Similarly to previous amendments concerning the judiciary system, this time as well the governing majority aimed at extending political control over judiciary system. Also, as in the case of earlier changes, proceedings over the new provisions were held at breakneck pace without proper consultations – the first reading of the new proposal was scheduled for the middle of the night.

Closing judicial avenues to challenge certain decisions of the National Council of the Judiciary

The authors of the draft law claim that its main aim is to implement the latest judgement of the Constitutional Court of March 2019. In its decision, the Constitutional Tribunal found unconstitutional provisions regulating the possibility to challenge the National Council of the Judiciary’s decisions concerning candidates for posts as Supreme Court justices in proceedings before the Supreme Administrative Court. The draft law abolishes this procedure. These changes are problematic for three reasons.

First of all, abolishing these provisions will de facto mean that National Council of the Judiciary’s decisions on candidates to the Supreme Court will not be subjected to any kind of judicial review. In this aspect, the National Council of the Judiciary will act beyond the reach of legality. Furthermore, closing off access to justice in this matter is in conflict with the provisions of the Polish Constitution and previous decisions of the Constitutional Tribunal, which states that this type of decision should be subjected to judicial review.

Secondly, abolishing the provisions regulating the procedure for challenging the decisions of the National Council of the Judiciary may affect proceedings pending before the Supreme Administrative Court, initiated in 2018. In light of this new law, the pending proceedings should be discontinued. In the opinion of the Helsinki Foundation for Human Rights, this provision is an example of “an attempt to interfere with a pending court proceeding. This leads to closing off access to justice for an individual, which should be treated as a violation of the Constitution”.

Last but not least, the Parliament intended to implement the decision of the Constitutional Tribunal whereas the Tribunal itself has not published the written justification of its decision yet. The Constitutional Tribunal’s oral justification presented during a hearing listed only the arguments in support of finding the provisions unconstitutional. The Tribunal did not, however, presented its views on how the decision should be implemented, as usually such directions are given in the lengthier and more complex written judgment. As a side note, it should be stated that in period 1997-2015, the Polish Parliament never rushed so quickly to implement the Tribunal’s decisions, and relying on their written justification was usually a key element in adopting the necessary changes in the law.

Adoption of the law

The draft law was presented on 17th April 2019. Its original version contained even more controversial provisions such as changes in the process of appointing the First President of the Supreme Court in a way that would make this process dependent on the will of the President of Poland. However, a week later the authors of the draft law presented a correction to their bill and dropped these provisions.

The law was proceeded at an accelerated pace. It took only 24 hours for the Sejm to conduct the entire legislative process (including three readings of the draft law, with the first reading scheduled for the middle of the night), and then in less than 14 hours the law was approved by the upper chamber of the parliament, the Senate.

The President of Poland has 21 days (until 17th May) to decide whether to sign bill into law. With the potential adoption of this legislation, the situation within the Supreme Court and the situation of its judges will become even more unstable.