the mode of proceedings before it” (Art. 201).


KEY POINTS

  • Poland’s 1997 constitution was drafted and implemented by post-communists, who rejected the input of many other elements of society, including Solidarity and conservatives.
     

  • The Constitution does indeed contain some inconsistent and conflicting provisions, especially regarding the parameters of “judicial independence.”
     

  • Nevertheless, the Constitution gives broad scope to legislators to regulate and reorganize the judicial system by statute.