“Morawiecki's real objection is not that the Polish judiciary is Communist, but that it is independent. To get rid of its independence, nearly 40 percent of current Supreme Court judges will now be forced to retire, having reached the new mandatory retirement age of 65.
The president of the Supreme Court will be immediately removed from office, even though her constitutional term of six years has not yet expired. This ‘reform’ is simply a pretext to establish a Supreme Court favorable to the prime minister's political party, known as the PiS — a court whose power, by the way, includes the final say in the validity of national elections.”
- Michał Wawrykiewicz et al., “Poland’s government is undermining the rule of law,” The Washington Examiner, January 2, 2018.
Problems with the Supreme Court
The Supreme Court, like other Polish courts, contained numerous judges with communist-era pedigrees.
Supreme Court judges, like other judges in post-communist Poland, were accused of arrogance, a hostility towards transparency and democratic oversight, and rulings based on inconsistent legal principles.
What the Constitution Says
The Constitution devotes a relatively short and brief article (Art. 183) to the Supreme Court, which “exercise[s] supervision over common and military courts regarding judgments” (Par. 1).
Paragraph 2 states rather ambiguously and open-endedly that “the Supreme Court shall also perform other activities specified in the Constitution and statutes.”
Paragraph 3 specifies that “the First President of the Supreme Court shall be appointed by the President of the Republic for a 6-year term of office from amongst candidates proposed by the General Assembly of the Judges of the Supreme Court.”
Pre-Reform Legislative Status
The country was then governed by a post-communist coalition headed by Prime
Minister Leszek Miller; the president was post-communist Aleksander Kwaśniewski.
The legislation of 2002 divided the Supreme Court into four chambers and allowed the court to determine its own internal proceedings and organization, which had previously been determined by the President.
In addition to serving as the court of appeals for common and military courts, the Supreme Court also:
rules on election protests and confirms the validity of elections (for the Presidency, Parliament, and Senate) and referenda (Art. 1, Par. 2);
“issuing opinions on draft legislation and other normative acts which provide the basis for the functioning of courts and court rulings, as well as other laws in which it [the Supreme Court] considers relevant [celowe]” (Art. 1, Par. 3).
The Supreme Court is divided into four chambers: the Civil; Penal; Labor, Social Insurance and Public Affairs; and Military ones (Art. 3, Par. 1).
The General Assembly of the Judges of the Supreme Court (GAJSC) selects two members of the National Judiciary Council (Art. 16, Par. 4).
On the motion of the GAJSC the President of Poland determines “the number of judicial positions in the Supreme Court, including the number of Presidents of the Supreme Court” (Art. 23).
Supreme Court judges must retire at the age of 70. They can voluntarily retire at 65; and if they're a Supreme Court judge for 9+ years, they can retire at 60 (Art. 30, Paragraphs 1-2).
Law and Justice passed an initial law on the Supreme Court in July 2017. It included:
Restructuring the four chambers of the Supreme Court into three.
All judges were to be retired, with the exception of those retained by both the President and the Minister of Justice.
The bill was vetoed by President Duda, who proposed his own draft (which was passed in December).
The latest (and now legally-binding) law – the Act of December 8, 2017 (which took effect on April 3, 2018) – includes:
The introduction of a special appeal [skarga nadzwyczajna] to reopen/revisit previous judgements from the past twenty years.
The addition of two new chambers.
A mandatory retirement age of 65.
An accelerated procedure for suspending judicial immunity.
On October 19, 2018, the EU’s European Court of Justice (ECJ) ordered Poland to “immediately suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges.”
Given the EU’s threat to invoke Article 7 of the union treaty – which would deprive Poland of its voting rights – and the prospect of punitive financial measures, the Polish government complied with the verdict despite vehemently disagreeing with it.
Consequently, twenty-two Supreme Court judges, including Małgorzata Gersdorf (the SC President), Józef Iwulski (the head of the Labor Chamber), and Stanisław Zabłocki (the chief of the Criminal Chamber) were reinstated.
Judges whose terms began before the November 2018 amendment can retire at the age of 70 (as per the 2002 law); jurists with terms commencing after November 2018 will have to retire at 65 (unless the President of Poland grants the jurist's request to extend his or her term).
Although the Polish government remains committed to judicial reform and continues to view it as essential, it is simultaneously committed to Poland’s EU membership; as a result, the government complied with the ECJ ruling.
Unlike in the United States, where the President nominates Supreme Court justices and the Senate confirms them, the Polish system is based on candidates generated by the National Judiciary Council who are confirmed by the President.
Also unlike in the U.S., the Polish Supreme Court does not opine on the constitutionality of legislation (that is the prerogative of the Constitutional Tribunal).
The Polish constitution devotes relatively little attention to the Supreme Court.
The opponents of the current judicial reforms frequently invoke Article 183, Paragraph 3, which specifies a six-year term for SC judges.
The supporters of the current reforms point to Article 180, Paragraph 5: “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.”
This is a historical precedent from 1990, when the terms of the communist Supreme Court justices were shortened.
The 2002 law on the Supreme Court, passed by a post-communist government, set the mandatory retirement age at 70; neither the Supreme Court nor the Constitutional Tribunal challenged this as unconstitutional or an infringement of judicial independence.
The disputes over the constitutionality of this and other recent judicial reforms can be largely attributed to problems and inconsistencies plaguing the post-communist 1997 Polish Constitution.