“The independence of the National Judiciary Council, the body currently in charge of judicial appointments, will soon be emasculated thanks to these new laws. The terms of office of existing members of the Judicial Council will be terminated in violation of the Constitution. New members will now be elected by the majority of parliament, giving the PiS-led legislature to right to appoint replacement members. No longer will judges be choosing their representatives in this council, but politicians.”
- Michał Wawrykiewicz et al., “Poland’s government is undermining the rule of law,” The Washington Examiner, January 2, 2018.
Far from a partisan assault on judicial independence, the current legislation reforming the National Council of the Judiciary has a firm basis in Article 187 of the Polish Constitution.
The reforms bring greater democratic oversight into the judicial selection process (previously, judges effectively selected and oversaw themselves) and greater equilibrium into the tripartite system of checks and balances.
What the Constitution Says
Article 179 states: “Judges shall be appointed for an indefinite [czas nieoznaczony] period by the President of the Republic on the motion[wniosek] of the National Council of the Judiciary.”
The National Council of the Judiciary is a 25-member body which includes 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 fifteen judges are to be picked by the Sejm or the National Council of the Judiciary, but merely states, that they are to be “chosen” [wybranych].
The other 10 Council members are government officials/appointees and parliamentarians:
“the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic” (Art. 187, Par. 1.1) as well as “4 members chosen by the Sejm from amongst its Deputies and 2 members chosen by the Senate from amongst its Senators” (Par. 1.3).
The National Council of the Judiciary chooses a chairperson and two deputies from among its members (Art. 187, Par. 2). Paragraph 3 states that a member’s term is four years.
Article 187, Paragraph 4 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 current law regulating the National Council of the Judiciary is the Act of December 8, 2017. Also relevant is the amended Law on the Organization of Common Courts. Some of the key provisions include:
The 15 judicial members of the National Council of the Judiciary (previously appointed by the National Council of the Judiciary itself) are now to be elected by parliament – for a collective 4-year term – by a three-fifths majority. This is noteworthy as the governing Law and Justice Party does not hold three-fifths of the seats in the Sejm.
(President Duda vetoed an earlier Law and Justice bill because it did not contain a three-fifths super-majority provision; he also vetoed a previous Law and Justice bill splitting the National Council of the Judiciary into two chambers.)
Groups of at least 2,000 citizens and 25 judges received the right to put forth candidates to the National Council of the Judiciary.
The vast majority of cases will be randomly assigned by computer.
National Council of the Judiciary proceedings will be broadcast over the internet.
The termination of the terms of the members of the National Council of the Judiciary has generated great controversy.
Opponents of the government’s reforms invoke Article 187, Paragraph 3 of the Constitution: “The term of office of those chosen as members of the National Council of the Judiciary shall be 4 years.”
Supporters of the government's reforms point to Paragraph 4 of the same article: “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.”
One legal scholar has argued, on the basis of several Constitutional Tribunal rulings, that the organizational/structural changes were so far-reaching as to necessitate a reset (See Legal Opinion of Prof. Katarzyna Kaczmarczyk-Kłak dated February 13, 2017).
In September 2018, the European Network of Councils of the Judiciary (ENCJ) voted to suspend Poland’s National Council of the Judiciary claiming that the body is no longer independent.
In August 2018, Leszek Mazur, the new [from April 2018] head of Poland's National Council of the Judiciary, defiantly stated that “[our] active membership in this organization [the ENCJ] failed to save the Polish judiciary from ineffectiveness and long delays, and also did not lead to the universally propounded reforms of the justice system. In this sense, the Council’s potential suspension from the ENCJ, or even exclusion from that organization, will not harm the Polish judiciary.”
The Polish Constitution merely states that the 15 members of the National Council of the Judiciary who are judges are to be “chosen” [wybranych], without specifying whether the National Council of the Judiciary or the Sejm are to select them.
The legislation reforming the National Council of the Judiciary requires a three-fifths vote in the Sejm to elect judges to the Council. This means that the Law and Justice party (which currently holds 51.5% of the seats in the Sejm) will necessarily have to compromise with other parties.
Citizens (in groups of at least 2,000) and judges (in groups of at least 25) will now have the right to put forth their own candidates for National Council of the Judiciary.
While the opponents of the current reforms invoke the Constitution’s provision that the “term of office of those chosen...shall be 4 years,” the government argues that the Constitutional Tribunal’s rulings have previously allowed (at least theoretically) for the shortening of these terms “if...motivated by an important public interest or the elimination of pathologies.”
At least one legal expert has argued that changes as far-reaching as the current judicial reforms justify a clean reset of the Council by curtailing the terms of existing members and electing new ones.